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Client wants to edit final video for other purposes.

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bryan ong
Client wants to edit final video for other purposes.
on Sep 6, 2019 at 9:19:59 am

Title simply says it all, is it okay for a client to edit a final video we provided for other purposes. Example, cutting snippets of the video and adding their own music and titles to it. How would you go about it?


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Mark Suszko
Re: Client wants to edit final video for other purposes.
on Sep 6, 2019 at 2:07:34 pm
Last Edited By Mark Suszko on Sep 6, 2019 at 2:11:51 pm

The question that answers your question is:

Was your project a "work for hire", or did you have something else in your contract?

...and you DID have something in writing, right?


If your original work was a work for hire, the client can do pretty much whatever they want with it. That's what work for hire essentially means in the US anyway. You're trading your work product for a one-time payout and no continuing rights or residuals on it.

Unknown at this point is, who owns the footage you made the edit with, and if THAT was a work for hire too. In the case of the footage, you can get into a stalemate situation where the client owns the finished program, but the shooter retains the right to the original raw footage, however, the shooter can't re-sell his/her raw footage without the client's permission, and the client can't re-purpose the raw footage without the shooter's okay.

All of these problems can be solved and never some up, if you make a deal memo or contract that spells out who will own what, for how long, and under what circumstances more can be done with the work product. For a really interesting case study on this stuff, search out "Flagler v. Walmart" http://pinkslipblog.blogspot.com/2008/04/flagler-productions-vs-wal-mart-wh...



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Todd Terry
Re: Client wants to edit final video for other purposes.
on Sep 6, 2019 at 2:38:04 pm

What Mark said.

It just depends on what your agreement was with the client in the beginning.

Our clients know going in that our contracts with them specify that they own the finished product as a whole, in that form and can do with it as they wish (which mostly means air it wherever they want, since we mostly produce television commercials)... but they cannot chop it up, reuse any elements for another project, and such. At least not without our permission.

We've only had to bust a client for doing that once, and it was just by chance that I saw a shot that I had photographed used in a commercial that was originally from a different commercial we had produced for them. They pleaded ignorance that they weren't allowed to do that, so I encouraged them to re-visit their original agreement. And I sent them a bill.

T2

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



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Mark Suszko
Re: Client wants to edit final video for other purposes.
on Sep 6, 2019 at 4:47:40 pm
Last Edited By Mark Suszko on Sep 6, 2019 at 4:52:20 pm

Absent a written contract or deal memo, a judge is going to assume it's a work for hire. Almost always.

If you're just starting out doing this stuff, you might assume contracts and deal memos need a lot of highfalutin' legal terms thrown in, all that "party of the first part" kinda stuff. Not always true.
You can, and probably should, write a deal memo in common everyday words, and it will work, as long as you are specific enough in the descriptions and cover the main kinds of situations that could come up. Here's a partial list of the things you want to have an agreement about:

Severability and cancellation policy:

What happens when this project is done, or if it dies or is stopped before the expected time and expected deliverables or results? Who owes how much to whom at that point, and who can terminate the agreement under what terms? What does each side walk away with?

A simple example of how I might word this in a casual Deal Memo: "Severability: either party to this agreement can stop the production at one of four milestone points: One: After the contract is made, but before actual pre-production has begun, Two: after the shooting is completed, but editing has not begun, Three: after the first draft of the edit is reviewed, or Four: after the second edit has been made to address the client's changes. Client agrees to making a progress payment of (amount or percentage) at each of the four milestone points, and the producers are not obligated to continue the next phase of production without the progress payment being made for each previous phase. Once the second edit is approved, final outstanding payments are due upon delivery of the finished product. Product is released when the final payment clears the bank. The producers will in every case retain the client's original deposit, and can bill at their hourly rate for the hours actually expended up to the point where the project was terminated. Client will not be asked to pay for services planned or contracted, but not actually performed, except in cases where the producers had to book outside talent or subcontractors or rent additional equipment or buy materials specific to the production. In those cases, kill fees and refunds associated with that loss are the responsibility of the client. The ownership of work product and any collateral files or templates of a cancelled project reverts to the Producers: client may not use any portion of the video or audio or graphics without a new contract and compensation, and Producers agree to destroy the unfinished project materials and to never sell such material to anyone, nor release or publicize them. If the project is interrupted or prevented from completion by a natural disaster or the loss of key equipment, footage, or personnel, the project will be considered terminated and the remedy is limited to payment for kill fees and deposits and the billable hours actually performed. Once shooting days have been scheduled and required rentals booked and actors and craftspeople retained for the shooting day, client will be responsible for the costs of cancelling or abandoning the shoot, paying the day rate for those rentals and personnel, unless the cancellation occurs with at least two business day's advance notice."

Additional usage:

Once the project is done, do you want to allow the client to re-purpose and re-cut it, and do you want them to have to do those follow-on or derivative works thru you exclusively? Do you want to let them take your stuff anywhere they like, as long as you get a fee, and how much will that fee be? Do you need to have your name in the credits any time this project is used in full or in part? How do you insist the credits read? Did you use union talent that gets a residual every time this work is seen or used? Did that contract with the union talent have any limits on how else the actor could be used? This could be very important and expensive. I can think of a few scenarios that makes this something you should want to lock down: You hired an actor to be a spokesperson for a campaign of some sort, and the footage of them later gets re-used for something the actor would never agree to be in. You hired a composer to score your work, and the client pirates that score for something else and it turns out to become a huge breakout hit and the composer didn't get any additional money for that.


There's yet more that can go into a deal memo or contract, but I'd say 90 percent of the things that become huge problems for the unwary are covered in just these two sections.

The TL/DR version:

Pay as you go; get paid in phases that coincide with pre-production, production, post, and delivery - do not become the client's bank, charging no-interest loans on work you're doing for free.

Have an understanding of who owns what and who pays for what, if it all breaks down.

Know what you will own and what you do not.

Lay out what everything costs, in advance.

Always make sure your subs and anybody YOU hire get paid up front.


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