Re: Kansas firm sells candid Wal-Mart videos

My guess is Walmart outsourced the video work to China as well.

Looks like this case is all about an issue that comes up here constantly, "work for hire", and who owns the footage.

Usually the conversation is in the context of wedding videos or much smaller scale programs for small clients. The only real difference I see is that the customer in this case is a huge multinational. Every time we talk about work for hire, the usual response somebody types is: "absent a contract with specific language, the shooter retains the rights to the footage". A sub-issue is, did they sign any NDA's or other agreements regarding trade secrets or proprietary information. Wedding footage is not very marketeable as stock, and many small business videos are so specific as to topic that they also have no real resale value to anyone, so the exploitation of the asset after the client is done with you comes up only rarely, most producers just junk or recycle the tapes because nobody would want the footage except the original client, and if that client doesn't want them, they're useless junk.

I'm not a lawyer (sorry mom) but it seems to me this points up a huge failure in Walmart's legal department, to have let this happen in the first place. My guess is, it came down to dollars, as it usually does in corporations, and especially at Walmart where shaving expenses and costs is the company religion, and nobody wanted to buy the guy out back when it would have been cheaper. Considering what Walmart spends on PR, you'd think it would have been an easy decision to buy out all the footage for whatever price the guy wanted. Even smarter would have been to arrange to own the footage outright from the start. But my guess is, this decision was not in line with Walmart corporate culture. It is no secret I'm not a fan of that company but I'm actually trying to stay neutral about that in the context of this discussion.

We don't know the whole story, but it smells funny that they would have dropped this Flagler guy's company so abruptly. I would like to know details of what happened there before a rush to judgement.

Now, to Ron's issue of trust and reputation, which is a completely separate matter from the finding of fact regarding ownership of the footage. I can tell by the force of Ron's reply that this is also a very personal issue for some folks, as it should be. But let's try to parse this out and see where it leads.

Flagler was destroyed, out of business. His only client dropped him. Not unlike what many Walmart suppliers have had happen, see Vlassic and Huffy bikes for just two examples of that... but let's stick to video-related and business-related issues right here.

If you accept on the face of it that he owned the footage, (which we normally do in these discussions) meaning he COULD release it, then it comes down to why and SHOULD he release it.

Without putting word's in Ron's mouth, I would say his opinion seems to be that trust is the most important issue, that we are like a priest or doctor in that we never leak client's dirty laundry anywhere. I think I generally agree with that, except in cases where a crime is committed and you have some duty to society to be a whistle-blower. If you get the reputation for leaking, as a gossip or a rat, however, it is pretty certain most clients that know of it won't trust you to keep their secrets either. So as a long-term business decision it looks like a bad move to do what Flagler did.

But Flagler had no long-term, and wasn't planning for one is why I guess he did what he did. Seeing the chance to make a fast few million and retire like a lotto winner, his reputation in the industry became a non-issue. This also is the only leverage he had on Walmart, a company that has armies of lawyers whose only job is to delay, obfuscate and hinder legal processes in the service of Bentonville's interests. This is a not inconsiderable force with which to intimidate a small businessman: once you ink a deal with them, you are riding the tiger and dare not get off. Again, consult the Vlassic pickle and Huffy bikes cases for real insight into those business relationships.

When we talk about negotiating tactics in business, a maxim that comes up often is: "you can't negotiate unless you're willing to walk away from the deal. If you can't say no and walk, they own you, and you're going to eventually do whatever they want."

Again, this is just a guess, but I'm guessing Walmart put Flagler in this position and told him to take a low offer or leave it, assuming he'd take it. But they forgot who actually owned the footage. He owns it, and it has value. The only real issue from a legal standpoint is how much he can get for it and from whom.

Their next step likely IMO is to try and get an injuction against releasing any more footage, on grounds of proprietary information and trade secrets. Will that hold up in a court, I can't say, but if they grant the provisional injunction at least until the case is heard, Walmart wins and quashes the footage for maybe years while appeals and counter-claims are filed, considered, and otherwise marinated thru the court process.

One issue that might support Flagler is, there are legitimate court cases out there, ongoing, concerning this client, and the footage is very likely evidence. Remember what I said about whistle-blowing in the cases where your client commits a crime. It is likely IMO that a state or federal prosecutor in a case against Walmart would subpoena that footage and get if from Flagler for free, or the cost of dub stock. In which case Walmart loses the chance to suppress that footage, Flagler makes no money either, and we have full employment for lawyers. I don't know what the rules are when it is private lawyers in a civil suit deposing or gathering evidence. But anticipating this, Flagler's only choice from a business decision point would have been to get what he could for the footage, from anyone who would pay, while it was still worth a lot. His moral choice is between him and his maker, but the moral choice in a situation like this is not always clear-cut, considering all the side issues going on. This is not a paparazzo flogging pictures to magazines and the internet of a "wholesome" starlet losing her modesty. This is a guy fighting for his life after a deal with the world's hugest company went bad and they were crushing him like a bug. Are any of you really so sure you wouldn't have made the same choice he did? I thank MY maker he doesn't put me in those choosing situations too often.

This is why I'm unwilling to actually take either side on the question of "should he". My opinion is he can, if he wants to, and that under his specific circumstances, the only way for him to survive financially was to do it. Has he ruined himself in the corporate video world? Very likely yes. So his decision had to be "was it worth it" as well as "was it right".

The rest of us usually have more options and choices.

Can we agree to continue this discussion on this purely intellectual level, and not get personal? Because anger and name-calling is not going to sway anyone or get to the truth of things, on either side. I like that the discourse on the COW is always of a more elevated nature, leaving emotions and politics aside. We already have USENET for that stuff.