Learning a Lesson

[Dave Blackhurst]

Any contract or provision that is illegal is automatically VOID, regardless of whether verbal or on paper. I believe a green drama teacher made a HUGE error, and unfortunately cost the OP a lot of time and effort - what bothers me is how "the call" happened after he was trying to back out of the arrangement. THUS why I said dump the project, block the guys' number and avoid - this is a headache no one needs...

For the OP, the problem here is the person who SHOULD have checked the clearances either "forgot" to do it up front, or (IMO) is using it after the ship went down as an cheap "out" - my advice stands. Walk away, it's not worth dealing with this sort of situation. Maybe next time ask about the clearances.



Steve - you continue to amuse me with your copyright arguments and attempts to take things out of context, your statement illustrates my point -

"When Joe's output was a grainy, streaky VHS tape with warbly low-fi sound, nobody cared much and it probably didn't make much difference, but now the fact he can make something for a couple of kilobucks in gear expense that looks and sounds almost as good as Lucas's million-dollar opus means that he is in the same ballpark as the Hollywood studios and should be playing by the same set of legal requirements when he takes his service to market."

So it wasn't copyright infringement (or it WAS and no one cared) when the equipment couldn't take the voice and transmit it over the airwaves, but it became an infringement and actionable when someone logically used the technology at hand (Carterphone case) to achieve that end... I can hear the Judge laughing now.

Your own "argument" tells all - as long as the quality of the taping is crappy enough, no one cares if it's an infringement (that certainly makes the IP holder look good...), but if it's actually done semi-professionally with state of the art equipment, he's a criminal... and the sharks circle... sigh... Oh by the way, I don't think too many videographers are arrogant enough to consider their "wedding /event video" work in the same league as Lucas... or their equipment, however good, to be anywhere close to even ONE "professional camera" on a Hollywood set... I know you'd be laughed to the curb for even saying such an absurd thing in some forums. But as "consumer" gear improves (and some of these video guys produce "cinematic" work that blows you away), obviously it's harder to make the distinction.


The bottom line is there needs to be some logic, and certainly "reasonable compensation" to the IP holder (which is likely to be "micropayments", given the typical size of an "event market") for reasonable use in a digital world. The idea of squeezing the licensee for every little aspect (and every possible use of the 1's and 0's) is not a wise way to boost your revenue, but I understand the twisted logic of those who think that way. It shouldn't be a matter of big or small, rich or poor, but it IS because "them with the gold made the rules", and ultimately we all suffer in that sort of "economy".

The continued attempt to argue that because big studios must run on one set of rules there must be no mercy and no quarter (and a lot of name calling) for the small event shooter whose "market" is at the most a few dozen people who'd like to have a decent memory (and don't feel like shooting it themselves) of an event they or a family member were involved with... the economics are so completely inequitable and incomparable that the argument just elicits a chuckle...

I know that organizations like the RIAA liked to get out the brass knuckles (or their attorneys, same diff) and beat up grandma to "set an example", but the public "badwill" that results can destroy the very underlying value of the "product". I used to shake my head every time I heard a whinge about the "declining record industry/sales"... DUH, screw your potential customers and grind them for all they are worth, and you won't have "customers", your IP becomes WORTHLESS, or at least worth less...

CONVERSELY, make the product available at a reasonable price without a lot of hassle, and make more $$. But don't make granny (or Joe) a criminal because you have no business sense. The economics are simple - when I can buy a DVD for $15 or less, why the heck would I even BOTHER making a copy (or worse yet buying a bootleg!), even though I can? But if you want me to pay $6M for a dvd so you can recoup your production cost on one sale... hmmm, if that DVD is really worth that, I hear DVD burners spinning up... and obviously this is an attractive target for the REAL criminal who should be prosecuted, and vigorously!

In a digital world, if your IP is worth something, put it in digital form, run it up the flagpole and see who salutes - if Sony wants distribution rights, charge accordingly, if "granny's video memories" wants to burn a stack of DVD's for the bridge club's wild trip to Vegas, charge accordingly if she'd like to use "girlz just want to have fun" for the soundtrack... it's not rocket science.

'nuf said.

[Steve House]

Dave, I agree that it would be a good thing if small users could license materials for small fees and simplified licensing requirements. I also agree that it would probably be a good busness model for the IP owners as well. What I disagree is your statements that digital technology has made it necessary for the laws to change. While it would certainly be nice if the copyright ownersof "Little Shop of Horrors" made the necessary licenses for you to film a high school performance of the play with subsequent sale to the parents cheap and easily obtainable, there is no reason that they are ethically compelled to do so and digital technology hasn't changed that. In a culture that values private property rights above just about all else, the owners of the IP are the sole arbiters of who can use it for what and how much it's going to cost. People who want to use it have only two ethical options - secure the perrmissions and pay the asking price or not use it at all. If that means you can't sell DVDs to the parents or you lose a contract to shoot a wedding because you can't use the bride's favourite song in the video, so be it. The fact you need those rights in order to engage in your chosen business is irrelevant and does not mean the law needs to change so as to compel the owners to give them to you at the price you're willing to pay.

[Dave Blackhurst]

Steve -
Simply put, as technology has changed, so has law - it either adapts or becomes an anachronism or a joke. Change happens, it's reality, unless you're a Luddite. But surely you realize the changes will happen, with or without one's willing participation. While the fundamental principles of law remain relatively constant, the application can vary widely... and technology can change the game faster than bureaucracies and institutions can adapt!

Those who see the change and go with it survive, those who don't go extinct. Ask the next typesetter you meet... I'm seeing more "big" studios thoughtfully seeking to find ways to make money in the new digital world in which micropayments scale rather well, instead of desperately litigating to protect a dying business model. The wise IP holder will realize that a fair price = more buyers = more exposure = more popularity = more income...

But to gracefully return to the thread... if an IP holder doesn't have or wish to adapt an accomodative licensing strategy, go on to the next one, there are lots of options out there.

The OP in this case didn't have that choice and probably didn't realize the issues the director ignored. BUT... I'm guessing the noobie teacher was planning on a stupendous first outing, and looked forward to documenting his grand debut... the innocent OP got drawn in... when the Titanic went down, the guy needed an out (damage control), so a call to the IP owner was all too "convenient" to kill the "deal". It would do the trick though...

For the OP, lesson learned, but walking away and not looking back lest your tripod turn into a pillar of salt seems the best "solution", however disappointing it must be. Sometimes grand plans go down in flames because someone didn't watch the P's and Q's, this looks like one of those times things didn't work out...

[Steve House]

Of course the law changes as culture evolves and technology certainly is one of the driving forces behind it. But you're overlooking the fact that there is nothing in the law today that prevents owners of IP from making it available with minimal complications and at low cost to people who wish to use it if they choose to do so. If you wish to use a piece of IP you contact the copyright owner directly and negotiate a deal, just like when you purchase anything else. If someone wishes to license you the rights to use a popular song for $5 per DVD or to grant a license to a school allowing them to videotape the performance of a play and sell copies to the parents, there's nothing preventing them from doing it. In fact, nothing prevents an IP owner from allowing anyone who asks the right to use their work completely free of charge if they wish and IP owners such as Bono have been known to give permission to use their work free of charge in documentaries for causes they support. The only thing that requires a change in the law would be if one were to remove it from being at the IP owner's option, as it is now, and instead to make it compulsary. But that is a fundamental violation of their property rights, effectively confiscating their personal property, the fruits of their labours. Certainly there are circumstances where the public good is considered to outweigh private rights and that's where "fair use" kicks in. But one would be hard-pressed to argue that there is a prevailing public interest in making popular music cheaply available to wedding shooters who wish to use it in a product they're offering for sale or making the rights to videotape the performance of a play by a school and then sell copies available either at no charge to event shooters or bundled within the performance rights their client has purchased.

[Cole McDonald]

$10/DVD 30 DVD minimum... They owe you at least $300. I use 2 hour minimums doing tech support all the time. If they choose to use me for 2 hours, I'll work for 2 hours doing whatever, but most of the fixes I'm called for are 15 minute jobs and people try to pay me for 15 minutes of housecalls.

You agreed to a minimum, ask for them to honor it. The production problems are part of using students to run a production, part and parcel. The production problems are not your problem. You're being paid for time spent providing a service, not for producing a student musical theater project. You did your job and went above and beyond... why shouldn't you get paid for that... and why shouldn't you insist you do.

[Dave Blackhurst]

Cole makes a good point - "a worker is worthy of his wages". While I suspect that recovering from the teacher may be difficult under the circumstances, a call to the principal might be in order? Remember there's a hierarchy, and damage caused by the errors of the underling might be corrected by the superior if approached tactfully.

If the question of lack of deliverables comes up, I think it would be appropriate to point out the work done, and that the project only became undeliverable due to the failure by the teacher to properly "clear" everything before contracting to have a video made, not the fault of the OP.

Perhaps in the future the OP will ask a couple extra questions and avoid this sort of "misunderstanding"...

[Dave Blackhurst]

Steve -
We are on the same page to an extent. Nothing PREVENTS a reasonable licensing system... but the EXISTING convoluted system subjects the smaller business entity to potential abuse at the hands of "the law" (and an ornery or arbitrary IP holder), simply because there are all these various "rights" with esoteric definitions and applications defined in a time of vinyl records, lo-fi VHS recorders, and 28.8 baud modems.

We live in a time of 1's and 0's, media shifting and digital storage/delivery/display. Time's changed, the law needs to catch up. Meanwhile, to maintain the flow of commerce and a logical trek towards a "digital IP law", sometimes one must choose to "bend" or thoughtfully reinterpret the rules to fit the new paradigm. The lawyers will eventually get around to doing so once a sufficient amount of money is spent (wasted?)...

I'm not advocating violating IP rights, but I'm pulling for "reasonable use" of IP once purchased in digital form. That's different from "fair use" in the sense that the end "user" or a service entity wishing to incorporate a piece of IP into a project for that "user" needs to have a sensible method by which a license can be "purchased" at a fair rate without having to have a team of lawyers to "clear" rights...

Oddly, the OP's position here is illustratative, he expected that the "performance rights" reasonably allowed for audience members to tape (memorialize that performance on video), and that as such, he could be hired to do that job for them so they could enjoy the show and still have a memory to enjoy later. He was "hired" by the teacher who had presumably purchased the right to perform the play... and by reasonable extension allow for it to be videotaped by (or FOR) audience members. When the performance didn't go as expected, and the "director" wants the project deep sixed, suddenly "videotaping/distribution rights" come up... HMMMMM. I'm willing to bet there were a few dozen "private" cameras running, did the director confiscate/destroy all of the tapes? May have wanted to, but...

Sometimes the ephemeral nature of an "event" is an advantage (here, I'm thinking the "director" would prefer to forget his "debut"), other times it's something you want to remember (I suspect this situation would be quite different had the performance been "brilliant").

This is the plus and the minus of the relatively recent ability to permanently record/re-record/media shift/time shift ANY moment, both audio and visual in "high quality" 1's and 0's. Sometimes you get "Gone With the Wind", other times you get "Ishtar"... I only toss that in to illustrate the potentially wide variation in market and market VALUE of "IP"...

The ultimate question for any business of any size is how to provide a service or a product at a price such that enough people will want to trade their hard earned moolah for that product or service, so you can pay the bills and put some away for a rainy day or reinvest. IP law should protect all parties and provide a reasonable structure to achive that end.

[Steve House]

Originally Posted by Dave Blackhurst

...

Oddly, the OP's position here is illustratative, he expected that the "performance rights" reasonably allowed for audience members to tape (memorialize that performance on video), and that as such, he could be hired to do that job for them so they could enjoy the show and still have a memory to enjoy later. He was "hired" by the teacher who had presumably purchased the right to perform the play... and by reasonable extension allow for it to be videotaped by (or FOR) audience members. When the performance didn't go as expected, and the "director" wants the project deep sixed, suddenly "videotaping/distribution rights" come up... HMMMMM. I'm willing to bet there were a few dozen "private" cameras running, did the director confiscate/destroy all of the tapes? May have wanted to, but...

Sometimes the ephemeral nature of an "event" is an advantage (here, I'm thinking the "director" would prefer to forget his "debut"), other times it's something you want to remember (I suspect this situation would be quite different had the performance been "brilliant").

....

From the perspecitive of the owner of the IP your argument just doesn't hold water. Let's assume you wish to own a performance of "Little Shop of Horrors." Why should the copyright owner make X dollars from allowing taping of a performance by a high school troop when he can make 100,000 times X dollars licensing Sony to make a movie that you'll go buy on DVD? He makes more money AND he has the assurance that the audience is seeing the work in its best light. Allowing taping of less than 100% professional perfomances dilutes the market for his work and he loses money. Of course he's assuming here that the reason you want the tape of your kids performance is that you want a tape of "Little Shop..." not because you want a tape of your kid. And from his perspective that's not a totally unreasonable assumption.

I still don't understand why you hold that digitial reproduction methods mean that the private property rights of owners of IP need to be diluted. Just because it's easier and cheaper for you to make excellent copies of a work doesn't mean that it should be easier and cheaper for you to get the rights to incorporate other people's work into your own products. It actually could be argued that if anything, the advent of digital technonology should mean the law must be strengthened, inflicting more severe penalties for the unlawful appropriation of other people's intellectual property. Since it's so much easier to commit the crime, the disincentive for doing the deed should be even more severe in order to prevent it from happening. I'm not saying I argree with that idea, just that your argument holding that the digital revolution means the law should become more lax is equally flawed. Basically I think the technology of the creation and distribution of intellectual property is irrelevant to the issues regading the right of the actual creator of a work to be the sole determiner as to its commercial exploitation. You have the final say as to who can use the video you shoot for what purpose and at what price. Why aren't you willing to grant others the same absolute right to control their own creative output? Just because you WANT to use it doesn't mean you have the RIGHT to use it. To advocate that the law needs to change, you need to establish that the present law unfairly prevents you from doing something you have a moral right to do and ought to have the legal right to do - so how about it? By what reasoning does your desire to use someone else's intellectual property trump their right to retain absolute control over it? Just that fact that digital technology makes it very easy to do isn't enough.

[Dave Blackhurst]

Steve -
Your argument doesn't hold water. Let's say a "big studio" wants to do a full screen treatment of a play, because it's popular... or they think it will be. They'll bring in a multimillion $ budget and name talent... all that ADDED to the "story" makes a salable product of broad interest.

Small Town Jr. High's production of the same story starring li'l Johnny and Sweet Jane shot by the local videographer "live" with a couple grand in equipment is not going to have the same attraction to the mass market (or the "same" production value)... but it still has a value to the IP holder in that it spreads the reputation of the work in a healthy way. If the play is fun and enjoyable, no one's going to blame the IP holder because Susie was a quarter step flat on a few notes...

It was your own argument that no one cared about a lo-fi production... but it isn't about the quality of the production, it's about the extremely limited MARKET and market VALUE for such a production. The only change here is that it's possible with newer technology to produce a higher quality recording thereof, but the limited market value remains when you're talking about a production with an audience of dozens, not millions.

Treating ALL productions as though somehow they are the same and should pay the same fees (and that's the foundation for your odd approach) is silly - the performance license doesn't work that way does it?

Remember too that the IP holder chooses to license "Small Town Jr High" to perform the work, so they already realize the benefits of doing so - how they wouldn't further benefit by allowing people to take home a memory and share the enjoyment of that particular production is beyond me, and if they allow private parties to tape, they reasonably should be better served by a "professional" taping... it only makes sense.

[Jason Robinson]

Originally Posted by Dave Blackhurst

Treating ALL productions as though somehow they are the same and should pay the same fees (and that's the foundation for your odd approach) is silly - the performance license doesn't work that way does it?

Being "silly" and being "the way things are" are two different things. The copyright holder is perfectly within their right to ask whatever price they want.

And yes I agree that it is silly how IP laws are currently structured, but until a circuit court judge starts asking me to help him re-wright copyright law, then that is the way things are for now. Like it or hate it. And arguing with Steve on this issue is a moot point, no matter how much the rest of us wish he was wrong. He isn't.

[Steve House]

Originally Posted by Jason Robinson

Being "silly" and being "the way things are" are two different things. The copyright holder is perfectly within their right to ask whatever price they want.

And yes I agree that it is silly how IP laws are currently structured, but until a circuit court judge starts asking me to help him re-wright copyright law, then that is the way things are for now. Like it or hate it. And arguing with Steve on this issue is a moot point, no matter how much the rest of us wish he was wrong. He isn't.

In some cases I wish I was wrong! But at the same time, I don't want to see people compelled by law to grant licenses to others that they don't want to grant or be forced to do so at fees that are below what they believe to be the fair market value of their work and are/or less than they feel they deserve. The fruits of your labours should remain your personal property and under your control, or under the control of those to whom you sell the rights in the course of earning your living. We have to be careful that in the process of making it cheap and easy for event and wedding shooters to incorporate other's IP into their work we don't harm everyone else in the music, broadcast, film, video, publishing, etc industries who rely on the sale of rights to IP they created or have contributed to the creation of in order to earn their livelyhood. Money not spent for the rights to use a pop song in your wedding shoot is money out of the pocket of the studio musicians, engineers, technicians etc who are employed by the owners of the intellectual property and paid as part of its creation.

[Chris Luker]

If you are an IP holder, you have the right to ask for as much as you want for use of your IP... including letting it go for free.

Shouldn't it be the person who wants to use the IP be the one negotiating with the IP owner on how much it's worth with the owner having final say? It must be worth something if they want to use it.

Nothing is stopping you from contacting the IP owners to get a good price. You just have to convince them that it's worth it for them to allow you to use their IP.

Creating things that people want to use should give you power over the things you create. If it's not worth the time and effort to clear it, make something yourself. If you can't, then you know why you have to pay someone that can.

Even when the government eventually will get involved and order a compulsory license, nothing stops you from getting the IP owner to give you a better rate... if they want to.

Sorry about the rant...
//IP owner

[Jeff Lanctot]

Oh man, that's rough. I had a similar thing happen to me a few years back. Although I hate having learned something 'the hard way,' I did take several lessons away from the experience:

- Like any good construction contractor will do, I now only work gigs where my time and materials are covered up-front. That way if things go south, at least I'm not out for my upfront expenses. This has meant that I've had to turn down (or been passed over) for a few gigs, but not as many as I had feared when I implemented the policy, and I've found that it helps weed out some of the unprofessional clients anyway.

- Written contracts = always. Regardless of the size of the project, or the amount of money changing hands. I even use written contracts for the pro bono work I do because even if there's no money involved, it sets a professional 'tone' for the gig. I'm always surprised by how many potential clients think that all they're doing is renting my 'sweet equipment,' and that I don't bring anything to the table. Contracts help change that perception.

- I know how much I charge and why, and I make sure the client knows it as well. That is to say, I may choose to lower my rates, or do something for free, but the client always knows how much my services WOULD have cost, had I been charging them full price, and specifically what that cost gets them. I find that this helps dispel the common notion that 'any dude with a camcorder and a tripod could do what you do.'

-Don't throw good time after bad. I think we can all relate to the notion of wanting to produce the best product possible, and if the problems were my fault, I'll bend over backwards and spend as much time as necessary to try and correct the problem. But when it comes to things that are 'acts of God' or clearly someone else's fault causing a gig to go bad, that signals a work stoppage for me until I've talked with the client, revised the contract, etc. This doesn't always mean that I charge full price for remedial work, but at least the client understands what happened, what it's going to take to fix it, and how much that will cost to do. Especially with pro bono, or reduced fee work I also put a hard limit on how much time I am willing to put towards fixing something that wasn't my fault and make sure the client understands my limits.

- It's been beaten in this thread, but respecting copyrights is of paramount importance. I have a clause in my contract that the client must initial acknowledging that they have secured all the proper releases, and indemnifying my company in the event that proper licensing has not been secured.

Anyway, those are some of the lessons I have learned the hard way. Hope they help!

Regards,

Jeff

[Tom Blizzard]

One month later and here's the conclusion. First I've got to thank all of you for your comments. So I think it's only fair that I let you know how things turned out.

About a week after the last call from the Drama Director, he called again. This time, to my surprise, he told me that even though they could not take the DVDs and/or even give them away, they were willing to make good on the verbal agreement. So he told me that the school would write me a check for $250. What a surprise. I am serious. End of story.

Thanks again for your comments.

[Dave Blackhurst]

Glad to hear it worked out Tom, it's good when folks do the right thing even when things don't work out as expected! And now you know a whole lot more for "future reference"!