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Unarchiving fees?

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Daniel Hoffman
Unarchiving fees?
on Apr 5, 2016 at 1:56:33 pm

Hi all,
I have a question about archiving and unarchiving fees.
I made graphics for a client a year ago. Their client asked them to do another round of the videos I made graphics for. So I was asked to dig up those animations and pass them off again.
Fortunately I had them archived.

Should I charge a fee for the archiving, unarchiving, re-licensing of the animations, etc?

Thanks for the input!

Dan

http://www.danielhoffmanart.com


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Nick Griffin
Re: Unarchiving fees?
on Apr 5, 2016 at 2:24:30 pm

I can only tell you what we do. Since we bill our projects (in all media) based on time, we bill for the amount of time it takes to search and recover from archives. Not a lot of money, but at least some compensation for the time. As to re-licensing, no. When someone has already paid for something their feeling likely is that, while they technically don't "own" it, they sort of do. Not worth the ill will and bad feelings, IMHO.


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Daniel Hoffman
Re: Unarchiving fees?
on Apr 5, 2016 at 2:28:48 pm

Thanks Nick much appreciated

http://www.danielforresthoffman.com


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Todd Terry
Re: Unarchiving fees?
on Apr 5, 2016 at 2:31:49 pm
Last Edited By Todd Terry on Apr 5, 2016 at 2:32:25 pm

Sounds like we are in the same boat with Nick...

We do archive everything forever, and yes, we charge for it. It's not a huge fee, but it is enough to cover the cost of the drives we use for archival.

As for a fee for "un-archiving" stuff... well, yes, I guess we do, although we don't specifically call it that or bill for it that way. But the amount of time it takes to move files back from an archive drive to a RAID in one of the video suites is just part of the editing process and is simply billed as edit time with the rest of the project.

As for "re-licensing," are you talking about some limited-time rights to some elements (say a photograph, graphic, or piece of music that you licensed for the particular project for a set and limited piece of time that has now run out)? If that's the case, and you have to buy something again, then yes... obviously you will bill for it. But... if you are talking about licensing your design to the client and charging them again for it... then noooo, obviously not, never. They've already paid for it and the rights to use it.

The only exception I'd consider in that case is if your contract with them had already specified a specific usage time, say 13 weeks or whatever, and then they are now coming to you a year later and wanting it again. In that case, re-licensing would be appropriate, but not in any other circumstance that I can think of.

T2

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



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Daniel Hoffman
Re: Unarchiving fees?
on Apr 5, 2016 at 2:35:45 pm

Hey Todd
thanks for the feedback. It's a pretty new scenario for me.
Regarding the licensing...I guess I was thinking of the fact that they asked me to design these graphics for a specific video. Does that buy the rights to the designs in perpetuity for any project? Or is that normally limited to the project it was originally intended for?

Thanks again!
Dan

http://www.danielforresthoffman.com


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Todd Terry
Re: Unarchiving fees?
on Apr 5, 2016 at 2:52:01 pm
Last Edited By Todd Terry on Apr 5, 2016 at 2:55:07 pm

Typically when a client buys a design for something.... a graphic element, logo, color palette design, whatever... then they have usually bought the rights to do with it however they please, for as long as they please.

UNLESS you have specific language in your original agreement with them that limited its usage to a certain thing. You might want to do that in the future if you expect this to come up again and want to be paid for it for each usage... but be forewarned that clients don't like to hear that, they definitely have a "I paid for it, it's mine" mentality.

Of course there can be stumbling blocks to that. For example, you might buy a font (or other graphic element) for use in a design. But the rights for that font stipulate that while it is free for use for an ad or whatever, it cannot be used on an item that is to be sold. You see that stipulation all the time. So, lets say a garage band asks you to create a logo for them, and you chose a font or other element like that and only license the most basic usage rights from the vendor. Well, you could use that and create banners and posters and stuff like that all day. But then, they come and ask you to design a tee shirt that they are going to sell at concerts. In that case you would not only bill for your tee-shirt design, but you would also have to re-license them the logo design itself because you would have to go back and pay more for a different (more inclusive) license for the font.

You'll see similar stipulations in the licenses for stock photography... where rights purchases include some usages but not others.

In our business where we predominately produce television commercials, we mostly run into that with actors' performances. If a client calls us and wants to re-air a production we did for them a year or two ago, we don't charge them any kind of re-licensing fee for our work that went into the spot, they've already paid for that. But, they might not have the rights to the performances of actors in the spot... maybe we had only contracted with the talent for a 13 or 26-week run (it just depends on what kind of deal we made with the actor and/or their rep). If the time has run out, then they are going to have to pony up and pay the actor again. That is one reason we don't use union talent unless we just have to, because then we are automatically bound to the specified time periods for usage that was in our original SAG/AFTRA agreement. Almost identical situations exist with narration and music tracks as well.

T2

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



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Daniel Hoffman
Re: Unarchiving fees?
on Apr 5, 2016 at 3:00:39 pm

Oh man that gets hairy fast.
So what differentiates animation work from acting?
both are custom jobs for specific occasions. Actors get royalties though and animators do not. Though our animations are essentially us acting on screen through our graphics right?

That might be a whole different conversation.

I really appreciate the feedback. It's a big help.

http://www.danielforresthoffman.com


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Todd Terry
Re: Unarchiving fees?
on Apr 5, 2016 at 3:08:39 pm

By the way, Daniel, you do great work.

Although, I was mildly confused for a moment because the first time I clicked your link it took me to a site in Japanese for an on-line drugstore that specialized in hair care products. Couldn't say why, I didn't do anything but click. Tried it in a different browser and it took me to your correct site.

Good stuff.

T2

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



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Todd Terry
Re: Unarchiving fees?
on Apr 5, 2016 at 7:07:41 pm

[Daniel Hoffman] "Actors get royalties though and animators do not. Though our animations are essentially us acting on screen through our graphics right?"

Well, yep they essentially are.

The difference is, your finished graphic doesn't have an agent constantly asking for more money nor belong to a union that governs its usage.

It's also about future marketability. If an actor appears in a commercial for a regional Honda Dealers Association (one of my clients), for example, and doesn't have any protection as to the length of its usage or geographical usage, that would very likely bar that actor from getting hired for work with any other brand of automotive work anywhere. However, if his commercial was stipulated for a 13-week run only in the state of Florida, that's unlikely to have any affect on the actor being cast in a job for BMW Association in California. When you put out casting calls for talent through Breakdown Services or any of the other big companies that manage casting calls for talent agents, one of the first things you have to list is "conflicts." For example, one of our big clients is a large credit union, and we're constantly casting actors for them... and the conflict we always list is "national financial institutions." The same pool of actors is constantly going for all the same jobs, big or small. If I didn't list the conflict it would be entirely possible (likely, even) that I'd get a submission for my southeastern credit union from an actor currently appearing in a national Bank of America ad.

Your graphics work for Company A doesn't preclude you from also (even simultaneously) doing graphics work for Company B... unless of course there is some kind of exclusivity agreement.

T2

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



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Daniel Hoffman
Re: Unarchiving fees?
on Apr 5, 2016 at 7:44:34 pm

All good points. How would it compare to music?
If a band's song is being used in one car commercial, another brand could still very well pick up a different song from that band. And they still need to pay per use.

http://www.danielforresthoffman.com


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Todd Terry
Re: Unarchiving fees?
on Apr 5, 2016 at 8:05:34 pm

Yep the music situation is very similar, in fact I meant to include music in my original list.

Virtually all music, except what is available in "buyout" packages, is going to be "rights managed"... individual tracks licensed for individual usage for specific periods of time.

Music rights are going to be among the most complicated (and expensive) rights a producer will have to deal with... probably 10x more complicated than any deal with an actor.

And different kinds of rights cost different amounts, of course. When we produce a television commercial, sometimes well after the fact we'll get the call "Can I get a file to put on my website, or YouTube?" Well, sure you can, but you may or may not have music rights to do that. And then the client is surprised to find that internet music rights can be a lot more expensive than broadcast rights... sometimes four or five times as much. They'll say "Just for my little website??"... well yes, their "little" website is potentially viewable by billions of people, whereas their local or regional commercial has a limited geographic audience.

Not to get into the nuts and bolts of it, but there are so many kinds of rights... publishing rights, performance rights, synchronization, mechanical rights... and each means something different and has to be taken into account depending on the situation and usage. It can get very hairy.

One story that I think I've told here before... a few years ago I directed a commercial for country music star John Anderson. He was a pretty big star then (not so much anymore), and he was hawking this barbecue sauce that had his name on it. He and his ad agency wanted to use a particular hit song of his in the commercial, an obvious choice. He wrote it, so no problem, right? Very wrong. He wrote it, and owned the publishing rights... but he didn't own the actual recording, Sony did. Hmmm. So, he thought, I'll just re-record it. Hmm, well, no... he wrote it, but he wasn't the SOLE writer, he had a co-writer. So they both owned the publishing rights. But no... the co-writer was now deceased, so his estate was co-owner of the publishing rights. There were a couple of more twists and turns that made it even more complex. In the end, John went and wrote something custom for the commercial sort of in the same vein of the song he wanted to use, and recorded it in his home studio.

And from what I understand from people who do a lot of it, that wasn't an unusually complex situation... more like par for the course.

This is why we almost always use buyout music, but even that has issues. A few years ago we did a big campaign for a bottled water company. We searched and searched, and finally found the perfect track, and on top of that it was from a fairly obscure source, not from the usual three or four music companies we usually use. The very day that the campaign started airing, NBC began using the same exact track as music for the promotional programming bumpers for all their shows.... so you could hear this same exact track, every half hour, on every NBC station, pretty much 24/7. We were pretty annoyed, but we had no exclusive rights to the track, so there was nothing to be done about it.

Oh well........

T2

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



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Daniel Hoffman
Re: Unarchiving fees?
on Apr 5, 2016 at 8:15:47 pm

oh man. It sure does get complicated. I guess I just wonder why so many different disciplines (acting, music, photo, etc.) have rights agreements, but graphic artists don't.

http://www.danielforresthoffman.com


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Todd Terry
Re: Unarchiving fees?
on Apr 5, 2016 at 8:39:07 pm

[Daniel Hoffman] " I guess I just wonder why so many different disciplines (acting, music, photo, etc.) have rights agreements, but graphic artists don't."

Well, your rights are are what you decide for them to be, and you can certainly craft future agreements with that in mind and only license specific works for specific projects and require fees for re-use... that is certainly totally doable.

You might get some blowback from your clients, though, they're just not used to doing it that way.

In a similar vein, our commercial production agreements provide a finished production... a client does not own or have the rights to any elements that make it up. Nor do they own raw footage we have shot. We spell that out very explicitly in our contracts. Also, while they own the rights to the finished project, they only have rights to its use as is... they cannot, for example, lift a shot out of a commercial we produced and use it in another one somewhere else (and yes, we've had that exact thing happen). But we can really only effectively exercise that right because we spell it out in our agreements in advance... otherwise, it might get ugly.

We recently had a client (an attorney) ask for his raw footage, because he found someone cheaper to do some web commercials for him. Our response was "Certainly," and gave him a price for the rights to use it. His only response was an email saying "Hmmm that's kinda expensive" (which it wasn't), and we never heard from him again. In his case, he wasn't really our client... he was our client's client (his ad agency hired us). So not only was this guy trying to get his footage for free, but he was doing an end-run around the very advertising agency he hired to do the whole thing in the first place. He didn't get very far.

T2

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



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