OT: Implied Rights on Infomercials - Usage

If a production house produces a infomercial for a client named say, ABC Inc. The purpose of the spot is to Broadcast on say, HortonNetworks. The spot does actually air and then the client wants to air it in another market.

Can the producer restrict that client from using that spot if that restriction is not expressed in the contract that ACB Inc. signed?

Who has ultimate rights to the spot?

""" What you do with what you have, is more important than what you could do, with what you don't have."

> > > Knowledge + Action = Wisdom - J. Corbett 1992 """"

You are work for hire and as such if you are paid to make a programme of whatever type then they own the copyright unless:

A. you don't get paid
B. they break the contract

If you as producer fail to obtain the relevant rights to any material in the programme then you are at fault - this includes release forms/contracts for actors and general public and any footage, photographic or graphic material you use.



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

You need to consult a lawyer.



www.strypesinpost.com

Not a lawyer, but if any limitation to the rights and usage aren't spelled out in the production contract, you're basically done for. Once they pay you and you've handed it over without making any written provisions, they can keep using it forever and you're stuck, probably with third party claims too (like talent and music) if you didn't arrange for unlimited usage to begin with.

Did they give you anything in writing before production began stating terms of usage (where, when, what media, for how long)? Do you refer to this in your production contract or if there is no proper contract then at the very latest on your invoice?

You were hired to produce a product...an infomercial. That company then takes that informercial and does whatever they damn well please with it. Air it...not air it. Air it on several networks. You don't get any say in what they do with it. You were hired to make it...period.

Unless you have something in the contract BEFOREHAND that says that you get back end or shares of whatever.


www.shanerosseditor.com

Listen to THE EDIT BAY Podcast on iTunes
[itunes.apple.com]

Thanks,

Thats what i thought.

I got this *** EDITED BY MODERATOR *** editor who was trying to stop me from reediting a spot he did for a company. The spot was a joke on The Ellen Show last week. Now he thinks he has struck gold and wants to limit the company from allowing this reedit. He will not produce a document that shows he has this limitation on production and the contract and invoice that the client has, does not state any limitation or liberties for the footage or finished product.

He says he has the original reels but wont give them up. This makes a big difference in the cost of my services. re-edit would be less costly with the footage but without it, it becomes a full production.

In all of my contracts i have a usage and rights section in my terms and condition that only restricts the client to having to get our permission to allow for a reedit. Otherwise they can do what they want with it.

The company wants to apply legal pressure to retrieve the reels but had ask me was there any understood/implied rights in these cases.
My saying is that," If you doesn't say it then anyone can play it."

Now JC, lets please not descend into profanity on the forum by calling the Editor in question a "Shower container". Especially as he may be within his rights.

Copyright is something we all have to deal with so if you are under US law you can read the following PDF:

Works Made for Hire Under the 1976 Copyright Act

[www.copyright.gov]

Although this is quite an interesting thread; to reiterate what Gerrard said...

If you have any questions that may lead to legal proceedings regarding copyright?either call a lawyer or law firm who specialise in copyright law or contact the United States Copyright Office. [www.copyright.gov]


Because the editor is contesting that there is no written agreement that the spot was a "Work made for hire" then he may well have the right to the work.

Quote
Excerpt from "Works Made for Hire Under the 1976 Copyright Act" from the US Copyright Office

If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met:

(1) it comes within one of the nine categories of works listed in part 2 of the definition and

(2) there is a written agreement between the parties specifying that the work is a work made for hire.

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

Quote
ben
by calling the Editor in question a "Shower container"

That is funny. I think that the next time i get ready to drop the D-word i will replace it with SHOWER CONTAINER. I think its stronger. hahahahaha

Anyway. They are gonna talk to the lawyer on monday to see what is what.

I have seen the contract and i think he has nothing to restrict that.

""" What you do with what you have, is more important than what you could do, with what you don't have."

> > > Knowledge + Action = Wisdom - J. Corbett 1992 """"

I recently did a job for a shower container producer who has not paid me. This was for some infomercials which are currently running and some stuff that runs on his website.

Aside from the fact that my partner and I are going to take him to shower container court and sue the shower out of him, do you reckon I could prevent said container from screening these wretched ads by court injunction? That would be fun and make the whole thing worth while.

I realize that any reply to this by forum members cannot be construed as proper legal advice and should simply be interpreted as idle chat between disgruntled bitter sedentary blobs of chilled gravy.

Harry.

> Aside from the fact that my partner and I are going to take him to shower container court
> and sue the shower out of him, do you reckon I could prevent said container from screening
> these wretched ads by court injunction?

I'm pretty sure you can. Even before you win the court case, until the case is resolved, the injunction should hold.

Next time, you might want to consider putting a watermark onto the digital screeners you give him.


www.derekmok.com

Technically you can file for an immediate injunction to prevent broadcast of the project on the grounds that you have not been paid, therefore, you still own copyright to your work. The work in question then cannot be aired until the outstanding issues have been settled. However my word does not constitute legal advice and you should consult a lawyer on this.

There are lots of shower container companies where I am, and we have always been trying to get those shower containers out into the open.



www.strypesinpost.com

As I understand it; because he breached any "work made for hire" contract by not paying, the edit (and anything else originated by you) essentially is not his property?and as such is breaching the automatic copyright afforded all creatives under the Berne Convention for the Protection of Literary and Artistic Works.

Talk to the lawyers, but until the "Feminine Washkit" pays including damages/interest and legal fees then he is not entitled to use the work without your express written permission.

You can always get your lawyer to send a cease and desist letter, or pay-up (including legal fees out of court settlement) letter which might work instead of chasing him through the courts.



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

Harry, did you have a contract in place before doing the work?

Did the contract stipulate that the final or full payment was due when the finished master was handed over?

Are they operating under an incorporated business structure of some kind?
Do they have a DBA?

A lot of people get burned the moment you hand over the finished tape and there is something like a 30/45/60/90 day "net" payment deal going on. You are put in a position where you have to trust someone to honor their end of the bargain after you have finished your work in good faith. A lot of post production companies will insist on full payment before releasing masters.

Suing them will cost you time and money. The people you want to sue know that. They will take a chance that you don't have the stomach
for it.

If this is a direct response "infomercial", then they will have already gotten their testing in before you can get the case before a judge
to have some kind of injunction placed against any further airings. They will know if they have a successful product and can then (maybe) pay you, or just shut their company down and walk away writing it off as a loss if the infomercial fails. And they will know within a
few airings whether it is a failure or not.

It's likely that they have set their own company up in such a way as to shield their personal assets from the companies' financial obligations and thus already have a plan in place to shut it down if the product doesn't sell.

Written contracts are important. Sure, you can take them to court but without the contract you are not going to be getting any kind
of injunction to prevent airing. The court is going to force you to go through a time consuming process to prove your story.

Even if you successfully sue and win an award there is no guarantee you will ever see any money. And even if you do get paid it may take years to get it.

So the moral of the story is... Contracts, contracts, contracts.
AND
Don't stick your neck too far out without knowing the track record of who you are working with.

ASK A LAWYER. This is no place for legal chatter. Ask a specialist. Don't trust me or anyone else with legal advice.

When life gives you dilemmas...make dilemmanade.

Thanks, everyone, for the ideas. The idea of tossing in the Berne Convention is hilarious and I wish I'd thought of that myself.

We'll nail this guy.

But it is also my experience that it is all very well to get a favorable judgment in County Court or Small Claims Court, but that does not in any way guarantee "collection" which has for me, in the past, been impossible since they cover their tracks in a multitude of legal machinations that make it unrealistically expensive to pursue.

Many thanks to one and all for the sage pointers.

If I ever see half a buck I will post the triumphal news on this board.

Harry.

I dont know if this will help anyone but i have a few really nice clauses somebody might use in a contract. I have had my terms and conditions go through 4 lawyers in 5 years. It is now written in 8pt. use ta' be 12pt and 2/3rds of a page. These are paraphrased... see a lawyer for the bloated version thats best for you.

Usage & Material Rights:

We retain the ownership of all media associated to the execution of the contract but the client can request a water marked copy of the masters. We also retain the right to exhibit or re-edit any media created in the execution of this contract.

Client has full rights to the exhibition the edited product within their region which is defined by the contract but must obtain a written consent form to air on national shows, outside of the defined region in the contract or to allow for a re-edit from another media company.

There is a Fee associated with the re-edit that is not to exceed 3x the dollar amount of the original contract.
There is a Fee for airing the production on a national show. This National Airing Fee is completely discretional and is decided by my company.

All Deposits are void once work has begun (there is a section in there defining 'work').
All deposits must be paid in order for work to begin and all balances must be paid in order to receive the produced product, the rights to air it or the media associated.

We retain ALL rights to the material, drafts, scripts, storyboards, footage, audio, images, edited versions and all other media produced in the execution of the contract, if the client does not pay as defined in the contract. The client can not present, Broadcast or exhibit any media or material produced in the execution of this contract in any form including but not limited to computers, internet, mobile devices, media players, networks, and all other ways that permit the project and any of its parts to be seen or heard in anyway.


Also, I don't know if you guys do this but.....

I have a signature for the owner or authorized rep. & a signature for the person responsible for payment. This is often the same person.

WHY???? Cause even if they are incorporated I can still sue the individual who signed the contract. Done it twice in since i have had Terms & Conditions.

""" What you do with what you have, is more important than what you could do, with what you don't have."

> > > Knowledge + Action = Wisdom - J. Corbett 1992 """"

"We retain ALL rights to the material, drafts, scripts, storyboards, footage, audio, images, edited versions and all other media produced in the execution of the contract,"

Wow. I'd never sign that contract. i'd employ a work for hire guy in a heartbeat over someone who was going to control my use of a product I ordered and paid for, for life. I'd also never ask someone to sign that myself.

If you use your talent as a business you will always have a clear agreement. Employees work for hire.
That is what makes the difference in price. Corporate clients understand that you get what you pay for. If you are not clear you will do a lot of work for free.

God Bless,

Douglas Villalba
director/cinematographer/editor
Miami, Florida

[www.DouglasVillalba.info]
[www.youtube.com]
[vimeo.com]

Jude Cotter Wrote:
-------------------------------------------------------
> "We retain ALL rights to the material, drafts,
> scripts, storyboards, footage, audio, images,
> edited versions and all other media produced in
> the execution of the contract,"
>
> Wow. I'd never sign that contract. i'd employ a
> work for hire guy in a heartbeat over someone who
> was going to control my use of a product I ordered
> and paid for, for life. I'd also never ask someone
> to sign that myself.

You missed the second clause of the sentence, which makes a huge difference:

" if the client does not pay as defined in the contract."

I, personally, would put the "if clause" first...



-Dave