You want me to sign what?!?!!??!

Hey Everyone...

I am an independent contractor editor in the US. I work for lots of different clients and bounce around between them.

This week however, one of my largest and most consistent clients asked me to sign a contract as an independent contractor. I have worked for them on and off for almost two years without having signed anything. They have an in-house Producer and Executive Producer, but hire individual contractors for editing, shooting, sound, graphics, etc.

The contract that they want me to sign is really concerning, but I wanted to get peoples' opinions on it. The most concerning things are the following:

1) "Contractor warrants that...the work product delivered...does not violate or infringe upon any copyright, trademark....or confidentiality right of a third party." That seems like the responsibility of the production house....

2) "Contractor shall indemnify, pay the defense costs of, and hold harmless, The EMPLOYER, its clients, and their respective successors...from any and all actions, causes of action, claims, demands, costs, losses, liabilities, expenses and damages (including reasonable attorney's fees) arising out of or in connection with Contractor's Services,...or any use by the EMPLOYER or third party of any Work Product." As I understand that, if they get sued for something said in the video, I am responsible. This is my biggest concern.

3) "Contractor shall maintain i) comprehensive general liability insurance with a limit of $100,000 per occurrence...iii) errors and omissions coverage with ...a limit of $1,000,000 per occurrence....

I have to have E&O insurance?!?!? I'm responsible for the content of the project?!!?!?

Is this industry standard stuff? My gut is that I cannot sign this contract...I know that recently there was discussion here about the editor ultimately being responsible and some people said that they asked the Producer/Production house to sign an agreement saying that they assume responsibility for any improperly used media.....Thoughts?

Thanks!!!!!!

Some of the places I've worked for do ask for contracts. The ones I've signed are not particularly alarming.

> 1) "Contractor warrants that...the work product delivered...does not violate or infringe upon
> any copyright, trademark....or confidentiality right of a third party." That seems like the
> responsibility of the production house....

Well, no. It's both your responsibilities. Editors use temp elements all the time, but when you do, you have to tell them that if they like it, they have to get the rights. But if you're delivering a completed work to them, have used unlicensed copyright material, and don't inform them, then I'd say it's entirely your fault.

Contracts are negotiable. If you're not comfortable with some of the clauses, don't sign them, ask for them to take it out or explain them more thoroughly.


www.derekmok.com

Depending on how much work you do with these folks it might be worth you while to consult an attorney. Like you I would be a bit uncomfortable with some of that language. As Derek says contracts are negotiable. Be prepared to lose the client if they insist on having it all their way.

I sounds to me like they are working to avoid having to pay insurance premiums themselves by pushing the risk off to their contractors. Maybe it IS time for some new clients.

-Vance

It's a pretty standard sounding contract. The fact is even if you don't sign the contract, and you violate copyright, you can be held liable, both you and the producers.

Tom

Do you have E&O insurance?
Do any of you independants out there have it?

I don't, but I did on some occasions.

Forcing you to have E&O is absurd.

I have no idea if an individual can get E&O for himself but I worked on a series commissioned by Discovery a couple years ago and the E&O for it was something around $50,000 with the insurance company recommended by Discovery.

Not one single editor I have ever met has E&O. Does the production company have it? Sounds like they are doing projects that require it and are trying to make other people pay for it.

You're probably right on that. We were the production company and did the post as well so the E&O was part of the overall contract. I don't know about individual insurance, but I've certainly seen copyright liability clauses in individual contracts.

i have a commercial policy that covers most everything but E&O. and its about a grand a year. and thats a pretty standard request to have it.

but E&O is uber-expensive and ive never heard of a contractor being forced to have it. im told that the policy alone on E&O is like $100k/ year

Gregory, you cannot sign a contract like that. By taking the liability off themselves they will feel free to take risks with copyright material.

Thanks for all the feedback guys, this is helpful.

I have a meeting with my Producers and other relevant parties on Monday, so I will be sure to check back in, but it seems like a god opportunity to continue the conversation about responsibilities, liabilities, and contracts in the field...

g

> Gregory, you cannot sign a contract like that. By taking the liability off themselves they will feel
> free to take risks with copyright material.

I don't think it's quite as inflexible as that. It's like those places that put up signs saying "We're not responsible if you get hurt/lose your belongings". If a court finds that the establishment is negligent for something it should be responsible for, you'll get damages despite the sign. Likewise, if you're an employee at a company that makes you sign the contract above, and you're ordered to do something, say create a libelous video, and you write a memo in protest and they make you do it anyway, I'm pretty sure you can argue your case pretty effectively that it's the company that's responsible for the libel and not you as an individual. You were just obeying orders as part of the company. Just as confidentiality agreements don't always prevent people from giving testimony. Agreements can be declared invalid if enough proof is given. Then again, it's also down to what kind of lawyer you can afford.


www.derekmok.com

I wouldn't sign that crap. C-ya.

When life gives you dilemmas...make dilemmanade.

Points 1&2 are totally pointless clauses.

You are still liable for any content you put into the edit regardless of whether you sign the contract or not - it's just their way of saying it all your fault even if they ask you to put it in...

Know this and learn it well you are responsible for the edit content and all - point blank - end of - period.

Read up and take note:

[www.lafcpug.org]

[www.videouniversity.com]


Point 3

They as an employer should have company insurance and cover third party contractors working in their premises as a matter of course, the same way they need liability insurance for any client on their premises.

Asking you to cover your own insurance cost for them (especially under their roof) is unfair and unreasonable.

HOWEVER!!! If it is your premises then it is you who should have insurance to cover them at your place of work.

If you have clients come to your house/edit suite to work you should have insurance anyway in case they get hurt whilst working with you.

If these clauses still seem unfair tell them you are not prepared to sign the contract unless they take out those 3 or alter the first two points to reflect that they cannot sue you for breach of contract if THEY themselves ask you to knowingly put in copyrighted material without the permission from the copyright holder and you refuse to put it in to the edit!



For instant answers to more than one hundred common FCP questions, check out the LAFCPUG FAQ Wiki here : [www.lafcpug.org]

One of my contracts requires me to have insurance for legal liability, product liability and pollution liability(!) Whatever, they pay me 50 times the cost of the insurance, and it's such a behemoth company that the bean counters can't really figure out the difference between a company that supplies raw materials and one that supplies video services.

There were things I got deleted from the contract though, and it wasn't hard. I just said I wanted them removed, and after some discussion, they did.

I'm guessing it's a standard contract that someone has crossed out a couple of things in. You nee to make it work for you.

BTW - yes, I am liable for content, but this means I'm not letting anything go in there unless I;m sure of it, and I would use my contract to stop anything I don't agree with. ie - 'Well, under my contract I'm liable for this, and as far as I am concerned, that's slander, so I can't allow it.

I don't want to get to off topic, but as many small producers move to decentralize creative processes off their premises - especially here in California because of the tax situation vis-a-vis who is a a W2 employee & who can be 1099'd and the applicable differences in terms of what must be paid to the government when you call someone a "employee" - I'm finding a lot of interesting new issues from the Producers' side of the equation. Contracts specifying how creative materials will be delivered & gathered back to the owner (Producers), insurance stipulations such as those mentioned above, and all sorts of audit schemes for making sure shot material is not copied off company drives, etc. Lots of this kind of new stuff coming down the pike in this regard. So none of the original post actually surprises me. It's getting to be a new day.

Reid C