Ethical Question

DigitalBard

DigitalBard

Well-known member
I have an ethical question... Five years ago I shot a feature for someone. It was my first, so I signed a deferred contract where I would get paid AFTER the movie sold (as did everyone on the film). I did, however, get paid expenses during the 18 days of shooting and I got to keep some gear we bought for the film.

The producer never sold the film, it bombed in the two festivals he submitted it to and he walked away from it after that.

I never got a copy of the final film, but I have all of the raw footage and audio. He's left the film industry altogether and deleted his Facebook and email accounts, so it's impossible to reach him.

I'm thinking about either doing my own cut of the film and releasing it myself... Or, just releasing all of it into the wild and let others do with it as they please. According to a lawyer I consulted, the producer is in breach of contract as he never even tried to sell the film to pay me (and everyone else), so the film is as much mine as it is his. Especially since it was all shot on my equipment.

Now it's more of an ethical question...

And I should mention that all of the cast and crew that I am still in touch with think I should do my own cut and release it.

Thoughts?
 
wow, legal stuff aside, IS IT WORTH IT? What i mean is, do you think theres a good movie in there and that however it was cut previously, it was just not done "correctly" and that your cut could breathe new life into it? or is it possible it would bomb anywhere no matter who cut it due to issues of script/story, acting, etc.? Genuinely curious.
 
Huge legal issues...... for a start ...who owns the script? Wouldn't go near it unless you can get a signed release from all the stake holders.
 
The writer of the script passed away in the late 80's. The producer owns it. In any case, I'm confident in my lawyer's advice.

And yes, there is a good movie in there, I think. I've done something of a "rough cut" and I like it. The problem with the version the original producer created is that he didn't follow the timeline of the script in his edit. He moved some stuff around that opened up inconsistencies in the story and then tried to explain them with V.O. that he wrote himself.

One thing I have to ask myself is if I have the time to do it... It would take me a year to do it part-time as my work schedule has climbed dramatically since the first of the year.

My temptation is to try to find some film students interested in a career as a editor and see if they'd like to take a shot at editing it. Or, just uploading the whole thing to the internet for the whole world to access.
 
to release it through a distributor they'll require you to prove chain of title, which starts with "who owns the screenplay?". if any unions were involved, like SAG, you'll have to start making upfront payments for residuals, pension & health. these change depending on the platform of release (even "free" on the internet is a "video on demand" release). you'll need to hand over copies of music licensing contracts, location agreements, all contracts with cast and crew members. And you'll need to purchase Errors & Omissions insurance.

I'm curious about your lawyer's advice. Never in a million years would i tell someone that just because a movie wasn't distributed the copyright is up for grabs. i would talk to an entertainment attorney that's familiar with this field because I think you're getting bad advice. Releasing a movie you don't own in any form (altered or not) is piracy.
 
...right. Because even if your lawyer's opinion is correct, and the producer is in fact in breach of contract, he (or his affiliates) or the estate of the deceased screenwriter, for that matter, could still take you to court to contest the rights after the fact, which would be a giant headache for you. If you can't find the principles and get them to sign the rights to you, you'll have to guerilla-post it anonymously or just walk away.
 
I can think of a dozen possible problems with it just off the top of my head. If the lawyer you talked to is any good, I have to think you might not quite have understood what he said, because as related, his advice strikes me as pretty bad and super-simplistic. So, I think maybe he didn't say quite what you say he did.
 
DigitalBard said:
I have an ethical question... Five years ago I shot a feature for someone. It was my first, so I signed a deferred contract where I would get paid AFTER the movie sold (as did everyone on the film). I did, however, get paid expenses during the 18 days of shooting and I got to keep some gear we bought for the film.

The producer never sold the film, it bombed in the two festivals he submitted it to and he walked away from it after that.

I never got a copy of the final film, but I have all of the raw footage and audio. He's left the film industry altogether and deleted his Facebook and email accounts, so it's impossible to reach him.

I'm thinking about either doing my own cut of the film and releasing it myself... Or, just releasing all of it into the wild and let others do with it as they please. According to a lawyer I consulted, the producer is in breach of contract as he never even tried to sell the film to pay me (and everyone else), so the film is as much mine as it is his. Especially since it was all shot on my equipment.

Now it's more of an ethical question...

And I should mention that all of the cast and crew that I am still in touch with think I should do my own cut and release it.

Thoughts?
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There are any number of contract issues here. I actually don't know where you got your 'legal' advice. A 'breach' of contract does not then entitle you to ownership of anything, except for the 'photography' aspects, if that was your duty on the film.

You don't own the right to publish the images of the actors involve, as they signed a release with the producer, not you. You don't own the script, as the producer owned the rights to that, etc.

If you went to court, most likely you would get a judgement in some dollar amount, and if the producer had no money that would allow you to somehow access any funds that the producer may have had.

Perhaps as part of a settlement deal in conjunction with a law suit, the producer would assign rights to you, but that would not be 'guaranteed'.

The fact that the producer did show in two fest, is probably enough for a court to determine that he did 'attempt to sell' the production, and there was just no interest... end of story...

My advice is to move on...
 
You do not own the rights to the story.

You do not hold the releases of the on-camera talent, or releases for any locations, music, etc.

In short, you have NO RIGHT to do ANYTHING with that footage, particularly if it has the faces and/or voices of the actors in it. It doesn't matter who is dead or who cannot be contacted.
 
Not a lawyer even though I played one on TV, not actual legal advice, blah blah blah...
I've seen plenty of people take dead projects, old movies, internet videos, etc, and recut them and put them out online without compensation. Most of the time the worst that comes from it is a takedown notice. That doesn't mean it's legal, or even ethical, but it happens. a lot. Worst case you get sued. Best case it prompts the original producer/director to revisit the project and re release it. or try to. Most likely result? You spend a ton of time on this and nobody sees it or it isn't as good as you imagined.
 
Andrius Simutis said:
Not a lawyer even though I played one on TV, not actual legal advice, blah blah blah...
I've seen plenty of people take dead projects, old movies, internet videos, etc, and recut them and put them out online without compensation. Most of the time the worst that comes from it is a takedown notice. That doesn't mean it's legal, or even ethical, but it happens. a lot. Worst case you get sued. Best case it prompts the original producer/director to revisit the project and re release it. or try to. Most likely result? You spend a ton of time on this and nobody sees it or it isn't as good as you imagined.
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Actually, worst case is you get charged with a federal crime for copyright infringement and end up paying a $250,000 fine and spending 5 years in a federal prison. Granted, it's not likely to happen, but it easily could because you are, in fact, committing copyright infringement.

It's really not worth it. And if you care anything at all about your professional reputation in the film industry, you don't do things like this.
 
Maybe it's time to move on...

You don't have any documentation that you own any rights to the script, the footage or releases for the actors & locations. You'll never get a distributor or mainstream buyer to touch it, you'll never get E&O insurance.

BTW, the world is currently awash in low budget films with no distribution. Distributors & other buyers know this. They don't need to spend any extra effort on a flim if they don't have to.

Rather than spend a lot of effort on a film that has already failed in it's previous life, one to which you won't be able to sell to recover costs or make a profit, why not spend a lot of effort on a new film? One where you would have legal title, and might even be better & more sellable.

Whatever you do, best of luck!
 
I would try harder to contact the original producers and get them to sign over the rights.

Another interesting tidbit about rights.... unless the contract you signed specified your services as a work for hire, then you retain authorship rights(in the states at least). But, that still doesn't account for image rights from all actors/everything else already mentioned here.

someone has to know how to contact the original producer, seek them out.
 
A legal minefield. So many rights floating about that you perhaps are not even able to find out about. Not everyone may have the same contract terms. The produce could have agreed very individual contract terms with some of the actors to pursuaded them to take part, and even the music rights could be amazingly complex. How would you even get copies of everyone's contract terms? You could even uncover some below the belt deals you may be better off not knowing about. Realistically the product is his, and if he does not wish to take it further, then without him on board you are completely stuck. You used the word ethically in the title. I don't think you can do this ethically at all.
 
David W. Richardson said:
Actually, worst case is you get charged with a federal crime for copyright infringement and end up paying a $250,000 fine and spending 5 years in a federal prison. Granted, it's not likely to happen, but it easily could because you are, in fact, committing copyright infringement.

It's really not worth it. And if you care anything at all about your professional reputation in the film industry, you don't do things like this.
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Don't get me wrong...I wasn't advocating that the OP should actually do this, just pointing out the typical outcomes should you go down that path. The 5 years in prison and $250,000 fine is unlikely, just as winning an Academy Award with an old flawed project would be. A lawsuit for damages and attorneys fees? Yeah, that could happen and it would be a damn horrible result.
If it was me, I wouldn't worry so much about making a recut for my own amusement that doesn't leave my edit suite, but I wouldn't even consider that it would even be remotely possible to be able to release it commercially. There's no way that's going to happen without the original producer getting involved. If you really think that this old project could be given some new legs, then you need to track down the original producer. If they're reasonable, and your recut is actually good enough to make this thing a viable property, it's possible that the producer might revisit it. Unlikely, but possible as the original producer has surely moved on from this one.
 
"I would try harder to contact the original producers and get them to sign over the rights."

Bingo! You say you talked to a lawyer, but what about a private detective? A cyber snoop might locate him in 5 minutes. Even if he's dead his heirs would own the rights. You could probably wheel and deal with the guy if you find him, cut him in for a deferred percentage if need be.



 
Sure, if you can find the producer and he or she is amenable, then do that.

I will tell you my personal experience -- and it's just one story, of course. I wrote the treatment for, and began developing, a horror movie (which shall remain nameless). I mainly did it to help an actress friend of mine, designing the lead role around her. Even so, it was a great story and we got a great script together. I then brought my actress friend in as co-producer, so she could learn about the production side of things. I hired another guy I'd worked with as director, and we began scouting locations and making a few casting decisions.

Before I knew it, my actress friend had conspired with our director, and they managed to flim-flam me to the point where they pushed me out of my own project. (Don't ask how. It's a long story.)

They re-cast, relocated, and shot the movie. I even have a VHS copy of the rough cut. It was adequate for a direct-to-DVD release, but somehow the project died there and never went any further.

I have several times contacted my actress friend (former friend) who was the producer on the film and tried to buy the rights to it. I felt it was a good story and deserved to be given a chance. And, after all, it was MY story. Nothing but stony silence in response.

I don't get it. She's out of the business now. Nothing's ever going to be done with that movie. What does she have to lose by selling me the rights back? No idea. But I've given up now.

If you try to track down your producer, I hope he or she will be more reasonable.

But if you can't find them, or they won't sell you the rights, then you're done.
 
So... I ran into the producer at a film festival and chatted with him about it (briefly). He gave me verbal permission to do my own cut for YouTube or Vimeo as long as I don't monetize it (I actually recorded our conversation). If he likes it, he wants to use it to re-submit to festivals. I told him I'd think about it. I also told him I was going to give some scenes to the actors and others from the film for their demo reels since nobody got paid. He complained, but said "fine" in the end. I think that's what I really wanted more than anything... is for everyone involved to get "something", even if it was just footage for their reels.

It got heated for a little bit because he blames me for the fact that nobody in town will work with him any more. All I did was tell the truth about what happened (along with everyone else from the production) and it's not my fault if people don't want to work with him as a result.

FWIW, one of the actors was SAG, nobody else involved was in a union. The SAG actor has encouraged me to do my own cut and was thrilled when I told her a few days ago I could send her a copy of the footage (her scenes). Unfortunately, I won't be able to do anything with it until next year. I was just promoted at my job and the next 6 months I'll be travelling to 47 U.S. cities for work. I am going to look at my financial situation, perhaps with my new raise I can set aside some money to hire someone local for editing.
 
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