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Dilemma
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Sounds like now is the time for that small claims court. She may not be chasing you for the drive, but a liquidator may well, an you have no paper to say it’s now yours. Anyway, it’s worth only a small fraction of the $$$ you are owed.
On another tack, presumably you hold the only offline of an edit which has not yet been onlined and delivered. Who is the end client? They stand to lose whatever they have put into the prod co up until now, and not have their programme finished.
Perhaps you need to contact the end user (copy to prod co) to fill them in on the situation, report that you are holding the project files for the time, and that when / if the prod co folds, they may want to approach you and the liquidator to see what they can salvage at what cost.
There’s no reason for you to accept less than full $$ value on all work – the end client’s options are all worse, and for the liquidator – who will hold all rights to the footage, which you can’t use without her/his approval – but can return net cash into the liquidation so long as the client pays more into the liquidation for the completion than your overall bill.
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This is the time, as has been stated here on this board many times in similar situations, to bow out gracefully and with the kind of style that leaves your reputation intact.
If it were me, I would just offload the work and wipe the drive clean with the kind of reformatting that would make recovery impossible, and then bring them the drive with a paper that they could sign for the receipt of the drive (so there’s no question but that it was returned).
Would I give them the work under any circumstances? No.
Your mileage may vary,
Ron Lindeboom
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It’s not theft. It might be a “conversion” crime in some states but it’s entirely civil in nature. If they brought it to you of their own free will and left it at your place of business, it is not theft. Theft is described as taking something against someone else’s will, knowledge or permission, and (this is big) you have to plan on keeping it. That’s why kids are not charged with “auto theft”, but are charged with “joy riding” because they did not intend to keep the vehicle. Once they “convert” it to their use permanantly and it’s obvious that they do not intend to abandon or return it, they can then be charged with theft.
I too would transfer the files to a safe place and return the drive by common carrier (a delivery service) with a full description, including accessory list and serial numbers. Get a signed receipt. Never actually admit that you have the original material.
Most likely, you are completely screwed. Sorry.
The above statement is not to be construed as legal advice. It’s just my opinion.
Steve Wargo
Tempe, ArizonaIt’s a dry heat!
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We just went through a 92 day slow pay recently and when we sued our client, we also sued their client, a well known stage actor. It was a demo for the stage actor. Our attorney also issued a cease and desist order to the client’s client that informed them that we were the copyright holder to the footage and that they could not use it until all notes were paid in full in cash. We were paid, in cash, within 24 hours by our client.
On another matter, we produced a 30 minute infomercial for a regular client in January. We usually collect 50% up front but the client sweet talked my wife into waiting. I had no idea and when we were done, we just handed him the master, as we usually do. He has paid a total of $2000 since then. I am out all of my crew costs because we pay everyone regardless of whether we get paid or not.
The infomercial runs on the golf channel every sunday and the product is a vest that teaches muscle memory to the golfer. We start our legal proceedures this coming week. This has been a good client for years but he has always been a little slow on the pay side. I would be $7000 ahead if I had turned this job down. I fired my wife from the position in the company that she held. Sometimes, things just turn to crap, no matter who it might be.
Steve Wargo
Tempe, ArizonaIt’s a dry heat!
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You fired your wife!!!
You might be out more then the 7k.
Johnny Cuevas, Editor
http://www.ckandco.net -
I fired my wife too once, she was relieved. I was shooting a wedding that turned into needing to be a 2-camera thing just the night before, at the rehearsal, and I had nobody available to run second camera for the day of the service, which was only needed for b-roll and cutaway of the aisle procession and the vows. On the day of the shoot she double-pressed the go button on the camcorder in her nervousness and took the camcorder OUT of record for the essential shot. While the video was not ruined, it was not up to my standards without that cutaway, so I comped the client half, aplogized profusely, (they were puzzled by this as they thought it was all fine and didn’t notice the lack of the cutaway) and told my wife “Honey, I love you very much, and always will, I was grateful you volunteered to help me out in a jam but it didn’t work out and you are fired, let’s go home, I’ll cook tonight.”
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We’re actually out $18k. I had $7k invested in wages, tape, services and rentals. The total invoice was a bit over the $18K.
So, I fired the wife. She was hurt. But, she went on to help a friend by running her business for 10 days while the friend went on a cruise. It turned out to be a great business with no overhead. The friend helped her get started and she got her first check for $2500 for one day’s work last week. She will probaby net $300,000 the first year and at that point, I just may retire an go to work for her. But, we’re still out the $18K.
As for hitting the record button twice, that’s why we have all those talley lights on the front and back. Those accidents happen every day when we’re under pressure, understaffed, late, whatever. It seems like no matter how many safeguards we put in place, there’s always a way to blow it. I’ve worked with my wife for 11 years. I love working with her. I am so glad we don’t work with each other any more. I’m confused.
Steve Wargo
Tempe, ArizonaIt’s a dry heat!
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Hmmmmmm. If they own the drive outright, maybe you should accept it as partial payment. If she is still being civil to you, ask for a receipt for the drive transferring ownership. Make sure it’s not part of a lease or loan. There is a way to check the serial number doing some sort of web search. Ask a leasing company how to go about this. A $700 drive isn’t equal to your loss but it’s something. If someone comes to get it later, then give it up. I doubt that will happen. Take the other’s advice and see if you can salvage the job with the end client. Hell, try anything.
Steve Wargo
Tempe, ArizonaIt’s a dry heat!
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If bankruptcy is imminent, the court can order the return of all assets, it’s even fairly common that they recover any large payments made in the last 60-90 days from creditors who have already cashed the check to redistribute the funds across the full range of creditors. The harddrive could be recalled by court order…or it may be so small as to not be bothered with…as it seemed by the phone call you referenced in your UPDATE post.
I’m sure that $1700.00 is a lot of money for you as it is to me, but depending on how big the company is and what the liabilities are, and how old and overdue some of those liabilities are, it may not even make the list. On the other hand, if they paid you right now and went bankrupt, the court could easily recall that money to be redistributed to other larger/older creditors.
Again, depending on how large the company is, $700.00 worth of new harddrives may not be a larger financial item than a week’s worth of office suppiles. I ran a small production business with 12 employees in the 90’s and 700.00 would have been about 10% of my monthly health insurance premium for the company, and that doesn’t count salaries, rent, vehicles, lease payments, etc. My monthly overhead in ’98-99 was around $15,000.00 and that was without buying new assets, that was just paying ongoing operating expenses.
The harddrives shouldn’t be used as an indication the company is not broke. A large business has large expenses and items that seem substantial to you and I might simply fall through the cracks for a large business.
TimK,
Kolb Productions,
Creative Cow Host,
Author/Trainer
http://www.focalpress.com
http://www.classondemand.net -
I’m curious as to how this has turned out. Just in case it’s still pending, here’s my $0.02.
I agree that you should transfer the files over to your own drive, then delete them from the ‘clients’ drive.
If they want the files, I’d be tempted to add a ‘carring charge’ on top of what they already owe. Settle for half? No way. Payment, how about a bank wire transfer directly into your account. To heck with checks.
If these guys are really going belly up, they should know that they aren’t about to get the work you’ve done without a guaranteed form of payment.
Hope it will work in your favor if it hasn’t already.
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