Ex-contractor Flagler opens up archive to lawyers, union critics
Wal-Mart’s internal meetings are on display in three decades worth of videos made by a Kansas production company scrambling to stay in business after Wal-Mart stopped using the firm.
Wal-Mart Stores Inc. dropped longtime contractor Flagler Productions in 2006. In response to losing its biggest customer, the small company has opened its archive, for a fee, to researchers who include plaintiffs’ lawyers and union critics seeking clips of unguarded moments at the world’s largest retailer.
Those moments never meant for public display include a scene of male managers parading in drag at an executive meeting, a clip used by union-backed critics at Wal-Mart Watch for a recent advertisement castigating the retailer’s attitude toward female employees.
“The videos provide insight into the company’s real corporate culture when they’re not in the public eye,” Wal-Mart Watch spokeswoman Stacie Lock Temple said Tuesday.
Much of the interest in the candid videos is coming from plaintiff lawyers pursuing cases against Wal-Mart.
“The rarity is that it exists at all,” said Brad Seligman, lead attorney in a massive class-action lawsuit that alleges Wal-Mart discriminated systemically against female employees.
“Once in a while you come upon documents that are helpful in a case,” the Berkeley, Calif.-based lawyer added. “What’s amazing about this is that this company has a video record going back many years showing senior management in at times fairly candid situations.”
Seligman said one clip from Lenexa, Kan.-based Flagler shows Wal-Mart founder Sam Walton in the late 1980s telling the board of directors that not enough women were in management.
Wal-Mart denies it discriminates against women and in recent years has published its annual women and minority hiring statistics.
Wal-Mart said it is unhappy with the public airing of its video record.
“Needless to say, we did not pay Flagler Productions to tape internal meetings with this aftermarket in mind,” Wal-Mart spokeswoman Daphne Moore said.
She declined to comment on any legal steps the company might be considering.
Flagler says Wal-Mart has no legal power over the videos because the two sides did not sign a contract when founder Mike Flagler was hired in the 1970s to produce Wal-Mart meetings and management conferences.
Co-owner Mary Lyn Villaneuva said the business continued producing and filming such events as shareholder meetings and an annual store manager conference until it was suddenly dropped by Wal-Mart in 2006.
Wal-Mart was about 95 percent of Flagler’s business, Villaneuva said. The loss meant the company nearly collapsed. So it looked to its assets and realized that it could charge for access to its video library.
“We would like to go back to being a production company, but right now we’re getting by as an archive,” Villaneuva said.
Flagler charges $250 an hour for video research and additional fees for a DVD copy of film clips.
Villaneuva said Wal-Mart has offered to buy the video library for $500,000. But Flagler considers that too low for a collection they value at several million dollars. She said the two sides have been in contact off and on about a possible sale.
Wal-Mart declined to comment on whether it is in talks to buy the archive."
Re: Kansas firm sells candid Wal-Mart videos by walter biscardi on Apr 10, 2008 at 1:23:10 pm
[Randy Wheeler]"Flagler says Wal-Mart has no legal power over the videos because the two sides did not sign a contract when founder Mike Flagler was hired in the 1970s to produce Wal-Mart meetings and management conferences."
I'm going to be REAL interested to see how this claim holds up once the lawyers get involved. More power to them if they can hold on to this claim and keep selling the videos, but I'm really hoping those guys got incredibly good legal counsel before opening up their archives.
Walter Biscardi, Jr.
Biscardi Creative Media HD and SD Production for Broadcast and Independent Productions.
Re: Kansas firm sells candid Wal-Mart videos by Mick Haensler on Apr 10, 2008 at 1:53:48 pm
My first question when I read this article is why did Wal Mart drop them. I'm sure there's two sides to that story. I would think any company willing to breach client trust like this more than likely was not on the up and up in the rest of their dealings. The work examples on their web site are pretty top notch, so obviously quality of work was not the issue. I find it hard to believe a company like Wal Mart didn't have an iron clad agreement as to the rights of the footage. This sounds like a vindictive move on the part of Flagler for being dropped. Since they're holding out for more money, I doubt they're doing this for some greater moral purpose. I pose this question to the forum. If faced with the same situation, what would you do?
Re: Kansas firm sells candid Wal-Mart videos by Ron Lindeboom on Apr 10, 2008 at 2:51:55 pm
I hope that Flagler gets nailed to the wall and that the pain of their idiocy haunts them for the rest of their lives. This is one of the biggest breaches of trust I have ever seen -- well, other than the American political system.
Wal-Mart has a right to privacy and when they hired this company, I am sure that privacy was one of the terms and conditions. (I am NOT condoning WM's business practices, that is a different issue. To be honest, I don't like WM and think they destroy local economies.)
I have no doubt in my mind that this is nothing more than a money-grabbing ploy by a bitter loser and if Wal-Mart had not dumped Flagler, I don't believe that we'd be seeing this stuff today.
Shame on them. What unprofessional hacks, they give the corporate video industry a bad name and this hurts everyone's reputation (as I am sure this will cause a lot of mistrust in the industry). I hope they get what they truly deserve -- and that isn't anything nice, I tell you.
Creeps, pure creeps, in my opinion.
Yours may vary.
Ron Lindeboom
PS: Me dear ole sainted Dad always warned me that two wrongs don't make a right. Boy this sure shows that one to great effect.
PSS: But three wrongs squared, to the fourth power, DO make a right -- according to Gary Larson (who isn't my Dad).
Re: Kansas firm sells candid Wal-Mart videos by Jim Hyde on Apr 10, 2008 at 3:41:16 pm
If I had wal-mart by the danglies like Flagler does I would squeeze em for all they're worth too. I'm sure there is another side to the story and yes it's a dirty move making the videos available but hell Wal-Mart is one the most evil corporations around.
Re: Kansas firm sells candid Wal-Mart videos by Ron Lindeboom on Apr 10, 2008 at 3:53:39 pm
In my opinion, you are by your own admission what I consider to be every bit the contemptible opportunist that Flagler is.
If you can't see how this is going to backfire on the already ailing corporate video profession, then I also believe that you are a blind self-centered opportunist, and someone that I hope finds no place in corporate video.
Remind me to never listen to anything you have to say.
Re: Kansas firm sells candid Wal-Mart videos by Jim Hyde on Apr 10, 2008 at 4:00:29 pm
All I'm saying is Wal-mart deserves everything it gets, if you're still listening. I hope it helps the unions and lawyers fight against Wal-Mart. Looks good on 'em.
Re: Kansas firm sells candid Wal-Mart videos by Jim Hyde on Apr 10, 2008 at 4:02:48 pm
Also, for what it's worth I don't think this will affect the corporate video world one single bit other than making businesses think - "gee maybe I should get them to sign a contract saying who really owns the footage."
Re: Kansas firm sells candid Wal-Mart videos by Jeremy Doyle on Apr 10, 2008 at 4:11:48 pm
I'm just really surprised that a company the size of walmart doesn't have an internal video dept. They have enough closed circuit TV's in the stores to keep them busy.
Re: Kansas firm sells candid Wal-Mart videos by Don Greening on Apr 10, 2008 at 4:44:07 pm
I for one do not like WM. My reasons are my own and are not pertinent to this thread. However, when a company like Flagler does this to a client, WM or not, and their intentions become public it reflects badly on all aspects of our industry. It's no different than blatant racism. It diminishes us all.
Re: Kansas firm sells candid Wal-Mart videos by Steve Wargo on Apr 12, 2008 at 3:23:59 am
They have a multi million dollar video facility in their main building in Bentonville, Arkansas. I've stood in there. Their shoot studio is a 40 x 40 room with a set in each corner and a set on each wall for a total of eight. We were there in '95 to bid on a job that included putting a video program on the in-store monitors. They told us that the stores could not afford $15 each to see this happen. This was a lie and they stole our ideas and use them today in many of their stores. It was stupid on our part to give our ideas away but it was a huge, 10 year contract that we were talking about. At the time, WalMart was still a supporter of US companies.
After seeing their studio, I asked "If you have this huge facility, why are you talking to us?". Their answer was that the project we were talking about was way too small for their facility.
Even though they stole our ideas and we were left out in the cold, it never crossed my mind to act like a 10 year old and seek revenge. I chalked it up to experience and moved forward.
Flagler was ignorant for depending on one source for their income.
This move will end up costing them anything they have left. Stupid. Immature. Traitors. Backstabbers. And if anyone agrees with them, you need to rethink a few things. Yeah, they might be the scourge of the retail industry, but you don't sink to the level of dog poo when you get jilted.
No sympathy for Flagler. They're finished.
Steve Wargo
Tempe, Arizona
It's a dry heat!
Sony HDCAM F-900 & HDW-2000/1 deck
5 Final Cut (not quite PRO) systems
Sony HVR-M25 HDV deck
2-Sony EX-1 HD .
Re: Kansas firm sells candid Wal-Mart videos by Mark Suszko on Apr 10, 2008 at 5:06:18 pm
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.
Re: Kansas firm sells candid Wal-Mart videos by Ron Lindeboom on Apr 10, 2008 at 5:41:46 pm
[Mark Suszko]"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."
Being a participant in the crime for 30 years makes you more a co-conspirator than a saintly whistle-blower, does it not, Mark?
These guys aren't doing it for the ethics. That is clearly not the issue.
To me, one of the best businesspeople that I know is Steve Crimmel who has worked with Supertramp, The Doors, Quincy Jones, Frank Sinatra, Lionel Richie, Neil Diamond, Kenny Loggins and many, many others.
While engineering sessions for these people, he has seen and witnessed many things that would drop your jaw. Did he ever tell me any of them? No. The only reason I know anything about anything is that I know his wife who was also there. She told me because we've known each other many years and she knows that I have also produced sessions for many artists. When I mentioned a word of any of this to Steve, he got right on the phone and asked his wife to drop the stories and never tell anyone. Good advice and a prudent request in my opinion. Out of respect for Steve, I have let the stories die with me.
I know many stories of many people in this industry that would drop your jaw. I don't relay them.
Don Henley's "Dirty Laundry" springs to mind.
Now where's iTunes??? Ah, there it is...
Kick 'em when they're up, kick 'em when they're down..."
Re: Kansas firm sells candid Wal-Mart videos by Ron Lindeboom on Apr 10, 2008 at 7:35:24 pm
[Mark Suszko]"...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."
This is an assumption that may or may not hold up in court. There are many precedents and legal barbs on which Mr. Flagler's claims could be impaled.
Me, I think it is far from assured that he owns this footage.
I will guarantee that the Wal-Mart lawyers will be sifting through every document, contract and anything else that is related to this -- documents that none of us are now privy to.
There are also many things that can be argued in the name of "trade custom and tradition" when videotaping corporate board meetings. There are also arguments and implied covenants, etc., that I believe will find a court likely unwilling to castrate a major corporation's right to expected privacy of its board meetings, etc.
I don't believe for a minute that this is a clear case of ownership by the one holding the camera. But the courts will decide that and when there are armies of lawyers involved, it be be a while before it all becomes crystal clear.
Re: Kansas firm sells candid Wal-Mart videos by Don Greening on Apr 10, 2008 at 8:12:24 pm
[Ron Lindeboom]"it be be a while before it all becomes crystal clear. "
And when the smoke clears and everyone goes home the corporate people won't be remembering the outcome of who had legal ownership over who's intellectual ideas or videotaped property. What they WILL remember is that a video production house tried, unsuccessfully or not, to screw over one of their clients. The corporations will now make sure that from this time forward all future dealings with "those types" better come with an iron clad agreement because after all, video people can't be trusted.
Re: Kansas firm sells candid Wal-Mart videos by Ron Lindeboom on Apr 10, 2008 at 8:37:57 pm
[Don Greening]"What they WILL remember is that a video production house tried, unsuccessfully or not, to screw over one of their clients. The corporations will now make sure that from this time forward all future dealings with "those types" better come with an iron clad agreement because after all, video people can't be trusted. One rotten apple..."
A more probable outcome will be that most all video production for major or even mid- to large-sized corporations will go in-house, with all rights automatically retained by the company.
Another probable outcome will be that many companies will quit using smaller shops and will use agencies that have long track records of knowing where the lines are drawn and why things must be kept confidential, etc.
The "grown-ups" play like grown-ups and know that even implied covenants are there, exist, and need to be honored.
Some people want to treat business like a walk along a cliff with them seeing how close to the edge they can get without falling over and getting hurt. Me, I'd rather understand that when I work with a client, I am there as a part of their team and my duty is to to do the absolute best I can under the circumstances. I am not there to think in terms of: "Ah, did they cross every legal 't' and dot every legal 'i' -- if not, then 'ah, ha!' I have them by the groin!"
That is an insane way to do business.
Like you, Don, I think that this episode is going to have far farther reaching affect than some want to believe. As you postulate, humans forget the facts but the feelings have a way of embedding themselves in the sub-conscious. In the end, the erosion of trust and the lack of respect for people's rights are far more serious issues than what the letter of the law may say -- especially in a world where contracts seem to be made to be broken.
But hey, call me old fashioned. I once had a girlfriend who called me "...a 19th century moralist living in the 20th century." In response I said, "thanks." Today I have moved on to being a 19th century moralist living in the 21st century. Now that's progress, baby!
Re: Kansas firm sells candid Wal-Mart videos by David Roth Weiss on Apr 10, 2008 at 8:52:19 pm
[Ron Lindeboom]"I think that this episode is going to have far farther reaching affect than some want to believe. As you postulate, humans forget the facts but the feelings have a way of embedding themselves in the sub-conscious. In the end, the erosion of trust and the lack of respect for people's rights are far more serious issues than what the letter of the law may say"
Don't shut down the Cow just yet. I'll bet ya the next news cycle will simply bury this and we''l be onto discussing NAB and what was and wasn't there this year.
David Roth Weiss
Director/Editor
David Weiss Productions, Inc.
Los Angeles
POST-PRODUCTION WITHOUT THE USUAL INSANITY ™
A forum host of Creative COW's Business & Marketing, and Indie Film & Documentary forums.
Re: Kansas firm sells candid Wal-Mart videos by robert reed on Apr 10, 2008 at 9:00:59 pm
I loved the NAB battle here. I learned more than I ever knew about NAB. Enough that I won't be going this year. Going to save my money and buy something I've really needed instead.
Re: Kansas firm sells candid Wal-Mart videos by Steve Wargo on Apr 12, 2008 at 4:01:56 am
[Ron Lindeboom]". I once had a girlfriend who called me "...a 19th century moralist living in the 20th century." In response I said, "thanks." Today I have moved on to being a 19th century moralist living in the 21st century. Now that's progress, baby! "
Ron, I am steaming over this one. The actions of this vindictive pair could hurt all of us. I have stuff in my library that could cause many firings, lawsuites, public humiliation, divorce and every thing else under the sun. Someone earlier said that we needed to look at this professionally and drop the name calling. However, I think someone needs to take this low life Flagler cry baby, piece of crap out and beat some sense into him. Speaking about him on a professional level is an injustice to the word itself. The backlash to the rest of us could be incredible.
When our clients hire us, they expect a certain level of professionalism on our part which includes keeping company business where it belongs, with the company, just like Vegas. Vegas' entire campaign is "We won't rat you out". I agree that if we were to see some flagrant violation of human rights or major crime, we should deal with it in a professional manner. That would entail telling the client that we no longer wish to have a business arrangement with them and then contact the proper authorities to get the wheels of justice rolling. I was on a $3000 a day "exercise video shoot" once when the main girl's top came off and we told producer that we didn't work in the porn industry. He said that he would "Tell the world" that we walked out on him and we did just that. Any "word" from him and the consequences would have been drastic. No court house and no lawyers. He knows that I have no problem doing 30 days to protect my reputation.
As for Flagler, getting fired and then putting his client's secrets out there for sale is nothing but pure GREED, GREED, GREED, mixed with the ethics of a teenager. There isn't one ounce of professionalism involved here, just sheer greed.
If he hates WalMart so much, he should begin by returning the money he took from them. Oh, he won't do that? So, it's ok to keep the money they gave him and if he had a problem with their corporate policies, he should have quit. But no, his greed kept him taking the checks to the bank. What a pathetic little weasle.
Steve Wargo
Tempe, Arizona
It's a dry heat!
Sony HDCAM F-900 & HDW-2000/1 deck
5 Final Cut (not quite PRO) systems
Sony HVR-M25 HDV deck
2-Sony EX-1 HD .
Re: Kansas firm sells candid Wal-Mart videos by Ron Lindeboom on Apr 12, 2008 at 2:52:58 pm
[Steve Wargo]"Ron, I am steaming over this one. The actions of this vindictive pair could hurt all of us."
I couldn't agree with you more, Steve. The backlash from this is going to be with us for years.
The best defense is a good offense, as they say. In that, I think that those here who have outlined their policy of "it all belongs to the client and they can have it all if they go" is the only real pitch that is going to hold water in the days ahead.
Trying to hold to any other policy in a negotiation with a new corporate client is going to foul the air like a fart at a wedding.
Re: Flagler must be smoking crack, imnsho... by Ron Lindeboom on Apr 10, 2008 at 4:22:14 pm
People can argue Wal-Mart's ethics are in the toilet. Me, I don't like the company one bit -- BUT there is a far bigger issue at play here and it is an issue that is best illustrated using Flagler themself.
In the MSNBC.com feature on the issue, it is said...
Flagler says Wal-Mart has no legal power over the videos because the two sides did not sign a contract when founder Mike Flagler was hired in the 1970s to produce Wal-Mart meetings and management conferences.
Co-owner Mary Lyn Villaneuva said the business continued producing and filming such events as shareholder meetings and an annual store manager conference until it was suddenly dropped by Wal-Mart in 2006.
Wal-Mart was about 95 percent of Flagler’s business, Villaneuva said. The loss meant the company nearly collapsed. So it looked to its assets and realized that it could charge for access to its video library.
“We would like to go back to being a production company, but right now we’re getting by as an archive,” Villaneuva said.
Flagler charges $250 an hour for video research and additional fees for a DVD copy of film clips.
So, they actually WANT and THINK that people should and could take them serious after this? Wow, that's a stretch!
I wouldn't trust them and would question their business sense pure and simple. As to integrity? I think they have none. Your opinion may differ.
To me, this is not an issue of a company having high moral standards and releasing the tapes on ethical grounds -- that, I could at least understand.
Instead...
They are releasing them (by their own admission) purely for monetary gain. And I, for one, believe that it was clearly known and understood by both parties that these tapes were not being recorded for general issue or distribution. If Flagler had ever failed to understand that point and had brought it up to Wal-Mart management once in the three decades they had the account, they'd have lost the job on the spot!
As a businessperson myself, I HIGHLY doubt that they would have had the job handed to them if the understanding were not there that these were private recordings. But that is going to be decided in the courts, I have little doubt.
And while I do not like Wal-Mart and have only to look at the adverse affect that they have had here on our own Paso Robles, California economy and downtown, I realize that even companies have to have rights. (Even if some people do not believe that they deserve them.)
By doing as they have done, Flagler has largely destroyed their chance of building a business. They were the ones who built a business with only one client. Sheesh. That is Business 101, boys and girls. Lose your one client and you are out of business.
Backstab that one client publicly -- especially when that client happens to be one of the richest companies in the world -- and your chances of getting clients to trust that you won't do it to them, are zip, nil, nada, nine, nope and none.
BUT THE BIGGEST BACKLASH here is going to be seen in the days ahead as companies who have used production companies quit using them out of fear of this kind of thing happening to them.
Cheer for your own business's demise, boys and girls, but I won't be rallying behind Flagler or their, in my opinion, continuation of their lack of ethics.
They put themselves into this position for three decades. They were willing participants in any moral breach and excesses that some of you might argue as being Wal-Mart practices and deficiencies.
These are no saints and they are not heroes. They are the people, in my opinion, who with this one move have done more to add to the demise of an already rough and ailing corporate video marketplace.
Watch the greeting you get the next time you have to do a corporate cold call.
Re: Flagler must be smoking crack... by Mark Suszko on Apr 10, 2008 at 5:19:47 pm
Ron I think you're right that it's a black eye for the industry as a whole. But I think we'll survive it. Most people will get caught up in the "walmartness" of it and not make the broader connections you did, IMO.
Frankly, some good may come out of this after all, if it leads to clearer contractual obligations for all parties. I imagine there are a lot of conference calls going on in corporate legal offices today across the country. Expect new contract language for your next deal that's more specific as to who owns what, and I think life will otherwise go on.
Re: Flagler must be smoking crack... by Ron Lindeboom on Apr 10, 2008 at 5:30:32 pm
[Mark Suszko]"Most people will get caught up in the "walmartness" of it and not make the broader connections you did, IMO."
Most people aren't running companies. It is the ones that do that I fear will have the longest memories and will make the broader associations in this case.
But yes, life will go on; even if people's eroding sense of ethics causes yet another layer of contractual obligation to be spelled out because many seem to no longer have any real inner-compass -- and live lives where their word is meaningless and without any moral backbone.
Not justifying Wal-Mart by any stretch, just saying that I have little doubt that Flagler knew full well that these tapes were not being paid for so that they could put them up for sale.
Re: Flagler must be smoking crack... by walter biscardi on Apr 10, 2008 at 5:45:34 pm
[Mark Suszko]"Expect new contract language for your next deal that's more specific as to who owns what, and I think life will otherwise go on."
Funny how we've had quite a few threads lately about "who owns the material that was shot." I guess we'll finally know.
And I have to agree with the great boomer on this one. Wal-Mart is very low on my list of respected companies, but Flagler has definitely stooped to an all time low. Your one and only company dumps you so you cry like a baby and decided to sell off a large company's video library.
I definitely would NEVER hire this company to produce anything. Zero ethics. I've lost more companies over the years than I have on our roster at any one time. I actually get nervous if any one company is a significant part of the business so we don't rely too much on any one thing.
Flagler's poor business model is a great example for anyone looking to start their own business. Nothing and no client is forever.
Walter Biscardi, Jr.
Biscardi Creative Media HD and SD Production for Broadcast and Independent Productions.
I'll agree with that one. by Steve Wargo on Apr 12, 2008 at 4:11:08 am
After this goes through the court system, I guess we'll find out who owns the rights to the footage. I just saw a huge court case in Arizona this past year that determined that the shooter MAY own the footage but the shooter does not have a right to do a damn thing with it. The client, on the other hand, has the right to use the footage for any purpose that they choose. And this came from the highest court in the state.
I wonder how much cash Flagler has in his war chest. He should have taken the half mill and got into another business. His only hope is that WalMart decides to throw cash at it so it goes away.
Steve Wargo
Tempe, Arizona
It's a dry heat!
Sony HDCAM F-900 & HDW-2000/1 deck
5 Final Cut (not quite PRO) systems
Sony HVR-M25 HDV deck
2-Sony EX-1 HD .
Re: Flagler must be smoking crack, imnsho... by Nick Griffin on Apr 10, 2008 at 5:43:03 pm
Flagler's critical need for good legal counsel was noted earlier. My bet is they are completely lacking this important element of a viable business and that they are going to lose this battle -- big time. Once WalMart's atty's start showering Flagler with motions, restraining orders and such like they'll be gone in a matter of weeks. And deservedly so. What a bone-headed move against one of the world's largest corporations. Let's just hope that someday we can read exactly what WalMart did to make Flagler feel so aggrieved.
Re: Flagler must be smoking crack, imnsho... by Dan Asselin on Apr 12, 2008 at 12:23:08 am
Ron is something wrong. Last week I went to the article on "Windows on a mac" and you were tearing a strip off of someone, implying they were an idiot and telling them to "remind me to never listen to snything you have to say again". This week I come to this forum and you're doing the same thing. Gee, I'd almost think you're missing your yearly trip to Vegas (NAB). You know there are other ways to have a vacation. In the immortal words of my teenage son...chill man;.)
Re: Flagler must be smoking crack, imnsho... by Ron Lindeboom on Apr 12, 2008 at 2:31:52 pm
Wow, we get 750,000 visitors a month now and have over 107,000 fully registered members that post so it is a L-O-N-G stretch for you to imagine that in a month we might actually get TWO whole occasions to raise the intensity above a whisper -- or give out a reaction aside from a pat on the back???
Lastly, Scott Lissard admitted that his remarks on the Windows On Mac article were "harsh." They were. He also jumped to conclusions and his remarks were ill-informed at best. If you liked him and approved of his comments, then I will say that it may be a case wherein birds of a feather...
There, that's three now. (Where's Bob Zelin when you really need him?)
Re: Kansas firm sells candid Wal-Mart videos by Bill Dewald on Apr 10, 2008 at 5:39:44 pm
[Ron Lindeboom]"I also believe that you are a blind self-centered opportunist, and someone that I hope finds no place in corporate video."
Wow - a personal attack from the man who owns the board... Party's getting ruff...
Here's my take - this is such an freak situation that I just don't see it translating into a black eye on the whole corporate video industry. I think the lesson that will carry on from this, if any, is that Wal-Mart's lawyers screwed up, and that ownership of the footage should be part of any negotiation.
Hopefully, some good comes out of the archive being made public. I like to think that if I was in the same situation, I'd throw it all up on google video for free.
Re: Kansas firm sells candid Wal-Mart videos by Ron Lindeboom on Apr 10, 2008 at 5:50:08 pm
I have always argued against personal and direct attacks here at the COW. That's the rule. But, as in life, there is another rule that says that for every general rule there is a great and glaring exception to that rule. Shift happens.
When I see someone blatantly state that betraying a trust is a good thing to do, I will always challenge that as I think it is a ridiculous posture to take. It will always destroy your credibility in the end and when you do it publicly to a company the size and power of Wal-Mart -- and then encourage others to do it -- you are giving our industry the kind of black-eye that will have far reaching repercussions.
Me, I think that is not only bad advice but idiotic advice and I don't mind saying so.
If you disagree, please don't ever see me about work of any kind.
Re: Kansas firm sells candid Wal-Mart videos by Bill Dewald on Apr 10, 2008 at 6:06:07 pm
[Ron Lindeboom]"Me, I think that is not only bad advice but idiotic advice and I don't mind saying so."
Oh, I'll agree with your assesment, Ron,(honesty being paramount) - it's a no-brainer, really...
I think that people will see this as a freak story about some guy cheating to get rich, rather than indicative of how the corporate video industry works...
Re: Kansas firm sells candid Wal-Mart videos by Ron Lindeboom on Apr 10, 2008 at 6:26:53 pm
[Jim Hyde]"I really don't think he cares about his credibility at this point and nor should he."
Nor should he???
Wow. I am speechless at these words -- almost. ;o)
In the end, all you are is your word and your reputation. It will follow or precede you everywhere and what you make of yourself, or don't, is based on that. It is called "character" and is far more valuable a commodity in business than your talent. I have seen plenty of talented losers who can't scratch two nickels/schillings together because their words and trustworthiness are valueless.
Talent alone won't make you a success in business.
Re: Kansas firm sells candid Wal-Mart videos by Jim Hyde on Apr 10, 2008 at 6:40:23 pm
Yes but when you have a ticket to financial freedom like this guy (arguably, since he has not taken up wal-marts buyout offer) who cares about business or what anyone thinks of you. Being in his position it seems like a good time to retire.
Re: Kansas firm sells candid Wal-Mart videos by Ron Lindeboom on Apr 10, 2008 at 7:03:54 pm
You can't be more than about 18. Early twenties at the oldest. Right?
I say this because only a kid would think that this guy has any power whatsoever in this situation. What he really has is a guarantee of being buried under tons of legal depositions and machinations which he will have to respond to and answer one by one. It will take no effort at all to bury both him and any lawyer who takes this case on behalf of Flagler.
The case can be made as to the fact that in 30 years, Flagler never violated the trust of the client's right to ownership of their own recordings. In many courts of law, there is both "Color of Law" and "Implied Contracts" that can and do both influence law and determine legal outcomes. I wouldn't want to be holding the tiger by the tail that he has just unleashed.
There is also an argument that could easily be made for proving trade custom in this case. Then there are other tacts that could be used with the courts to tie this guy up in chains and handcuffs and keep him so busy that his eyes will damned near burst under the pressure and onslaught of it all. And justifiably so. Couldn't happen to a more deserving soul in my opinion.
I am willing to state unequivocally that the one thing this guy may have thought he'd get out of it was retirement but that what he's actually going to get out of it is absolute and total ruination on many levels. This guy will find out this this is no cakewalk on Easy Street and that this road to retirement is fraught with one landmine after another. I will be surprised as hell if he "keeps either of his feet" in it all.
Lastly, he won't be invited to join the host team of this forum -- and I know that will break his heart -- but perhaps you can open a site and build a forum wherein both you and he can offer advice to the unsuspecting and unwary.
Re: Kansas firm sells candid Wal-Mart videos by grinner hester on Apr 10, 2008 at 6:40:26 pm
I find it interesting how many true creeps are truely stupid.
Go toe to tow with a power house? It's one thing to ensure no future business with an ex-client but this wreaks of angry ex-wife and a boat load of debt a year from now.
Never forget the little guys who help along you the way. That old adage is likely ringing in the ears of Wal-Mart execs this morning following Gary McWilliams’ story about how a tiny video-production company is giving the world’s biggest retailer a massive headache.
It’s the story of Flagler Productions Inc., a small firm who for 30 years was employed as to capture footage of its top execs, sometimes in unguarded moments. Its relationship was sealed with a handshake, not a long-winded contract. Two years ago, Wal-Mart dumped Flagler and nearly caused the shop to fold because it accounted for such a large portion of its business.
Now Flagler is resurrecting itself – by opening its trove of some 15,000 Wal-Mart tapes to the outside world, with an eye toward selling clips. And the material is proving irresistible to everyone from plaintiffs lawyers (and there is no shortage of those where Wal-Mart is concerned), to documentary filmmakers and union organizers. Wal-Mart is upset and says it never intended for Flagler to “tape internal meetings with this aftermarket in mind.” The company says it’s reviewing its legal options.
This isn’t the first time Wal-Mart has heard loud squeaks from a small cog in its wheel. Last year, it became embroiled in a messy fight with a security engineer it fired. And this story tells the tale of how a 20-year apparel supplier to Wal-Mart was singed over 4,000 pairs of cargo pants, fought back, and won.
The biggest players in the world can’t function without smaller ones to keep them supplied, technologically-sound, and otherwise ticking. To stay afloat, Flagler offered to sell Wal-Mart the whole video archive for several million dollars. Wal-Mart, whose revenue is now over $375 billion, countered with an offer of $500,000.
And the little guy hasn’t forgotten.
Readers, do you think Flagler is unfairly exploiting Wal-Mart’s material? Or do you think that Wal-Mart made a mistake in how it handled its relationship with Flagler?"
Re: Kansas firm sells candid Wal-Mart videos by robert reed on Apr 10, 2008 at 9:22:45 pm
This company reminds me of someone wanting to rob a bank. Even if they did not have a written contract, they knew that Wal-Mart had not hired them to tape this for the world.
The fact that Sam Walton hired them on a handshake long ago speaks better of Sam Walton than it does of this company.
I don't agree with Ron that all corporate video will go in-house or to agencies, but I do agree that it will make many corporations more cautious about video in the future.
Re: Kansas firm sells candid Wal-Mart videos by Don Greening on Apr 10, 2008 at 9:23:57 pm
I've found the comments posted by readers of the Wall Street article to be much more interesting than the article itself. One of the comments (there are many and varied) is from a "previous" Flagler employee.
Re: Kansas firm sells candid Wal-Mart videos by Mark Suszko on Apr 10, 2008 at 11:06:38 pm
Walmart's likeliest tactic will be to say that while Flagler owns the tapes, he has no signed releases for anybody IN them. That means he can't clear the footage for use in documentaries or etc. which reduces the potential for use of the footage anywhere but in academic studies and of course discovery phase of civil suits. With that rulingf they can get the YouTube showings removed as a DMCA violation and prevent junior Michael Moore's from doing too much damage. Nobody still working or wanting to work for Walmart will sign a release to Flagler. And you can't get a release from a dead man or his kin if they don't want you to have it. I suppose a film maker could watch the tapes and re-create footage based on transcripts, but I'm still not sure he could use the actual words of the walmartians without a clearance. That's a question for a real lawyer.
I doubt a judge would allow a presumption that since the people taped all worked for Walmart and gave consent to Walmart, that that consent automatically transfers to Flagler and his assigns and et. al. because I dont think the case law has too many examples of that as a precedent, rather more the opposite, I imagine. (and here is where I should stop pretending to be a lawyer, regardless of my hotel choice)
So maybe not quite the bonanza they thought at first. Still, do you think fifty grand is a fair offer on thirty year's worth of stock footage that chronicles from the inside, the evolution and true workings of the biggest company ever?
I still think Walmart should be sacking a brace of their lawyers for getting them into this mess in the first place, plus the manager who wouldn't approve whatever number Flagler counter-offered with. Only fools argue inside a burning building.
Re: Kansas firm sells candid Wal-Mart videos by Ron Lindeboom on Apr 10, 2008 at 11:25:36 pm
[Mark Suszko]"Still, do you think fifty grand is a fair offer on thirty year's worth of stock footage that chronicles from the inside, the evolution and true workings of the biggest company ever?"
They offered him a half-million dollars but he wanted millions.
Re: Kansas firm sells candid Wal-Mart videos by Tim Kolb on Apr 10, 2008 at 11:59:24 pm
I'd have to say this would qualify as a breach of normal "best practices" for business relationships even though I am not a fan of Wal Mart in any way...
If they issued an invoice and got paid, it does imply some sort of work product is purchased, but of course if they can make the old "photographer owns the negatives and base rights" deal stick if there is no agreement about what exactly constitutes the deliverable that was paid for...they might survive legally. However, I suspect that the opinion stated here that they may survive the battle only to lose the war is correct.
Frankly, I suspect that Flagler would have done better financially if...
(after some serious time with some serious legal experts who could confirm ownership of the footage, or at least confirm it was completely in question...)
...they'd edited a little "greatest hits" video out of the archive and gone in and done a little sales presentation...if money was what they wanted, keeping the video from seeing the light of day would have been far more valuable to Wal Mart than mopping up after the dirty laundry is opened to the public.
It's a tough deal for a production company that has clearly had all it's eggs in one basket for a loooong time, which is a self-created peril anyway, made worse by a colossally petty and foolishly unprofessional stunt when the ride ended...
Re: Kansas firm sells candid Wal-Mart videos by Don Greening on Apr 11, 2008 at 12:56:36 am
[Tim Kolb]"It's a tough deal for a production company that has clearly had all it's eggs in one basket for a loooong time, which is a self-created peril anyway, made worse by a colossally petty and foolishly unprofessional stunt when the ride ended..."
What I found quite interesting is that apparently (from a former Flagler employee posting on the Wall St. web site) WM basically demanded that they be the ONLY client of Flagler. Wonder how often THAT happens? I mean, in the video biz.
Re: Kansas firm sells candid Wal-Mart videos by Tim Kolb on Apr 11, 2008 at 1:52:50 am
...i[Don Greening]"WM basically demanded that they be the ONLY client of Flagler. Wonder how often THAT happens?"
It happens quite often in the video biz, whether it's stated as such or not...have you ever had a client that WANTED to hear that you're unable to jump at their every whim because you have other clients...?
...and I think by know it's common knowledge that it happens to EVERY Wal Mart vendor.
I have no doubt that Wal Mart was not a nurturing or altruistic client, but we're still off the map on what this production company did in my opinion...
Re: Kansas firm sells candid Wal-Mart videos by Gav Bott on Apr 11, 2008 at 1:41:52 am
Admittedly in the UK and in a very much smaller way I once asked a media lawyer a question that relates to this – mainly because I was owed a bit of money.
The “who owns” question when there is no contract in place.
The answer was pretty much immediate and definitive:- “Can you honestly stand up in court and say that you were employed by the client company for 4 years on the basis that you would hold all the rights?”
Basically, with no contract in place to say otherwise is falls to an implied “reasonable use” in the handshake agreement over 30 years. As has been pointed out several times already WM would never have employed this company had they ever thought that the footage belonged to anyone but themselves – no company would.
Maybe the US has different rules, but the lawyer and the situation we were discussing covered a lot of countries.
In my opinion Flagler is in a no win financial situation on this one. If they just want to get a few shots in at Wallmart they might score with some leaked footage to lawyers and people that are bringing cases, but this is likely to cost Flagler a lot more than it could ever gain them in money terms.
Flagler are unlikely to be able to position themselves as the White Knight whistle blower, for all the reasons already pointed out. They will look vindictive at best – even if their footage helps a few media friendly cases.
For Flagler it ends the company’s reputation, ruins them further financially in legal evil costs – and they probably don’t even get the satisfaction of slaking their thirst for revenge by scoring any really effective points against the Wallmart.
As usual, only the lawyers will win all round.
The Brit in Brisbane
The Pomme in Production - Brisbane Australia.
"The production company's founder and former owner, Mike
Flagler, says he was hired on a handshake in the 1970s to help produce the events Wal-Mart holds each year for managers and shareholders, including entertainment portions of its annual meeting and important sales meetings. He filmed them as well.
He says he rebuffed Wal-Mart's suggestions that he reuse the tapes to save money. Instead, he held onto recordings of commercials, executive speeches and manager hijinks.
Corporate records typically are closely controlled through legal contracts that restrict access and use. Mr. Flagler says he never signed a contract with Wal-Mart for the production or video work. Flagler Productions says that that arrangement left ownership and control of the films with it."
and
"The video library might have remained under wraps if a new Wal-Mart executive hadn't decided to hire another company to stage a musical production for its 2006 stockholders' meeting. The decision sharply curbed Flagler's role. Wal-Mart dumped Flagler altogether as a producer in late 2006, nine days after Mr. Flagler sold the company for an undisclosed sum to two employees, Mary Lyn Villanueva and Gregory A. Pierce.
The current owners say Wal-Mart accounted for more than 90% of Flagler's revenue. The company's bank called in a loan, and the pair dismissed their 16-person work force, Ms. Villanueva says.
Flagler offered to sell the whole video archive to Wal-Mart for several million dollars, Ms. Villanueva says, although she won't disclose the exact price. Wal-Mart countered with an offer of $500,000, arguing the footage wouldn't be of interest elsewhere, the two owners say.
They sold their 20,000-square-foot production facility and moved into an 800-square-foot rented office. They now hope to sustain the company by selling access to the Wal-Mart videos. They charge $250 an hour for video research, and additional fees for a DVD copy of film clips."
Re: Kansas firm sells candid Wal-Mart videos by Steve Wargo on Apr 12, 2008 at 4:37:47 am
[Randy Wheeler]"Mary Lyn Villanueva and Gregory A. Pierce. "
Seems like Mary Lyn Villanueva and Gregory A. Pierce need to be suing Flagler. I imagine they bought the company based on the WalMart deal. Kind of like Flagler knew it was coming or did WM dismiss the company because Mr Flagler sold the company.
So, Flagler sells his company to two employees who see big $$ based on the previous 30 years and then he keeps the library. Thing thing smells worse by the minute.
Either way, Flagler is going lower and lower in my book and ten minutes ago, I didn't think that was possible.
Steve Wargo
Tempe, Arizona
It's a dry heat!
Sony HDCAM F-900 & HDW-2000/1 deck
5 Final Cut (not quite PRO) systems
Sony HVR-M25 HDV deck
2-Sony EX-1 HD .
Re: Kansas firm sells candid Wal-Mart videos by George Socka on Apr 11, 2008 at 2:18:51 am
Royal butlers and Britney Spears' babysitters have made millions from material like this. If nothing else, Michael Moore and Julia Roberts producers will find fair use rights of parody. Will Flagler's people ( apparently not Flagler himself AFAIK) win big time? No. Will WalMart lose a bit, most likely. Get those tape duplicators busy.
