Legal issue/ getting scee-rued

Posted: Sun Aug 10, 2008 8:29 am

Well according to the latest, I will be paid in full by the end of this month. It's too bad that it had to come to threatening them with a lawsuit to make it happen. I really enjoyed both projects I had done for them and they paid me fine for the first one. It was just this last one that was the problem. I dont think I'll have to worry about them to asking me to do more work for them. I'm glad I'm getting paid and yet, believe it or not, it bugs me to lose a client as they were one of the first I had gotten over a long distance connection. So hard to get new ones. Oh well. I gave them six months to pay before asking my attorney for help and a big problem on thier end was lack of communication. I cant tell you how many phone messages and emails I left with them that never got returned. If they had been open and honest about whatever thier situation was, they probably could have strewn me along a little farther. Maybe.

Thanks everyone for your ideas and support. Whatever contract I make from here on out, I stil wont release rights until full payment is made. It's the only thing that saved me this time. I agree that I should get some money down next time but sometimes these things come up so fast and have to be done right away. With the production company 1200 mile away, I couldnt just ask them to cut me check and hand it over. I had the spot done before the mail would have made it between the two of us. Anyway, have a great SUnday everyone.

E

Posted: Sun Aug 10, 2008 8:45 am

EricWatkins wrote:

Well according to the latest, I will be paid in full by the end of this month. It's too bad that it had to come to threatening them with a lawsuit to make it happen. I really enjoyed both projects I had done for them and they paid me fine for the first one. It was just this last one that was the problem. I dont think I'll have to worry about them to asking me to do more work for them. I'm glad I'm getting paid and yet, believe it or not, it bugs me to lose a client as they were one of the first I had gotten over a long distance connection. So hard to get new ones. Oh well. I gave them six months to pay before asking my attorney for help and a big problem on thier end was lack of communication. I cant tell you how many phone messages and emails I left with them that never got returned. If they had been open and honest about whatever thier situation was, they probably could have strewn me along a little farther. Maybe.

Thanks everyone for your ideas and support. Whatever contract I make from here on out, I stil wont release rights until full payment is made. It's the only thing that saved me this time. I agree that I should get some money down next time but sometimes these things come up so fast and have to be done right away. With the production company 1200 mile away, I couldnt just ask them to cut me check and hand it over. I had the spot done before the mail would have made it between the two of us. Anyway, have a great SUnday everyone.

E

Have them use PayPal. You will have your funds over night. Or ask them to do direct deposit in an account that you setup for this kind of event and then move the money out of the transfer account into a real savings or checking account. There are lots of ways in this digital age to get around the "check is in the mail" routine. Best of luck and I am glad you are going to finally get paid. We have two BOZOs that still owe us money and I am about to turn them over to a collections agency.

Posted: Sun Aug 10, 2008 9:42 am

Another thing to consider in future work...When you do work for an agency, they are billing through to their end client. When the payment situation derails and trails off into the weeds with the agency, you can then approach the end client for the payment...particularly because THEY are the ones using the uncompensated work.

Absent payment, any contractual agreements vis a vis ownership of the rights, is moot, it all reverts back to you, so non-payment by the agency leaves the end client open to having to pay synch rights, songwriter royalties, SR royalties, the whole kit.

Then again, it may be the end client that went belly-up!

Often, small ad shops have 3 clients that comprise 90 percent of their revenue. Losing one of them for some reason is usually devastating.

dwoz

Posted: Sun Aug 10, 2008 9:59 am

dwoz wrote:

Another thing to consider in future work...When you do work for an agency, they are billing through to their end client. When the payment situation derails and trails off into the weeds with the agency, you can then approach the end client for the payment...

dwoz

Right :)

The end client has no idea who you are, except another freak standing on the sidewalk screaming at the window "I want my money!"

Bad idea.

Posted: Sun Aug 10, 2008 10:09 am

I am not a lawyer and I do not play one on TV but common sense would be that if you are billing a company that is slow to pay and you try and go around them to the ad agency that is working though them you have no legal claim on the ad agency since they are doing work with the second party and not with you.

You are dealing with a "third party" and not with who really owes you the money. They are out of the picture and off the table when it comes to getting paid what is owed you. You have to do business with the people that really owe you and not with someone twice removed.

FWIW and YMMV

Posted: Sun Aug 10, 2008 10:18 am

Space wrote:

dwoz wrote:

Another thing to consider in future work...When you do work for an agency, they are billing through to their end client. When the payment situation derails and trails off into the weeds with the agency, you can then approach the end client for the payment...

dwoz

Right

The end client has no idea who you are, except another freak standing on the sidewalk screaming at the window "I want my money!"

Bad idea.

My dear Space...you ever been within 50 feet of an ad/production agency?

MOST of the time, with respect to direct production services, the agency is acting as an AGENCY, which means something very specific in the realm of commercial business transactions.

It means that the actual buyer is the end-client, not the agency itself.

See, it goes like this: if an agency buys music from you, for a client's commercial, then the agency would take ownership rights in the IP, and subsequently turn around and "sell" that to the client. But that's not the way it's done, AT ALL. For IP stuff, the agency acts as intermediary, negotiating and consummating the transaction ON BEHALF OF the client, therefore is never actually "in possession" of the IP. For things like promo materials...brochures, etc., this is not the case, but for stuff like creative products, Intellectual Property products, it's very much the case.

So, the "client" is most certainly aware of "who that freak out on the sidewalk" is.

It's important to remember that IP rights are very different than other stuff that's bought and sold, and they're treated differently. If I order a bunch of brochures from a printing company for you, and never pay them, but give you the brochures, the printing company can't go after you to get those brochures back...I'm the only one they can go after. But with a musical composition, same scenario, the composer can go after ANYONE, ANYWHERE that is using that uncompensated composition, and get a cease-and-desist.

OF course, what I'm saying here just goes for the majority of agencies...there are many out there that cut deals in many different ways. IANAL...YMMV...ETC.

dwoz

Posted: Sun Aug 10, 2008 10:26 am

Oh no he did'n.

Posted: Sun Aug 10, 2008 10:37 am

Thomas W. Bethel wrote:

I am not a lawyer and I do not play one on TV but common sense would be that if you are billing a company that is slow to pay and you try and go around them to the ad agency that is working though them you have no legal claim on the ad agency since they are doing work with the second party and not with you.

You are dealing with a "third party" and not with who really owes you the money. They are out of the picture and off the table when it comes to getting paid what is owed you. You have to do business with the people that really owe you and not with someone twice removed.

FWIW and YMMV

The difference here is that we're talking about IP rights, not about some product or service.

The finer points of the legal exposure of all interested parties is way past the scope of an audio forum...but essentially, you own IP rights in your work. Client is using/has already used your work in their marketing materials. Client paid agency, agency never paid you.

Your contract with the agency is then broken, and they in essence never owned the right to use your work in the client's ads. The client is now using your IP without a legitimate right to it, and at the very least, you can force them to immediately stop using it. At best, you can take them to court to get compensated for the extant use, at statutory rates. I doubt very much you could get damages, but that's something else. At that point, the client has a claim against the agency, to get the money back they had to pay you.

If you're lucky, the composition is something that has been deeply incorporated into their entire marketing identity. That would be good, because it would cause SO MUCH PAIN for them to have to cease using it, immediately. If you're not so lucky, and the composition was just some bed to a one-off commercial, then they won't be particularly responsive to you, and it won't matter to them to just discontinue it.

THing is, Mr. Bethel...these kinds of screwy pay-through/bill-through transactions and snafus happen ALL THE TIME in the marketing/agency world.

The legal term you're searching for is "first sale doctrine". WHich doesn't apply to IP.

dwoz

Posted: Sun Aug 10, 2008 11:35 am

"My dear Space...you ever been within 50 feet of an ad/production agency? " /quote

Well, I did a harmony part of some copy I helped pen back in 1980ish +/- in the recording studio that our band worked out of and Gray Agency had an office in...that's within 50 feet.

Seems like contract labor to me. Remember, I am a construction rat, everybody should be aware of this by now :)

I think all your flowerdy talk may work for someone of the stature of say, Brett Favre in his negotiations with the Europe Football League, but it is not going to help the OP any.

I am not disagreeing with you specifically. Only that it is a lofty goal that seems to have no legs in this issue.

But maybe you have seen an ad agency closer up then I and have some extra ledders behind your name that support what you speak, ah, type.

Brien, C.R.

Posted: Sun Aug 10, 2008 2:33 pm

Space wrote:

Seems like contract labor to me. Remember, I am a construction rat, everybody should be aware of this by now Smile

I think all your flowerdy talk may work for someone of the stature of say, Brett Favre in his negotiations with the Europe Football League, but it is not going to help the OP any.

Often agencies will want to commission music compositions as "work for hire", at perhaps a somewhat larger up front cost, to avoid the hassles of determining royalty payments later on. As part of a work-for-hire contract, you formally assign all your rights to the company that's hiring you.

...but the big point here is, it's STILL a contract, and when the contract isn't PAID, the terms of the contract are moot. Therefore, the work in question remains in the ownership of the contractor. This is different, also, between a STAFF composer who's paycheck bounces, and an independent contractor who is working on a job basis.

Now, I don't care if you're some little teeny guy doing work for a little teeny shop. The same concepts apply as the big boys.

Now, maybe what you mean is that the dollar amounts aren't enough to bother chasing, but what I read from the OP was that he was contracted in the "thousands" range. A mom-and-pop ad shop putting together radio spots for the local tow guy doesn't spend "thousands" on custom music. They go to the royalty-free libraries.

So, I think that it's probably quite apropos to the OP situation.

The bigger ad agencies have WHOLE DEPARTMENTS devoted to clearance of royalties...

dwoz

Posted: Tue Sep 23, 2008 7:07 pm

I did get paid. All of it! Yeeeaaahhhh!

Posted: Tue Sep 23, 2008 7:21 pm

What did it take to make it happen Eric?

Posted: Wed Sep 24, 2008 12:59 am

Congrats dude Smile

Posted: Thu Sep 25, 2008 9:45 pm

Excellent!

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