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Shoot, Edit, Uh oh...

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Rich Rubasch
Shoot, Edit, Uh oh...
on Aug 10, 2011 at 12:52:14 am

Ok, a producer approaches a camera guy and asks if he will shoot some segments for a 1/2 hour show. Camera guy will get paid once the sponsors kick in some money. No contract is signed.

Post house agrees to cut the show for a very small amount because it is for a good cause.

Producer apparently gets some funding...

Camera guy asks what he can expect for what is now 12 full days of shooting and about 20 hours of footage.

Post house has 80% of the pilot edited.

Camera guy approaches post house and says that if he does not get paid by the producer, even a small amount for his efforts, he will not give permission to the producer to use the footage he shot (on his own time and own dime) and therefore the show cannot be delivered, since the camera man owns the rights to the footage.

Is the post house forced to stop editing in this scenario? Is the producer essentially caught between a rock and a hard place?

No contracts were signed or agreed upon by anyone....all good faith.

Thoughts?

Rich Rubasch
Tilt Media Inc.
Video Production, Post, Studio Sound Stage
Founder/President/Editor/Designer/Animator
http://www.tiltmedia.com


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Mark Suszko
Re: Shoot, Edit, Uh oh...
on Aug 10, 2011 at 1:38:21 am

Well, the post house is kinda wasting their time if the point is to make an airable product.

But their deal is with the producer to edit footage and give him the edited work, IMO it is not technically their responsibility if they didn't know the footage was not legal; it is I feel up to the producer to get the legal legwork done to make it airable. The post house is under no direct obligation to the cameraman to withhold delivering the master edit to the Producer. Their deal is with the Producer. They would be in better shape if each job contract has a "hold harmless: clause to protect them in these cases, but post houses I think generally have to work on the assumption they are working with someone in good faith and if they say the footage is cleared, that should be good enough to allow editing. If I was a post house, though, that hold-harmless clause would be on every contract.

He's going to have to square things with the cameraman, or go ahead and wait for the cameraman to take the producer and the charity to court. That is bad PR for the client charity. Very bad. Anything that creates bad publicity for the charity client means the producer is good as dead with them, and by extension anybody they deal with/talk to.

Production communities are surprisingly close-knit and your rep counts for so very much more than you'd think. Ruin it, and the town becomes very hard to find good work in, and to get things done timely in. Because everybody will find an excuse not to be able to work with you or help you out, except for cash in hand up front fully pre-paid.

Which makes the producing job very hard. So it is really in the producer's best interest to settle up with the cameraman ASAP, eat his pride and his profit and get the rights assigned to him free and clear. At this point in the project that is even more important than ever seeing a dime of profit from the project. It endangers all his future work and living to not fix this issue. I would rather lose my profit than damage my working reputation among my peers, suppliers, subs, and clients. When I structure a private deal, the down payment is all devoted to the vendors, suppliers, subs, crew costs. My profit comes at the end. This is an extension of ancient military doctrine for Generals: the horses get fed and watered first, then the enlisted, then the officers. Nothing else is acceptable, if you want to give orders that are actually followed, and battles won.

The cameraman owns the footage, absent a written agreement that says otherwise. While he can't himself put it to much use without permission from the clients and producer, all he needs to do is sit on the tapes and run out the clock. If they are really worth anything, and there's no time or ability to re-shoot, owning the tapes means he holds all the important cards.


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Rich Rubasch
Re: Shoot, Edit, Uh oh...
on Aug 10, 2011 at 1:56:21 am

Excellent reply. One more thing. The footage is now converted from AVCHD to ProRes at the editing house's hard drives. So technically there is more than one copy of the footage.

What if the producer severs ties with the cameraman and asks the post house to put all the ProRes footage on his drive?

Rich Rubasch
Tilt Media Inc.
Video Production, Post, Studio Sound Stage
Founder/President/Editor/Designer/Animator
http://www.tiltmedia.com


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Mark Suszko
Re: Shoot, Edit, Uh oh...
on Aug 10, 2011 at 3:01:07 am

The codec has no affect on the origin of the footage. Make a million copies of his footage, and edit it all you like; if he doesn't clear it, you still can't legally use it on-air, you won't be able to prove it's been cleared, and you just make his (cameraman's) eventual court case stronger, and eventual penalties and damages assessed, higher... Plus, you've soured your relationship with that post house pretty much forever, and with any post house that place's owner chats with on a regular basis.

Is it really that novel a concept in business these days that it pays to just Do The Right Thing from the start?


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Richard Cooper
Re: Shoot, Edit, Uh oh...
on Aug 10, 2011 at 7:32:42 am

Edited...... Sorry, mis-read the initial post.

Richard Cooper
FrostLine Productions, LLC
Anchorage, Alaska
http://www.frostlineproductions.com


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Scott Carnegie
Re: Shoot, Edit, Uh oh...
on Aug 10, 2011 at 5:13:49 pm

Ditto.

Plus if I was the post house and had the knowledge that a project I was working on for low/no payment had these potential legal problems I would stop wasting time on it until the producer cleared everything up.

http://www.MediaCircus.TV
Media Production Services
Winnipeg, Manitoba, Canada


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Bill Davis
Re: Shoot, Edit, Uh oh...
on Aug 10, 2011 at 7:44:23 pm

The camera guy has all the "moral leveragel" he can get people to react to - because he absolutely owns the rights to the footage.

The problem is that "moral leverage" is generally worth squat in business disputes.

The problem is that he has no functional pre-emptive way to prevent his footage from being used in any way shape or form. The footage cat is out of the bag. Once he turned it in to the client - all his leverage disapeared.

In order to prevail, the camera guy can only threaten, cajole, and use the 'court of public opinion" to prevail.

The other side needs a single lie - "he said we could use the footage" - and they're golden unless he can PROVE otherwise.

Sucks, but there is is.

"Before speaking out ask yourself whether your words are true, whether they are respectful and whether they are needed in our civil discussions."-Justice O'Conner


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Mark Suszko
Re: Shoot, Edit, Uh oh...
on Aug 10, 2011 at 9:44:40 pm

Bill, I'm going to disagree with you on a small point.

If the bad guy ges his hands on the footage without paying the cameraman, and he goes ahead and puts it on the air, the cameraman can sue and the key point of the trial will be who can prove on paper that the camerman gave permission. The burden of proof is mostly going to be on the producer at that point, and a claim by the producer of having verbal permission isn't worth the paper it isn't printed on.

Absent the existence of documentation that this was a work for hire, the standard in the case law until now has been that the cameraman owns the footage he creates by shooting, UNLESS there is another agreement. He may not have permission to *use* it for anything either, but he owns the product of his actual labor until he turns it over in exchange for payment, and he has the right to keep it in a box under his bed until he's paid or the Cubs win the Pennant, if he wants to.

No proof of payment means no contract, means cameraman retains ownership. Producer of course can gamble and go ahead without the permission, and hope that the cameraman won't sue or will get tired of the time and expense of pursuing the Producer. Is that a good strategy to stake your business on, as a Producer? How about your house and car and bank account?

No, I'm not a lawyer, I'm parroting the general consensus of this topic as it has been discussed a bajillion times in this forum.


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Bill Davis
Re: Shoot, Edit, Uh oh...
on Aug 11, 2011 at 7:01:23 am

Mark,

Look, I agree that the camera guy has absolute ownership rights. That's not in dispute.

What IS in dispute is whether he has any SENSIBLE path to recourse. And I'm sorry, but the legal system of 2011 in America, is NOT kind to small claims like this.

Sure he can sue. The American system of jurisprudence allows anyone to sue anyone else for darn near anything. But in what court, for how much, and at a cost of how much grief and hassle?

In small claims court he can likely even get a judgement. (Heck, sometimes the other party doesn't even show up!) Which yeilds a summary judgement and a lovely piece of paper from the court. The problem is that in practice, there's really no mechanism for FORCING someone to honor such a judgement even after it's issued on your claim. You can't attach wages or do anything other than spend even MORE money on further litigation trying to leverage the money out of the deadbeats.

If this is a big bill (above the small claims limits - then you're even MORE screwed, since you pretty much HAVE to invest in legal help in order to navigate that system. Which means you're likely throwing MORE money after the original bad money.

The real point of all this is that if you have even the slightest inkling of the tiniest possibility that someone isn't going to pay you for your tapes DON'T GIVE THEM UP UNTIL YOU'RE PAID. Period. Full Stop. End of sentence.

That practice is the single dependable piece of free leverage you will ever have in a pay dispute at this level - cuz once you surrender the goods - you might as well kiss your money goodbye IF that's what the other party intends.

It's a harsh lesson. But I bet virtually everybody here has had to learn it the hard way along their career path.


My 2 cents anyway.

Again, the guy who shot the stuff is absolutely in the right. But being right is NO guarantee that you'll get your money in the end.

Hopefully, this will be the exception and it's just a communications snarl. But in a bad economy like this - so many people are scraping by that not getting paid by a middleman is becoming more and more prevalent.

Forewarned is forearmed and all.

"Before speaking out ask yourself whether your words are true, whether they are respectful and whether they are needed in our civil discussions."-Justice O'Conner


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Mark Suszko
Re: Shoot, Edit, Uh oh...
on Aug 11, 2011 at 12:08:32 pm

I once had to sue a Producer in small claims court, as the shooter. I had proof he was secretly making extra dubs and not giving me my cut. He didn't show up in court, I won, and we were able to garnish his bank accounts for the money, with a court order to the sheriff's office that we took to his bank. We got almost all he owed us. It can work. Though I agree with you that the process may be more trouble than it is worth to some people.


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walter biscardi
Re: Shoot, Edit, Uh oh...
on Aug 11, 2011 at 2:06:10 pm

I would have to agree with most of what Mark has already elaborately posted.

If it was my Post House, I would stop all work immediately until the issue is resolved. And as Mark already pointed out, just because the footage was converted for editing doesn't affect the original ownership of the actual footage.

I believe the courts would side with the shooter, particularly for 12 days of unpaid work, that he / she owns the copyright to the material and without written consent, the Producer is unable to use the footage for any purposes.

Thus there is no reason to continue the edit until a resolution is made between the shooter and Producer.

Walter Biscardi, Jr.
Editor, Colorist, Director, Writer, Consultant, Author, Chef.
HD Post and Production
Biscardi Creative Media

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Patrick Ortman
Re: Shoot, Edit, Uh oh...
on Aug 11, 2011 at 7:27:29 pm

Also, and here's something that may not OFTEN happen in this industry, but it can- and does- in others that are related. Our contracts have a specific clause that states that the client says they own the rights to the footage we're using. Because, our lawyer told us, if we don't have this clause to protect us, and we work with illegal footage, we may get named in a lawsuit, too.

Personally, if I knew the producer was basically stealing footage, it's best to sever that relationship immediately.

----------------------------
PatrickOrtman, Inc.
Los Angeles Digital Agency and Video Production Company


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Bill Davis
Re: Shoot, Edit, Uh oh...
on Aug 12, 2011 at 12:06:43 am

That's very smart.

But the OP specified that there was no written agreement in this case.

All sorts of "breech of contract" possibilities come into play if you do have a contract.

Without one you largely have conjecture between two parties unless you opt for court and have witnesses.

"Before speaking out ask yourself whether your words are true, whether they are respectful and whether they are needed in our civil discussions."-Justice O'Conner


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Rich Rubasch
Power to the COW
on Aug 12, 2011 at 1:25:36 am

I printed some of the advice given here and I presented it to the producer after a pleasant positive conversation. Contracts are being drawn up, everyone will get paid and we'll get this sucker done.

Told the producer to use this experience as a learning moment and to not hang his head because things became a bit unraveled.

Negotiating with the right perspective and with a clear head can make the difference....add in a little advice from the COW and you have an actual SOLUTION!

Thanks all.

Rich Rubasch
Tilt Media Inc.
Video Production, Post, Studio Sound Stage
Founder/President/Editor/Designer/Animator
http://www.tiltmedia.com


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Mark Suszko
Re: Power to the COW
on Aug 12, 2011 at 1:44:27 am

And you never even had to mention the Ultimate Weapon: Bob! :-)


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Rich Rubasch
Re: Power to the COW
on Aug 12, 2011 at 4:51:56 pm

Bob would have been my trump card if it had gotten more out of hand!

Rich Rubasch
Tilt Media Inc.
Video Production, Post, Studio Sound Stage
Founder/President/Editor/Designer/Animator
http://www.tiltmedia.com


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John Cummings
Re: Power to the COW
on Aug 14, 2011 at 2:17:22 pm

Just curious Rich, what if the cameraman showed up in your lobby demanding the original media and insisting you delete any and all footage off your servers?

J.Cummings
Cameralogic Inc.
Chicago/Cleveland
HDX-900/HDW-730S/Nanoflash



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Daniel Pellegrino
Re: Shoot, Edit, Uh oh...
on Nov 20, 2012 at 8:00:41 pm

Hi Walter, Dan here.

I know you guys are debating endlessly over the ownership of the raw footage but as a producer for a Miro-budget film that I funded entirely myself, My DOP and obviously camera operator completely screwed me!

We were all friends on this short and for obvious and spiteful reasons he won't let me release the final edit of the film as he wants nothing to do with it. He obviously knows that the raw footage is his property and has threatened to sue me if he sees the film online or in any film festivals.

I understand that if I take his name off the credits it will soften the blow but if I do that have I no right what so ever to show the film I wrote, produced and directed? I was also the actor on it so it obviously has my image on it. Where do you think I stand on this? Obviously there was no contracts drawn up...

He was also my photographer for my head shots and is using my image along with many others to promote his services. Can I get him to take them down or does he own them also. I didn't sign anything with him?

I look forward to your reply

Dan


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Steve Wargo
Re: Shoot, Edit, Uh oh...
on Aug 15, 2011 at 2:44:55 am

I stopped the post production of a feature film in 2002, under the very same circumstances and it is still sitting "in the can" waiting for finish edit. I threatened the post house with " complicity" and halted work after a brief phone call to the attorney.

Steve Wargo
Tempe, Arizona
It's a dry heat!

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Mike Cohen
Re: Shoot, Edit, Uh oh...
on Aug 19, 2011 at 9:30:48 pm

Did the camera guy do the 12 days of work as a charitable contribution towards whatever cause this video is for? Is there a receipt for this contribution?

Nothing in writing = little chance at recourse.

This is Business and Marketing Forum 101 - get it in writing, or you're on your own once you realize you've been hosed.

Does the camera guy own the raw footage even if no money has changed hands? That's for the legal system to decide.

Mike Cohen


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