ASK & DISCUSS INDEX

7 years, 2 months ago - Paddy Robinson-Griffin

Gosh what a mess, and as you now appreciate, this is why we get things clear with written agreements before starting!

I would suggest that if you weren't paid, you were not working for hire, and you can/should look after yourself and sponsors. Perhaps you can offer the guy a limited, non-exclusive license for the footage (eg a requirement that it carries your watermark or at least is credited to you) you took. Then use that to cross-license the headcam footage, so you can use it. Agree a cross-license and terms, both sign it.

Then if either of you sell anything derived from any of the footage, you go 50/50 on that money. Or maybe 60/40 to whoever made the sale so they get a premium for doing the selling work. Get that agreed and in writing, though, eh? ;-)

In reality probably neither of you will make any money, so you can take this as a cheap lesson in getting things agreed and written down ahead of time. You don't need a professional lawyer just now, it is enough to create a PLAIN ENGLISH (avoid legalese!) document that you can both sign as an agreement. Try to consider in peacetime how you'll behave in war, and give yourself the option to escalate to a mutually trusted third party ahead of the courts.

7 years, 2 months ago - Josh Horwood

Hi Paddy,

Thank you for the response. Yes, anything like this in the future will most certainly have written agreements!

Offering a limited, non exclusive license sounds like a good idea. I didn't realise a 'cross-licence' was a thing but sounds good to be able to use the head cam footage.

If we couldn't come to an agreement and I ended up releasing the film regardless what do you think the repercussions would be?

7 years, 2 months ago - Paddy Robinson-Griffin

Could be nothing, could be significant, depends too much on good faith, and good faith stumbles when money is involved. That's why you should regularise things ASAP, I suggest, and licensing everything to one another is a really cheap and simple way to do that :)

7 years, 2 months ago - John Lubran

Wise advice from Paddy.

Once again the 'Devil is in the detail'

As a basic principle , but only on the face of it we know so far, the material filmed is Josh's. He filmed it without payment or enforceable agreement. He provided the equipment including the GoPros loaned from his own third party. The pilots agreed to have the GoPro fitted to them without conditions; that footage also belongs to Josh. The film is a factual documentary, a record of true events. The parties concerned knew and actively encouraged and assisted in the process.

So the risks. In the event of litigation can it be said that there were verbal agreements made either directly or by construction with which everyone was or ought to have ben clear?

Any edited presentation must be safe from assertions of misrepresentation resulting in damage. Conversely, damage resulting from fact is not protected; truth is fair use in true context. Most distributors require releases for anyone 'formally' interviewed, especially where it's edited or used synched to other images. Pictures with synch sound and 'bites' of synch sound vox pops are usually safe where the camera was openly present.

Best to cut a beneficial deal though without too much proscriptive specification that allows one to exploit the material by default.

7 years, 2 months ago - Josh Horwood

Hi John,

Thank you for this response, it is important to note that the GoPro loan was organised by John. It was also agreed between them that GoPro would have all of the footage shot on their cameras to use as they wish (they have it all now). I managed the GoPros and did all DIT with them. One GoPro was mine. I don't think there is a way to prove what footage was shot on which GoPro.

I feel that may change things?

There were no clear agreements on how the film would be used exactly or who owned it, only assertions.

The final edited presentation will be accurate to the truth.

Yesterday John said: 'the movie is considered to be 'his company's' production. You are on board with that right?'.....'Will get a contract to you ASAP'

I said a written agreement would be great and we should get that sorted before we move forward.

I got release forms from each pilot at the end of the trip which I think was a good move.

7 years, 2 months ago - John Lubran

Hmm. Was it clear from the outset that John's company owned the prospective film outright ? If not the notion that he will send you a contract without discussing the terms first might be presumptious. Don't sign anything unless you're sure it works for you too.

7 years, 2 months ago - Paddy Robinson-Griffin

Yes, I'd maintain that this was a collaboration if Josh was unpaid

7 years, 2 months ago - Marlom Tander

I think currently everything belongs to Josh. Gopro excepted as that does seem to have been clear agreement between all parties to share. It's a safe bet that John can't afford asking a court to decide otherwise.

John sounds like everyones nightmare business partner, a member of the "I say it's this so it is" school of management.

He's never going to respect anything even if it is written down. Do a cross license but where you each keep any revenue you generate. That way you get the rights you want and the financial odds are in your favour (you are more likely to make a sale than see anything of any sale he makes).

How John gets his edit is his problem. When he discovers how expensive it is he might even find some cash money for you :-)

7 years, 2 months ago - Josh Horwood

So interestingly I have received a rough 'agreement' from John which is asking for rather a lot, and certainly was not made clear before this project started.

Let me know what you think:

"I've typed up some points that were always made clear from day one.

Contract for collaborators
XXXXX and Josh Horwood.

Josh participated in the filming and post production of project XXXXXX, an XXXJohns companyXXX production concerning an attempted crossing of the pyrnees, by foot and paraglider. Staring XXXX, XXXXX, and XXXXX. The outcome will be a 20-35min adventure HD video intended for online publication.

Intellectual property
1. GoPro content is XXXJohns Company'sXXX. Josh needs written permission from XXX to reuse.
2. DSLR footage + drone footage is yours. Can't be used in negative marketing efforts. You must provide a copy of all footage and permission to use in the event the finished HD movie is not delivered by 15th June. Any usage of video including team or sounds from the team talking needs written permission.
3. Movie is XXXXJohns CompaniesXX. Josh can use in portfolio, but movie is only to be exclusively distributed through XXXX channels. If XXXXX does not provide the movie for free, Josh may publish to his own channels.


Remuneration
Josh agreed to film the project, in exchange for his travel & food expenses paid as a portfolio building effort. Josh got to keep his sponsored equipment by XXXX, XXXX, XXX, and XXXX as payment for his post production work, agreeing to produce the film.

Revenue share agreement: Josh will receive 30% revenue generated by the sponsored spots of XXXXX video. Josh, agrees that this collaboration does not grant him any intellectual property rights to XXXJohns companyXXXX, nor any revenue share entitlement to XXXXX future revenue. At present XXXXX does not have a business model nor any revenue. It is a free website showcasing an outdoor adventure, using interactive digital media.

Both parties can attend film festivals and submit the video for selection."

7 years, 2 months ago - Marlom Tander

Josh, you don't seem to realise that you pretty much hold all the cards. Without your footage John has nothing, and he can't afford to sue. You could pretty much down tools and get on with your life.

All you need to do is decide if you want a fight. And deciding no, and moving on is a valid decision.

If you want to fight....Write your own suggested terms and send it back to him.

Dear John,

Our understanding of what we agreed seem to differ. Here are what I understood our agreement to be :-

You would cover the costs of the trip and provide everything required to make it happen outside the filming. Only the GoPros were provided by you, and it was understood that that content was to be cross licenced to all parties. In return I would use my valuable skills, judgement, experience and kit to capture footage and then create a 20-35min adventure movie designed to showcase your company.

I would use the same edit (or a different one) to showcase my skills to the world and possibly film competitions.

My footage was and is my copyright. Furthermore participation has already implied agreement. This is a well established point of law. However, I promise not to do a hatchet job. I am frankly upset that you even consider that a possibility.

We didn't really discuss what might happen to any revenue, but I think a simple 50:50 split on the gross would work best.

The 15th of June - No such deadline was ever agreed. Nor was it agreed that you would have copies of raw.

I am happy to agree that I do not have any rights to your company.

I suggest we meet and thrash out a sensible arrangement which results in us both being able to use the material as per our interests and then draw up terms."

Your aim - to get all the rights you want, with freedom to use as you wish, (including revenue - even as stock footage rather than edited epic).. Your sacrificial pawns - you let him beat you down on revenue % from his sales (to zero if you like) and let him have footage and freedom to use to promote his company.

FWIW I do think it's reasonable that he gets first dibs on distribution - he did make the trip happen after all - , and if that disqualifies you from some competitions, ce la vie. But might be worth advising John that it might be in his interests to hold fire where a name prize is a serious prospect.


The ideal negotiation is one where both parties walk away convinced that they won.


Good luck.

7 years, 2 months ago - Paddy Robinson-Griffin

I think Marlom's comments are rather astute here. Decide to fight or take the lesson and walk away (ideally without signing!). Is there really any commercial value? I suspect not, it's easy to overestimate the cash value of these things, and if the sales value is maybe £500 then after a 50/50 split, you'd barely find it worth the stress and invoicing overhead.

Offline, I know you're a busy guy, so even if this is a write-off, that might still be the best financial course of action for you. Principles are all well and good, but can come at a cost. If you walk away, you won't be the first or last person to make that choice!