cease and desist...from a competitor

Grinner, I cant see how the psychic has a reason to send a c&d. 2 shows cant work on the subject? Look at all those crappy 'Judge' shows that air all day- they would be suing the crap out of each other since they all cover the same stuff. Best o luck
 
Yeah, I think Mikey is right here. This is my understanding of the matter. It's not the Hotel owner that sent a C&D order, but instead another production company. The problem I see here is that for some reason the other company thinks they have an exclusive right to filming at this hotel and the subject matter there. Except that they really can't. I've seen plenty of shows that film at the same location about the same subject manner. I mean, think of places around the world that shooting there would all have the same subject manner. Travel shows are a great example. Heck, look at the medical shows that started after ER was successful!

I'd tell the other company to shove it. Ghost shows are a dime a dozen-especially at certain places that are "haunted." Unless they can prove that you stole a unique idea or dialog, then they don't have an exclusive right to it. If that were the case, then there would only be about two shows on HGTV, DIY, or Food network each since each one of those networks have shows that are VERY similar.

Matthew
 
grinner said:
All this would matter if this footage were to be aired. As I stated to him and here, it's a pilot. It's the demo that will sell the series...at which time we will start to shoot the series that will air.
Had I just stolled through with my miniDV camera like the rest of the people he charges to walk though there, I would not have heard from him. When he saw production value, he saw dollar signs and changed in an instant.
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Dude, do your thing. I had a guy call me about suing over some photos a person took for me and they wanted $500 a photo. (We didn't have any agreement). The photographer was like "I like to know where my photos are ending up." As if they were photos of her or something. She acted all shocked they were being used for publicity. (This was all because of a bad situation they got in with me, they thought they could get over).

I was like "Hm, really, I bought the film for the camera. Hm, what else, let me look at all these emails about how you'll be following the whole project and you were happy to be apart of it. As well as all the other info that clearly states you were aware of our intentions.

People threaten BS lawsuits all the time. If you push back just a little, you can find out whose serious and who isn't. We took the photos down anyway as they became obsolete the day I bought my 6 megapixel Kodak and we moved on to a new project. One of the photos on my DVD cover was taken with that camera and no one knows it. (I guess you guys do now).

-Nate
 
Nathyn said:
Dude, do your thing. I had a guy call me about suing over some photos a person took for me and they wanted $500 a photo. (We didn't have any agreement). The photographer was like "I like to know where my photos are ending up." As if they were photos of her or something. She acted all shocked they were being used for publicity. (This was all because of a bad situation they got in with me, they thought they could get over).

I was like "Hm, really, I bought the film for the camera. Hm, what else, let me look at all these emails about how you'll be following the whole project and you were happy to be apart of it. As well as all the other info that clearly states you were aware of our intentions.

People threaten BS lawsuits all the time. If you push back just a little, you can find out whose serious and who isn't. We took the photos down anyway as they became obsolete the day I bought my 6 megapixel Kodak and we moved on to a new project. One of the photos on my DVD cover was taken with that camera and no one knows it. (I guess you guys do now).

-Nate
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Dude, you were so like totally wrong about ownership of the photos. The creator of a copyrightable work such as a photograph owns the copyright as soon as the work is fixed in tangible form. If you hire a photographer and pay her a fee to shoot pictures for you SHE owns the pictures and retains absolute control over where they can or cannot be use, not you, even though you're paying for the film, lab, travel, and whatever. What you own is a right of first refusal, if anything. The reason you don't own them is you said you didn't have a written agreement. For you to have owned the pictures and been freely able to use them where you wanted, since she was not a regular employee of yours under the IRS definitions of "employee", according to the copyright laws you MUST have a prior agreement IN WRITING and the agreement MUST use the EXACT words "work-for-hire" to describe the nature of the business relationship. If it's not a work for hire, you need a written contract that spells out what rights paying her fee has licensed to you to use the pictures she shot for what purpose, in what geographic area, and for what period of time. Without one of those written instruments, you're just plain SOL if she refuses you permission to use the pictures for a particular purpose since she, not you, owns them.
 
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Good info Steve.

I'm always amused when people think they can use emails as legal evidence. Yeah, if you can go to AOL or Yahoo or whoever your email client is and subpoena copies of the server files, then maybe you can use them. But just printouts? Heck, I can fabricate an authentic looking printout of an 'email' that will say whatever I want it to. If I were a judge, I wouldn't buy it for a second.
 
Actually, just because you hired someone to shoot something, doesn't automatically make it theirs. If you gave them a video camera to use and bought the tapes, a court would probably rule in favor of the person paying instead of the person shooting. Now if you hired someone and they used their own camera and tape, unless you had a contract with work-for-hire, then the court would probably not rule in your favor (and has done so many times.)

Matthew
 
Macville said:
Actually, just because you hired someone to shoot something, doesn't automatically make it theirs. If you gave them a video camera to use and bought the tapes, a court would probably rule in favor of the person paying instead of the person shooting. ....
Matthew
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You might think so but you'd usually be wrong. Copyright goes to the creator of the work. In the case of an employee acting within the scope of their regular duties, like a staff cameraman at a TV station, for example, the employer is legally the creator. But in the case of a freelancer or contractor that's not the case. Who provides the camera and pays for the film or tape isn't a factor - it's who executes the creative process and renders their ideas into the final tangible work.
 
Anytime I have created anything under the umbrella of a company, they have ownership of it.
If you staff at a big place, it's most likely in your contract.
I created a show called Beyond Backstage when I worked for SFX Entertainment and sent it off to one of our best clients. She dug it and went with it but because I sent it unsolicited, I had no recourse. When the company I was staffing for revamped it, they saw it cheaper to do it themselves and squeeze me out.
The client I sent it to, Sharon Osbourne, did indeed pitch and sell a clever reality show from the idea to MTV and SFX went on to do the same, finding placement on VH-1. Both shows raked in millions and ran for several seasons.
all I got was stupid t-shirt saying I was dumb enough to show initiative as a staffer.
Case in point...the check writer owns all. The creator only does if the time to protect it is taken.
 
grinner said:
Anytime I have created anything under the umbrella of a company, they have ownership of it.
If you staff at a big place, it's most likely in your contract.
I created a show called Beyond Backstage when I worked for SFX Entertainment and sent it off to one of our best clients. She dug it and went with it but because I sent it unsolicited, I had no recourse. When the company I was staffing for revamped it, they saw it cheaper to do it themselves and squeeze me out.
The client I sent it to, Sharon Osbourne, did indeed pitch and sell a clever reality show from the idea to MTV and SFX went on to do the same, finding placement on VH-1. Both shows raked in millions and ran for several seasons.
all I got was stupid t-shirt saying I was dumb enough to show initiative as a staffer.
Case in point...the check writer owns all. The creator only does if the time to protect it is taken.
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You used the word "staffer." Were you an actual employee of the company, getting a regular paycheque from them, or were you a freelancer on-board for just that project? If you were an employee acting within the scope of your job description, your employer owns it.

Freelance creatives (directors, composers, etc) hired for a project by a production company will usually find there's that explicit "work-for-hire" provision in their contract making their work the property of the client company.

Remember too, that an idea is not copyrightable, only a specific tangible expression of the idea. Your idea for the show is fair game. If you produce the pilot on your own, you own the copyright on that specific episode but only that episode, not the idea on which it's based nor future episodes based on the same concept (unless you also produce them too).
 
yeah, I was on staff.
twas all in the contract but people forget this when initiative opportunities arrise in the work place. Get a manager dangling carrots in front of ya and it's easy to forget things like they will steal it and send ya packin if the idea is too good.
Prolly why I don't staff anymore. That and I just can't afford it.
Staff gigs are good for experience but they are great things to outgrow. I've never gone to work for a place thinking I'd be there 2 years from then. They have all been steps on the ole ladder.
 
Getting back to the nuisance lawsuit: There's an easy way to deal with these. See the "Justice of the Peace" (or whatever they're called in your jurisdiction) and explain the complaint. If it's obviously a nuisance suit they'll throw it out right there and it won't cost you anything.

Most people are BSing about suing though, because no lawyer will take on a nuisance suit if they're going to lose (unless they're paid upfront a lot of money).
 
Steve House said:
Dude, you were so like totally wrong about ownership of the photos. The creator of a copyrightable work such as a photograph owns the copyright as soon as the work is fixed in tangible form. If you hire a photographer and pay her a fee to shoot pictures for you SHE owns the pictures and retains absolute control over where they can or cannot be use, not you, even though you're paying for the film, lab, travel, and whatever. What you own is a right of first refusal, if anything. The reason you don't own them is you said you didn't have a written agreement. For you to have owned the pictures and been freely able to use them where you wanted, since she was not a regular employee of yours under the IRS definitions of "employee", according to the copyright laws you MUST have a prior agreement IN WRITING and the agreement MUST use the EXACT words "work-for-hire" to describe the nature of the business relationship. If it's not a work for hire, you need a written contract that spells out what rights paying her fee has licensed to you to use the pictures she shot for what purpose, in what geographic area, and for what period of time. Without one of those written instruments, you're just plain SOL if she refuses you permission to use the pictures for a particular purpose since she, not you, owns them.
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This is true, you either need the person to be an employee, then it is automatically your work if done on the clock while you are paying the person, or you need it to be work-for-hire and spelled out contractually. That's why all of my contractors sign agreements that indicate they are doing work-for-hire, and that all footage shot in the case of camera operators or DPs, etc., belongs to the production company and is my property. These rights have to be spelled out in advance.
 
Here's the thing, most "freelancers" are really employees-or at least supposed to be. Even if it's a 1 or 2 day shoot, the IRS treats them as an employee since they (normally) are told what, when, and where to do their job. Now, does everyone do that for freelancers? (Pay the employers share of FICA) No. But it is a tricky thing to decipher when you look at the law. And just because it seems like it's clear cut, when it gets into court, clear cut doesn't mean jack.

Matthew
 
No need to make it complicated. If someone hires you to make something and they pay for it it is theirs. If you are an employee, you are creating for your employer. Id you signed a contract stating anything you create while under their umbrella, it's quite the no brainer and most do sign something like this when they go to work for someone on staff. It aint a non compete... it's ownership of content created. This was the case when I created Beyond Backstage. It's not something that was ever mine.
 
Macville said:
Here's the thing, most "freelancers" are really employees-or at least supposed to be. Even if it's a 1 or 2 day shoot, the IRS treats them as an employee since they (normally) are told what, when, and where to do their job. Now, does everyone do that for freelancers? (Pay the employers share of FICA) No. But it is a tricky thing to decipher when you look at the law. And just because it seems like it's clear cut, when it gets into court, clear cut doesn't mean jack.

Matthew
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I'm sorry to tell you this, but freelancers and contractors ARE NOT always employees or even usually employees. A freelance camera operator or sound mixer hired by a feature production company, yes. Neither of them exercise creative control over the final production. But if you are an event shooter and have been hired to make a video about a corporate event or are a wedding shooter covering a wedding, you are a vendor of a professional service, in the business of selling said services at retail to the general public. Your product is the completed video program that you have created. You charge a professional fee and collect sales and services taxes on your gross sales as a retail merchant if your jurisdiction requires it. You are no more an employee of your client than is the plumber who comes to fix your pipes or the doctor who gives you your physical your employee because you're paying his fee.

You have to decide - are you a technician who points a camera where he's told and pushes the button on command, turning over the raw footage to the producer at the end of the day, or are you a creative professional who is responsible for the creative content of a video program? You can't have it both ways.
 
grinner said:
No need to make it complicated. If someone hires you to make something and they pay for it it is theirs. If you are an employee, you are creating for your employer. Id you signed a contract stating anything you create while under their umbrella, it's quite the no brainer and most do sign something like this when they go to work for someone on staff. It aint a non compete... it's ownership of content created. This was the case when I created Beyond Backstage. It's not something that was ever mine.
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Sorry to contradict but that's not really true - the act of being paid does not automatically make the intellectual property that's been created the property of the person paying you. If you are actually an employee, then yes. But the act of receiving money in exchange for a service rendered doesn't in itself make you an employee. Your doctor and your plumber are not your employees yet you pay them for their services. Freelancers may or may not be employees, depending on the nature of their duties and the structure of the relationship.
 
Always amazes how many clueless bozos are running around with cameras who pretend to know whats up. Its one reason I shy away from these forums 95% of the time, and its another reason I am VERY careful and ask 100 questions when Im approached by strangers doing these low/no budgets "projects." 99% of which I turn down no matter what.

Thank you Steve for attempting to instill some very real facts into the otherwise baseless drivel.
 
Steve House said:
The reason you don't own them is you said you didn't have a written agreement. For you to have owned the pictures and been freely able to use them where you wanted, since she was not a regular employee of yours under the IRS definitions of "employee", according to the copyright laws you MUST have a prior agreement IN WRITING and the agreement MUST use the EXACT words "work-for-hire" to describe the nature of the business relationship.
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While that's all well and good they understood agreement was we would help this person with a specific project in a specific way in return for a person taking photos. I also threw in two free rolls of film just to be nice. There was no written agreement but this person and the person who called me knew they were taking photos for publicity, end of story. They used the photos on their site and emailed me copies for use because they developed the photos. (THEY EMAILED ME) I had emails stating this and that the person knew how the photos were being used. Sorry but no dice. I told them to sue. The reply I got was "Awe, man I didn't know you had paper on this thing. No hard feelings. I'm just protecting blah blah blah."

My response was a lot nicer that my friend's (who has also been screwed by shady people in the industry) which was "If he calls back let him know if I see him on the street I'mma %&@# him up." While I preferred this response I took a calmer approach. I extended myself above and beyond the call of being "helpful" and they screwed me. I got my info together, called back, put it in his face. Keep in mind this is the same conversation where this guy had the nerve to yell "I have major connections and you'll never work in this town again!" And told this a$$hole this is Chicago, not LA and there's people here who will indeed "%&@# you up" for acting this way. I advised him to seek another way of handling business matters before someone who is not as calm beats his monkey ass for try to extort money from them. No matter how many lawyers you have or claim to have, them and the cops all have to get to you before the @$$ beating. But that's just my advice. Treat people right because you don't know might simply decide to beat the black off you (or the white in this person's case).

Steve House said:
If it's not a work for hire, you need a written contract that spells out what rights paying her fee has licensed to you to use the pictures she shot for what purpose, in what geographic area, and for what period of time. Without one of those written instruments, you're just plain SOL if she refuses you permission to use the pictures for a particular purpose since she, not you, owns them.
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Again, no dice. I played my hand, she lost. But to be honest, now, I rarely do anything without breaking down the "Work for hire" status as you mentioned. I did indeed send a lengthy email to her and all involved spelling out the legal ramifications of her actions. I took entertainment law class and I've worked as a clerk for several firms. I had friends and enough knowledge to quash this.

Ironically I worked on a project and this person was involved with. Keep in mind the producer on this was one of our producers on "Wages of Sin". A well to do lady with some decent cash. I had a chance to have the producer say, "Nathyn Masters says I shouldn't work with you because you're shady." but nope. I did enjoy watching the person squirm when they walked in and saw I was the cameraman and director. But I was professional and held no grudge.

It's true you meet the same people whether you're going up or down. In Chicago it's a double whammy because the industry is smaller here. Do your job, shut your trap and don't mess with people. I had a friend who screwed up a shoot (and it wasn't even all his fault) but the cameraman on that shoot was on paying shoot, he got the director position. When my friend's name came up they said to him, "No, we can't hire you. I like you but as a person but I just can't."

On the flipside I was recommended for a gig one time for a doc without even knowing who recommended me. The name sounded familiar but I have no idea who the person was. To this day I don't know the person. But over all I netted some nice money over four days. This ain't play time. It's serious business when you can go from low and non-paying gigs to a nice paying gig on nothing but a random recommendation. Not the time to be a prick to people (if there ever is a specific time to be).

-Nate
 
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on a happy note, looks like their positive mojo helped.
TruTV just called. They watrched the sizzle and dug it enough to set up a conference call to kick around some details in the morning.
fingers crossed, boys...
 
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