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What would you do?

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Greg Ball
What would you do?
on Mar 19, 2018 at 12:19:03 pm

Happy Monday everyone. So here's a different situation.

I know you've all heard about the tragic bridge collapse in Miami this past week. We were hired by one of the construction partners to shoot and edit a promo video featuring the bridge being moved into place.

We shot the video which looking at it now is pretty scary, considering we walked under the bridge several times. I was in the process of organizing and labeling the footage to begin the edit. The the bridge collapsed killing 6 people.

I was paid a deposit for the entire project, but the edit portion was going to be a more. Obviously there will be no edit, as it would sort of be like editing a promo video for the Titanic. So here's my question. Would you seek the rest of the payment since this was a package deal? Or would you just let it go. I feel morally I should let it go, but business wise I'm wondering what others think.

Thanks.

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Todd Terry
Re: What would you do?
on Mar 19, 2018 at 2:29:52 pm

I'd just let it go... for a couple of reasons...

1. You didn't have to complete the job, so you didn't have to do the work anyway.

2. I think this company is going to be dealing with a lot of problems in the upcoming days/weeks/months... and I kinda doubt your invoice will be getting front-burner attention... if they even end up having any money to pay it. Or if there is even still a company.

3. It just seems vaguely creepy.

I would, though, make sure to hang on to all of the footage and keep it handy. You know, for the subpoenas. :)

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Mark Suszko
Re: What would you do?
on Mar 19, 2018 at 2:33:10 pm

This project is likely a write-off. And one that going forward, you probably don't want to be associated with anyway.
Do make sure you have secure storage for all the footage, as it is likely to get subpoenaed at some point.


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Greg Ball
Re: What would you do?
on Mar 19, 2018 at 3:16:08 pm

Thanks Terry and Mark. I agree. I just wanted to make sure there was not something missing.

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Mark Suszko
Re: What would you do?
on Mar 19, 2018 at 3:48:41 pm

Also, the tragic event points up the importance of getting a deposit up front.

You never know when or if something is going to happen that scuttles a project, so staging milestones for progress payments as you go along is a kind of "insurance", that (hopefully) covers the bulk of your outstanding production costs, at least up to where the project is ended.

It doesn't need to be a disaster that interrupts a project; it could as easily come down to a sudden change of mind by the client, or a new development of some kind that renders the project irrelevant. That's why you cover yourself so you're not left holding the bag at any point.


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Greg Ball
Re: What would you do?
on Mar 19, 2018 at 4:02:39 pm

Thanks Mark. I always take a deposit upfront that covers completely.

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Bob Zelin
Re: What would you do?
on Mar 19, 2018 at 4:38:44 pm

well this is disgusting, and I should be ashamed of myself (but since you are in Florida, and are probably familiar with ambulance chasers like Morgan & Morgan) - I bet the attorneys that will sue the construction company would be thrilled to purchase your footage.

OK - I am going to hell for even suggesting this.

Bob Zelin

Bob Zelin
Rescue 1, Inc.
bobzelin@icloud.com


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Mark Suszko
Re: What would you do?
on Mar 19, 2018 at 4:56:28 pm
Last Edited By Mark Suszko on Mar 19, 2018 at 5:00:20 pm

I'm not sure he can make any profit supplying it to the Court, Bob, except for incidental costs for, say, the drives to copy it off on, and his labor for that.

If it was a work for hire situation, the construction company still has "dibs" on the material, and thus their lawyers do as well. They'll have to provide copies to the prosecution during the discovery phase of the trial, unless the government directly subpoenas the materials themselves. NTSB, DOT, FBI and Florida and federal Attorneys General might do that.

If it's not a work for hire, he owns that raw material, but it's a catch-22 that he can't re-purpose it without the former client's okay. He can own it, but he can't distribute, as I understand it. But even if he was able, I'm guessing morally he'd be opposed to making a profit selling the footage to people sensationalizing the tragedy.

If it's not a work for hire situation, he may be in the same kind of position as Flagler in Walmart v. Flagler.
Flagler was the "in-house" video production arm for Walmart Corporate, on a retainer, and had a lot of candid, embarrassing material gleaned over years of working with Walmart on various projects. Walmart decided to screw Flagler and change to a cheaper vendor - which is standard Walmart business policy.

Walmart's lawyers were sloppy and a court ruled Flagler wasn't contractually bound to turn over all that material when Walmart ended the relationship. They'd bullied Flagler and offered Flagler a pittance to own and destroy the library. Had they paid real money, they'd have got all of the compromising material back. As it was, Flagler was able to prove he had rights to his materials, and he monetized them by allowing lawyers for various organizations to access the footage library for "legal research". A number of follow-on cases for damages against Walmart ensued.

The moral of the story, I guess, Is: Don't be a %6$& to your subcontractors.


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Greg Ball
Re: Follow-up What would you do?
on Mar 21, 2018 at 3:34:21 pm

Hi guys. So the client just contacted me asking for the raw footage. The way I see it is that I own the footage. There's 262gb of footage. I worked as an independent contractor.

So would you charge them for the footage?

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Mark Suszko
Re: Follow-up What would you do?
on Mar 21, 2018 at 3:41:03 pm

What does the contract say?

Personally, I'd give a clone to them, but only charge them for the portable drive and labor time to make the transfer. Or send it to cloud storage with password protection and give them the password.The lawyers are going to make you give it up at some point anyhow.


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Greg Ball
Re: Follow-up What would you do?
on Mar 21, 2018 at 3:52:26 pm

We don't make reference to ownership of the footage in our contract we say:

Ball Media Innovations, Inc. is an independent contractor and not an employee of Client, with the sole authority to control and direct the performance of the details of the work, Client being interested only in the results obtained.

Since I refer to them as a client and us as an independent contractor, I believe under the law that I own the footage.

It would take forever to upload 262 GB of footage.

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Todd Terry
Re: Follow-up What would you do?
on Mar 21, 2018 at 4:10:28 pm
Last Edited By Todd Terry on Mar 21, 2018 at 4:13:06 pm

I'd tell them to either 1) bring you a drive, or 2) that you'd be happy to sell them one, and then charge them whatever your hourly suite rate is to transfer the footage.

And then I'd wash my hands of it. This gig is tainted.

I'm not sure what attorneys' policies are about paying for footage when they call (and they will), but if they don't pay well what it is worth to you, you can always default to "all footage has been turned over to the client."

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Roger Van Duyn
Re: Follow-up What would you do?
on Mar 21, 2018 at 4:32:26 pm

Greg,

This is a very high profile case and I'd be mighty uneasy if I were in your shoes. I'd definitely consult my own attorney how to proceed. Right now it's a civil matter, but the possibility might exist for it to become a criminal matter. As Bob Z. mentioned, I saw John Morgan's son on TV saying their firm is already involved. I'm sure you've already made backups. I'd probably make some more. Wouldn't want anything to happen to the footage.

Roger


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Bob Cole
Re: Follow-up What would you do?
on Mar 24, 2018 at 1:56:10 am

And remember... by mentioning this on the COW, you've already told the world about the footage.

"Talk to an attorney." Good advice, but don't waste time or money talking to anyone but a specialist, imho.

Bob C


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Al Davis
Re: Follow-up What would you do?
on Jun 7, 2018 at 3:23:08 pm

If it is not compromising to say; how did this turn out?

Al Davis
Visual Velocity
Brookline, MA


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