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collections: hardball or softball?

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avantiscollections: hardball or softball?
by on Nov 22, 2007 at 1:27:20 am

Hey guys ~

Two years ago, a client walked off with a video DVD containing my soundtrack and editorial work. It was one in a series of "test" mixes. Then they announced they were flat broke and suspending work for the time being. I said OK. They have disappeared, sort of.

They already paid me 30K out of a total owed of 34,500, so I'm not too hot under the collar, and have been willing to let this slide for 2 years.

I want to collect, but I know the filmmakers don't want to pay cash, and I don't want to press the point. The thing is, I did a score for them ten years ago, they own the rights, and I want to recapture the rights to the score. I have the masters here. The rights to those masters are valuable to me, and would assauge my hostility to a significant degree.

I guess what I'm asking is, should I go hardball or softball with these people? I could press for cash up front, then later offer to take the music as a concession in lieu of payment. or should I just lay it on the line and say, sign over the music rights, and I won't come after you?

I want to keep this on friendly terms but I'll scare em if I have to.

What do you think?

c-post




"Life is good, as long as it doesn't take up too much of my time."

-anonymous gamer


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Mark SuszkoRe: collections: hardball or softball?
by on Nov 22, 2007 at 8:21:00 pm

Getting back the rights to your music seems the more important and easier thing to do.

Trying to get more money out of them now could take a lot of time away from your work, fir just a few grand more... which is probably what they counted on. If it becomes a question of fighting over the unpaid balance and trying to collect afer small claims, or just having them sign over the rights, the latter seems easiest for everybody.

If you take back the rights, does that or will you preclude them still selling their old program, do you mean to make the rights nonexclusive? If you push hard on this, taking back the rights to your music means they'd have to re-edit the piece to be able to sell it any more. You may want that and like that, but if they realize that they'll probably resist you. If they see it as a free way to get out of making you any more payments, while still selling their product, they'd probably jump at the chance to sign, and put the financial problem behind them.

So how clever are they, and are they more greedy than clever?


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Raymond Motion PicturesRe: collections: hardball or softball?
by on Nov 24, 2007 at 5:45:37 am

[Mark Suszko] "So how clever are they, and are they more greedy than clever?"

Great music can't save a crappy script - were there zombies in it? Just guessing...


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Mark SuszkoRe: collections: hardball or softball?
by on Nov 24, 2007 at 5:50:23 am

The money's likely too impractical to recover. But the music can be re-sold and perhaps make back more than the outstanding amount. And if the other clients are stupid enough, once they lose the rights to the music, they can't use the program anymore as it is.


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Raymond Motion PicturesRe: collections: hardball or softball?
by on Nov 24, 2007 at 5:56:06 am

[Mark Suszko] "But the music can be re-sold and perhaps make back more than the outstanding amount."

You've hit the nail on the head, Mark! There it is - that puts the proof back on the offenders. They won't have a leg to stand on.


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David Roth WeissRe: collections: hardball or softball?
by on Nov 23, 2007 at 8:35:04 pm

[avantis] "They already paid me 30K out of a total owed of 34,500, so I'm not too hot under the collar, and have been willing to let this slide for 2 years."

This is purely a small claims matter. You would never find a lawyer to take the case on a contingency, and you would of course be foolish to spend any real money pursuing such a small amount. So, while your costs to bring this matter to trial would be trivial, I suspect that any judge hearing the case might not feel too terribly sorry for you, since collecting $30k on a $34.5k bill from a failed business is about as good as anyone could ever hope for in a settlement.
Plus, I suspect that your desire to tie-in the soundtrack rights from the previous job you did for them is somewhat of a stretch.

So, I'm not saying you shouldn't go for it, and I'm not saying you'd definitely lose, however, I would advise you to consider yourself lucky that you weren't left holding the bag for the entire final 1/3 payment, which is usually what happens in similar circumstances. If I were you, I'd just move on. You're a creative guy, not a lawyer, so look forward rather than backward and go get creative.

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.





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ArniepixRe: collections: hardball or softball?
by on Nov 28, 2007 at 4:12:10 am

[David Roth Weiss] "This is purely a small claims matter. You would never find a lawyer to take the case on a contingency, and you would of course be foolish to spend any real money pursuing such a small amount."

10 or 12 years ago,when I was a freelance newspaper photographer, I had a client that owed me for a few invoices- something like $500 or $600, if I recall. The publisher had been ducking my calls for 2 or 3 weeks, & I figured that if I took them to small claims, I'd never see a cent, but if I took them to federal court for copyright violation, it would cost them much more than that just to show up for the 1st hearing.

So I called & left voice mails for the publisher, his assistant & the corporate attorney telling them that I was revoking their license to the pictures they had run, and going to sue them for violating my copyright.

I was called back immediately and told that a check was being cut & would be waiting there as soon as I could come pick it up. And, by the way, we're paying you a little bit extra to make up for your trouble. I think it was something like an extra 20%.

Arnie

Now in post: Peristroika, a film by Slava Tsukerman

http://www.arniepix.com/blog


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avantisRe: collections: hardball or softball?
by on Dec 2, 2007 at 7:28:43 pm

Thanks for the feedback guys. Some super ideas here. I think sometimes all it takes is a certified letter to get em to crumble.

avantis

"Life is good, as long as it doesn't take up too much of my time."

-anonymous gamer


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MindYourVideoBusinessRe: collections: hardball or softball?
by on Nov 24, 2007 at 12:19:46 am

If the rights to your music is vital to your long-term success, do what you can to get them back. If not, odds are good you've already spent way more than $4500 in your time and energy trying to figure out what to do in this mess. Replay the history of this deal in your mind, make some corrections and do your best to avoid similar successes in the future. I too agree that moving forward is way better than getting stuck in the past. Good luck!

Kristopher G. Simmons

Video Business Coach

http://www.MindYourVideoBusiness.com

http://blog.mindyourvideobusiness.com


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RennieRe: collections: hardball or softball?
by on Nov 24, 2007 at 8:35:09 am

[avantis] "The thing is, I did a score for them ten years ago, they own the rights, and I want to recapture the rights to the score."

So I'm getting you did this work 10 years ago and they acquired the rights, done deal.

[avantis] "Two years ago, a client walked off with a video DVD containing my soundtrack and editorial work. It was one in a series of "test" mixes. Then they announced they were flat broke and suspending work for the time being. I said OK. They have disappeared, sort of.

They already paid me 30K out of a total owed of 34,500, so I'm not too hot under the collar, and have been willing to let this slide for 2 years. "


So 8 years after you do some more work which is never completed but you received 30K (87%) of the agreed total for the completed work.

I'm no lawyer buy I don't see how you can expect to go after rights for a previous project that was a done deal 10 years earlier and doesn't seem to be related to the project in dispute. I don't know if there was an escape clause in your contract that they could have used to bail with but it seemed you cleverly received most of the payment anyway and would have had to perform other work to receive the final amount which you were never required to do as it turned out.

These people seem to be on good terms with you so if they have any guilt feelings for canceling out on you for the final part of the 2nd project perhaps you could use that to your advantage to acquire joint rights to the music. They get to keep the rights for their original project as you had earlier arranged and you could re-market them as you wish.


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avantisRe: collections: hardball or softball?
by on Nov 24, 2007 at 6:25:55 pm

Thanks, guys, your advice is awesome. Yeah, of course my recaptured rights are non-exclusive. No way am I contemplating depriving them of their rights to use the music on that earlier 35 feature.

Oh and by the way, the outstanding $4700 is for work that was already done. It was a pay as you go situation, unlike most other jobs which are 50 percent up front and 50 on delivery. So I think I do have a right to be somewhat sore.

Here's how I think it might work, either

A) I confront them with the music rights as an escape for them and they capitulate immediately, which is happy for all concerned or...

B) I take them to small claims, the judge grants me the settlement, which in effect gives me the legal right to use my masters for anything I need.

Perhaps this is the essence of my question: What happens after I win in small claims? What legal document or authorization do I need to comfortably use my masters?


thanks

avantis



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David Roth WeissRe: collections: hardball or softball?
by on Nov 24, 2007 at 7:09:24 pm

[avantis] "B) I take them to small claims, the judge grants me the settlement, which in effect gives me the legal right to use my masters for anything I need."

Judges in small claims court don't have a clue about intellectual property rights, and in the fifteen minutes alloted to each case they could never begin to calculate any division of ownership rights. You are owed about 12 or 13% of what's due, that does not entitle you to 100% of the rights, unless of course you have a contract that states exactly that.

The job of small claims courts is to help settle disputes between two parties who cannot come to terms among themselves. They only want to know two things typically: 1) can you prove a "direct" loss, i.e - how much out of pocket are you and can you prove it?; and 2) have you made attempts to settle? Those are the two things you should focus on, otherwise you'll be wasting your time and the the court's time, and the judge will quickly let you know it.

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.





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RennieRe: collections: hardball or softball?
by on Nov 24, 2007 at 7:32:29 pm

Yes, I would explain to them that after completion of such a project you have to:
Pay your rent bill
Pay your hydro bill
Pay your advertising bills
Pay your equipment upgrade and maintenance bills
Pay your tax bill
The 15-20% that is left over (if any,) you get to keep so you can eat.
If there is any thing over and above that it is called profit (why we're in business for ourselves)
When you don't receive the final payment for a job all other creditors still get paid first so the one on the end which is you is who doesn't get paid so in essence you haven't been paid for all your labors and talents. (stress that this final amount is really what is left for you)

Then explain you really need to recover something from that work and in liu of money you would be willing to work out some form of trade for the rights to the music in the former deal. You could point out that they will still retain full rights to usage to that project anyway they see fit but this would give you an opportunity recover your losses and resolve the issue between you.


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Raymond Motion PicturesRe: collections: hardball or softball?
by on Nov 24, 2007 at 7:38:14 pm

[avantis] "Perhaps this is the essence of my question: What happens after I win in small claims? What legal document or authorization do I need to comfortably use my masters?"

You would have the judgment against them. If you make it clear to the judge that in lieu of payment you wish to have the rights to the music revert back to you - he may grant that in the judgment.


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Craig SeemanRe: collections: hardball or softball?
by on Nov 25, 2007 at 12:20:26 am

I usually put in my contracts that I retain ALL RIGHTS to all materials I generate until FINAL payment is made.

BTW, maybe it's me and my 25 years of experience working for 6 facilities that all went under . . . Final payment is ON deliver and not after. Either that final delivery is in person with tapes or media being xfered along with the payment in hand or the check arrives in my mailbox and the media goes out that day.

Sure there are exceptions but in your business model you have to examine what it does to your business if some small percentage don't make that payment. To me that's lost time and any efforts to collect is additional lost time.


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grinnerRe: collections: hardball or softball?
by on Nov 27, 2007 at 4:10:40 pm

hardball.
I am a very laid back dude. If ya can't get along with me, ya prolly don't get along with many. I'm pretty old school when it comes to money though. It in no way (to me) is mean to tell somone you'll be by in ten minutes to collect the full amount they owe ya. Wouldnt even be mean to charge em for gas to come get it. I have waitin in lobbies having to ask their clientele if they are there for money as well before. I make my living doing this stuff. Deadbeats would take food from my children if I let ethem and it's simply up to me not to let them.
Hardball means they wont cvome back. It also means they wouldnt have anyway. You have absolutly nothing to lose by being firm.



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