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A 'Sensitive' issue has arisen. Some advice appreciated

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Dylan Hargreaves
A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 12, 2011 at 10:38:19 am

We recently wrapped a documentary offering advice on the recovery process for a particular medical issue. The film was commissioned by a health authority here in the UK, and one section featured input from a charity connected with the health issue.

Now the charity has come to me asking if they can have, (not buy), significant chunks of the documentary, (including high end motion graphics) to be included in a DVD project they - or rather another production company - are producing.

If it were any other organisation, it would be a flat no. But I would like to handle it rather more sensitively in this case. Any advice?

D


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Craig Seeman
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 12, 2011 at 11:07:44 am

You have to look at your contract and see what's been agreed to around rights.
Who owns the doc?
What was your agreement regarding the licensed use with the health authority that commissioned?
Are they asking for completed sections or raw footage (I suspect the motion graphics are including in the final version)?

You're working in to a hornets' nest of legal problems if you don't have the above answers. It's impossible to even make a non legal guess of a suggestion.

If you're asking how to say no then the immediate answer might be is that legally you simply don't have the right to alter the license agreement with the agency that commissioned it.



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Dylan Hargreaves
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 12, 2011 at 11:19:44 am

Hi Craig,

My company has complete ownership of the doc, and indeed, we recently granted a licence for it to run on community television.

We have release forms from all the contributors, including the representative from the charity concerned. My question is really how to say no in a way that doesn't make me look like an a-hole. But I'm not in the business of helping other production companies to look good by donating my footage for free either, and if I'd been approached by them, it would be an easy call. But it was the charity, and no one likes saying no to charities...


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Craig Seeman
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 12, 2011 at 11:41:08 am

[Dylan Hargreaves] "My company has complete ownership of the doc, and indeed, we recently granted a licence for it to run on community television.
"


Is that license exclusive?
Is it in perpetuity or is it time limited?
Is it use limited (only in entirety and promotional or do they have rights to excerpt for other purposes?
Do they have the right to release it in other forms such as DVD, online, etc?

[Dylan Hargreaves] "My question is really how to say no in a way that doesn't make me look like an a-hole."

I think the polite and fair thing to do is explain it's already been licensed to the body that's commissioned it exclusively (assuming that's the case). It's not about being a good or generous person but even a doc for a cause (charity) is subject to legal use and license. You're legally bound not to grant others license.


[Dylan Hargreaves] "But I'm not in the business of helping other production companies to look good by donating my footage for free either, and if I'd been approached by them, it would be an easy call. But it was the charity, and no one likes saying no to charities..."

Can you clarify? Is the charity asking for sections to so they can recut... elsewhere? BTW this is why a license may include limits to the use. Is it that there's no exclusivity and you do have the right to grant others to re-use sections but you'd prefer not to for financial reasons?



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Dylan Hargreaves
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 12, 2011 at 11:55:13 am

[Craig Seeman] "Is that license exclusive?
Is it in perpetuity or is it time limited?
Is it use limited (only in entirety and promotional or do they have rights to excerpt for other purposes?
Do they have the right to release it in other forms such as DVD, online, etc?"


Essentially, we did the doc for them at a rate that was very beneficial to them on the understanding that we would retain complete rights and control over the finished film and its constituents.

The charity approached the health authority about usage in the first instance - who told them they were 'fine' with the footage being handed over even though it was not their call to make.

Unfortunately, this makes it hard for me to use the reason that exclusivity was granted to the health authority if they've turned round and said they're ok with it being used elsewhere.

[Craig Seeman] "Can you clarify? Is the charity asking for sections to so they can recut... elsewhere?"

That's exactly right. They have a DVD project, which in theory they could have used us for, but for whatever reason we weren't approached. So the issue is solely about turning down a polite request for a helping hand, when behind that helping hand is another production company being paid to use my work free of charge.

I'm sure there's a reasonable way to do this without coming across like a spoilt brat who won't let anyone else have the ball!


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Craig Seeman
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 12, 2011 at 12:27:35 pm

[Dylan Hargreaves] "Essentially, we did the doc for them at a rate that was very beneficial to them on the understanding that we would retain complete rights and control over the finished film and its constituents."

So would this mean that you have right to re-license before first airing? There's nothing like causing "upset" when they find that someone else is releasing sections before the first air. Of course if you've conferred no exclusivity to the agency you delivered to, it might be your right. It's hard to answer a generalization (that's why lawyers read contracts and know case law) but you seem to be saying you can do as you please.

[Dylan Hargreaves] "The charity approached the health authority about usage in the first instance - who told them they were 'fine' with the footage being handed over even though it was not their call to make."

So there is a limitation on use? That's why you really need to understand what you've granted as to the party (ies) who receive the program. You should politely say that it's not their call even if you say you're OK with it. What has been and has not been granted MUST BE CLEAR. That's what contracts are for.

[Dylan Hargreaves] "Unfortunately, this makes it hard for me to use the reason that exclusivity was granted to the health authority if they've turned round and said they're ok with it being used elsewhere."

Not hard at all. It's not their right to grant others license (as long as you were clear about that). That's why I mention right to use show and promotion of such as a typical example That limits their right to confer license to any other entity for any other purpose. They do not have the right to say "it's OK" assuming it's been made clear that's the case.

[Dylan Hargreaves] "That's exactly right. They have a DVD project, which in theory they could have used us for, but for whatever reason we weren't approached. So the issue is solely about turning down a polite request for a helping hand, when behind that helping hand is another production company being paid to use my work free of charge. "

That's what licensing is all about. You retain control. They must use you unless you grant otherwise. Tell them that you'd do post and what rate. Otherwise you can offer them license to allow them to re-use and charge for that license. That's not being a brat IMHO. Charities are businesses. If they can use donors'/funders' money to hire someone else they can certainly hire you instead.

Just politely say you can't allow alteration of the work by other parties. The right to use is for the entirety of the piece unaltered. I do this often as a portion of my work are for "causes."



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Dylan Hargreaves
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 12, 2011 at 12:45:57 pm

Thanks Craig.

I just called up the health authority and had a chat with the woman who commissioned the doc. She has a very different story altogether.

Apparently, the charity asked her about making available copies of the whole DVD - essentially acting as a distributor - which neither of us would have a problem with.

However, the charity has come to me asking for access to unedited rushes - an entirely different thing. The health authority woman said she would never just ok a request like that.

This makes it very simple. An offer to produce the charity's project, but not licensing our footage for use elsewhere.


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Richard Herd
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 12, 2011 at 3:00:19 pm

Has anyone actually seen the documentary yet?

I would find out exactly why the charity needs the footage. Is it to put it on their Web site for the purpose of helping the needy? If so, you give them some footage, let their web department do what they want.

Is it to resell to another filmmaker so that person can make a competing documentary? If so, don't give them any footage.

Is it to make an ad to screen on tv? Then give them the footage but make sure you get a big public thank you during the spot.


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Todd Terry
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 12, 2011 at 3:43:06 pm

I think this is really pretty clear... you're just worried (unnecessarily, I think) about coming off looking like not-a-nice-guy. But it's fine to come off looking like a good businessman, and not a pushover.

If I read it all right, basically the client owns the rights to the project in its completed finished form, and may do with it as they wish as long as they don't alter, edit, extract any elements, reuse any footage in another project, etc. We have clauses in our productions like that all the time, it's not that unusual.

I think you basically have two options to give them...

1) Give them a nice rate and offer to do their new project for them. As you said, they could have come to you for it in the first place.

or...

2) Simply sell them the rights to reuse the footage. The scope of those rights can be as narrow or as broad as you want... whether it's just for this specific one-time re-usage, or turning all rights over to them completely.

Anything else and you're just giving away something that they are not entitled to ask for.

I'd say the only caveat might be if this client is a long-time friend and associate, or a big continuing client that you rely on for numerous regular jobs that come in. In that case, you have to treat them a bit more with kid gloves, and weigh if it's worth giving away the footage or cutting them a special deal in light of other work that might come in the future.

But, barring that, you're not being a jerk for saying they can't just have what's yours, especially for free. That's just business, and I'm sure they will understand it. They might not like it, but surely they'll understand it. I'm sure they work with businesses and other vendors all the time who are not dishing out unlimited freebies just because they have the "charity" label.

Let us know how it turns out.

T2

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



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Nick Griffin
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 12, 2011 at 5:03:11 pm

Maybe I'm being overly simplistic here, and maybe it's too late to go down this road, but...

Dylan, why not simply pitch the charity on giving you the job instead of the other production company? Can we assume that the other company isn't working pro bono, and therefore there is some money to be made? Approaching the problem this way would allow you to be polite, frame your argument of ownership in a business-like manner and throw the decision of what to do back into the laps of the people running the charity. It's up to them to choose you and get to use the footage or choose the other company and have to pay a lot for the footage or not have it at all.

Oh, and Todd is right about if there's a long term relationship involved. They're worth more than just about any single project.


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Mark Suszko
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 12, 2011 at 8:24:42 pm

Great advice from Craig, Richard, and Todd, and I agree. But I also like Nick's idea. Let's step back for a minute and consider: is this about getting out a health message to help as many people as you can, or it really only about making as much money as possible?

With the knowledge that contractually speaking, you don't have to give them anything, I think what I would do is offer to let them have for free or a very moderate sum, dubs of raw footage of the parts specifically of the people from the charity, With a proviso that your shooting gets a credit on screen at the end. The assumption would be that they want to make use of your excellent photography, sound, and lighting to re-purpose that footage for a parellel campaign to support the same cause. In that regard, the other production is not so much a competitor as ancillary material, that could actually build audience and sales for the larger main product. It's like letting someone make a promo for your product for free.

Most likely scenario, you interviewed some victim or patient, and the interview was very powerful and emotionally engaging, the kind of thing that's unlikely to be captured a second time, but it could be re-cut to make some powerful Public Service spots. Considering the charity contributed to the effort of putting that together in some way, I would personally be willing to let them have some free or near-free access to that specific material, because we're on the same team, so to speak.

I would not offer freebies on the graphics or the other segments of the show to that charity. I would not be "down" with some other production company getting paid to use my material without payment and credit, though. Especially for a competing program of the same type as the master. That would be harming the investment the original poster made in their project.

Nick's idea offers a third way that also gets you off the hook, if they don't want to play. You offer them a sweet deal on the footage but only if you do the work. You discount your normal rate by say, ten percent for this one case "to honor the people we're trying to help". If they don't go for that, then you can say you made an honest attempt to meet them half-way and it just didn't come together.

Then sit on this footage. If they really want it, they probably are also on a tight timetable to use it. Use that ticking clock as your leverage. Sweat them out. I bet they will come back a week or so later, and agree to your deal, because it all boils down to the footage being un-reproducible within the time and resource envelope available. You have what they need.


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Dylan Hargreaves
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 13, 2011 at 11:16:37 am

Hey all, thanks for your responses and apologies for dipping out of the thread: had to go a-shooting yesterday!

Well, it all seems to have come to a successful conclusion. I offered to produce the charity's new DVD project, but they said they had no money for it, and couldn't afford it. However, I did a slightly retweaked version of the full doc, removing a couple of local references, to run on community tv, and it occurred to me there was no reason why they couldn't have that version so long as it was on the understanding it could only be used as is, and was not to be cut-down or re-edited in any way. They are delighted with my offer.

This is great, as it means the film will get seen by more people who could benefit from it and I get to help out a charity.

My only problem with the whole issue in the first place was that this isn't the first time a third party has asked if they can 'have' footage we've shot for other clients, and no matter who's asking, I find it a bit cheeky.

There's a general lack of understanding out there about the value of video work in its completed form, and I get the impression that people think because you've been paid for it once that it's fair game for them to get their claws on it gratis.

Do stills photographers get this too?


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Richard Herd
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 13, 2011 at 5:11:12 pm

Stills get it too.
So do musicians, songwriters, illustrators, graphic designers


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Bill Davis
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 18, 2011 at 7:55:19 pm

Not to hijack the thread, but the larger problem I'm seeing is an increasing number of clients who want me to produce work for them - but then they want to take delivery of my TIMELINE files as a part of their project deliverables.

That scares me a lot more than widely distributing intact copies of a finished work.

I don't want to have them either hack up my work, or worst yet, go to school on my efforts and take over all the subsequent downstream work based on my original creative work.

Sigh.

"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'Connor


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Mark Suszko
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 18, 2011 at 10:59:59 pm

There's a reason the Colonel keeps the list of herbs and spices secret. And coke keeps their formula for sugar water locked up. So it is with us. If you do give up your secret sauces, I hope you're charging appropriately and not just giving it away.


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Malcolm Matusky
Re: A 'Sensitive' issue has arisen. Some advice appreciated
on Oct 15, 2011 at 12:17:33 am

If they (the other company) are making money, make sure you make money as well. If they are doing it for free, then charge your costs to provide the material, but no "rights" to any of the footage.

Malcolm
http://www.malcolmproductions.com


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