-
Kansas firm sells candid Wal-Mart videos
-
I for one do not like WM. My reasons are my own and are not pertinent to this thread. However, when a company like Flagler does this to a client, WM or not, and their intentions become public it reflects badly on all aspects of our industry. It’s no different than blatant racism. It diminishes us all.
my 02.
– Don
-
Thank you for seeing the bigger issue here, Don.
Ron “Who doesn’t like Wal-Mart either” Lindeboom
-
My guess is Walmart outsourced the video work to China as well.
Looks like this case is all about an issue that comes up here constantly, “work for hire”, and who owns the footage.
Usually the conversation is in the context of wedding videos or much smaller scale programs for small clients. The only real difference I see is that the customer in this case is a huge multinational. Every time we talk about work for hire, the usual response somebody types is: “absent a contract with specific language, the shooter retains the rights to the footage”. A sub-issue is, did they sign any NDA’s or other agreements regarding trade secrets or proprietary information. Wedding footage is not very marketeable as stock, and many small business videos are so specific as to topic that they also have no real resale value to anyone, so the exploitation of the asset after the client is done with you comes up only rarely, most producers just junk or recycle the tapes because nobody would want the footage except the original client, and if that client doesn’t want them, they’re useless junk.
I’m not a lawyer (sorry mom) but it seems to me this points up a huge failure in Walmart’s legal department, to have let this happen in the first place. My guess is, it came down to dollars, as it usually does in corporations, and especially at Walmart where shaving expenses and costs is the company religion, and nobody wanted to buy the guy out back when it would have been cheaper. Considering what Walmart spends on PR, you’d think it would have been an easy decision to buy out all the footage for whatever price the guy wanted. Even smarter would have been to arrange to own the footage outright from the start. But my guess is, this decision was not in line with Walmart corporate culture. It is no secret I’m not a fan of that company but I’m actually trying to stay neutral about that in the context of this discussion.
We don’t know the whole story, but it smells funny that they would have dropped this Flagler guy’s company so abruptly. I would like to know details of what happened there before a rush to judgement.
Now, to Ron’s issue of trust and reputation, which is a completely separate matter from the finding of fact regarding ownership of the footage. I can tell by the force of Ron’s reply that this is also a very personal issue for some folks, as it should be. But let’s try to parse this out and see where it leads.
Flagler was destroyed, out of business. His only client dropped him. Not unlike what many Walmart suppliers have had happen, see Vlassic and Huffy bikes for just two examples of that… but let’s stick to video-related and business-related issues right here.
If you accept on the face of it that he owned the footage, (which we normally do in these discussions) meaning he COULD release it, then it comes down to why and SHOULD he release it.
Without putting word’s in Ron’s mouth, I would say his opinion seems to be that trust is the most important issue, that we are like a priest or doctor in that we never leak client’s dirty laundry anywhere. I think I generally agree with that, except in cases where a crime is committed and you have some duty to society to be a whistle-blower. If you get the reputation for leaking, as a gossip or a rat, however, it is pretty certain most clients that know of it won’t trust you to keep their secrets either. So as a long-term business decision it looks like a bad move to do what Flagler did.
But Flagler had no long-term, and wasn’t planning for one is why I guess he did what he did. Seeing the chance to make a fast few million and retire like a lotto winner, his reputation in the industry became a non-issue. This also is the only leverage he had on Walmart, a company that has armies of lawyers whose only job is to delay, obfuscate and hinder legal processes in the service of Bentonville’s interests. This is a not inconsiderable force with which to intimidate a small businessman: once you ink a deal with them, you are riding the tiger and dare not get off. Again, consult the Vlassic pickle and Huffy bikes cases for real insight into those business relationships.
When we talk about negotiating tactics in business, a maxim that comes up often is: “you can’t negotiate unless you’re willing to walk away from the deal. If you can’t say no and walk, they own you, and you’re going to eventually do whatever they want.”\\
Again, this is just a guess, but I’m guessing Walmart put Flagler in this position and told him to take a low offer or leave it, assuming he’d take it. But they forgot who actually owned the footage. He owns it, and it has value. The only real issue from a legal standpoint is how much he can get for it and from whom.
Their next step likely IMO is to try and get an injuction against releasing any more footage, on grounds of proprietary information and trade secrets. Will that hold up in a court, I can’t say, but if they grant the provisional injunction at least until the case is heard, Walmart wins and quashes the footage for maybe years while appeals and counter-claims are filed, considered, and otherwise marinated thru the court process.
One issue that might support Flagler is, there are legitimate court cases out there, ongoing, concerning this client, and the footage is very likely evidence. Remember what I said about whistle-blowing in the cases where your client commits a crime. It is likely IMO that a state or federal prosecutor in a case against Walmart would subpoena that footage and get if from Flagler for free, or the cost of dub stock. In which case Walmart loses the chance to suppress that footage, Flagler makes no money either, and we have full employment for lawyers. I don’t know what the rules are when it is private lawyers in a civil suit deposing or gathering evidence. But anticipating this, Flagler’s only choice from a business decision point would have been to get what he could for the footage, from anyone who would pay, while it was still worth a lot. His moral choice is between him and his maker, but the moral choice in a situation like this is not always clear-cut, considering all the side issues going on. This is not a paparazzo flogging pictures to magazines and the internet of a “wholesome” starlet losing her modesty. This is a guy fighting for his life after a deal with the world’s hugest company went bad and they were crushing him like a bug. Are any of you really so sure you wouldn’t have made the same choice he did? I thank MY maker he doesn’t put me in those choosing situations too often.
This is why I’m unwilling to actually take either side on the question of “should he”. My opinion is he can, if he wants to, and that under his specific circumstances, the only way for him to survive financially was to do it. Has he ruined himself in the corporate video world? Very likely yes. So his decision had to be “was it worth it” as well as “was it right”.
The rest of us usually have more options and choices.
Can we agree to continue this discussion on this purely intellectual level, and not get personal? Because anger and name-calling is not going to sway anyone or get to the truth of things, on either side. I like that the discourse on the COW is always of a more elevated nature, leaving emotions and politics aside. We already have USENET for that stuff.
-
Ron I think you’re right that it’s a black eye for the industry as a whole. But I think we’ll survive it. Most people will get caught up in the “walmartness” of it and not make the broader connections you did, IMO.
Frankly, some good may come out of this after all, if it leads to clearer contractual obligations for all parties. I imagine there are a lot of conference calls going on in corporate legal offices today across the country. Expect new contract language for your next deal that’s more specific as to who owns what, and I think life will otherwise go on.
-
[Mark Suszko] “Most people will get caught up in the “walmartness” of it and not make the broader connections you did, IMO.”
Most people aren’t running companies. It is the ones that do that I fear will have the longest memories and will make the broader associations in this case.
But yes, life will go on; even if people’s eroding sense of ethics causes yet another layer of contractual obligation to be spelled out because many seem to no longer have any real inner-compass — and live lives where their word is meaningless and without any moral backbone.
Not justifying Wal-Mart by any stretch, just saying that I have little doubt that Flagler knew full well that these tapes were not being paid for so that they could put them up for sale.
Best,
Ron Lindeboom
-
[Ron Lindeboom] “I also believe that you are a blind self-centered opportunist, and someone that I hope finds no place in corporate video.”
Wow – a personal attack from the man who owns the board… Party’s getting ruff…
Here’s my take – this is such an freak situation that I just don’t see it translating into a black eye on the whole corporate video industry. I think the lesson that will carry on from this, if any, is that Wal-Mart’s lawyers screwed up, and that ownership of the footage should be part of any negotiation.
Hopefully, some good comes out of the archive being made public. I like to think that if I was in the same situation, I’d throw it all up on google video for free.
-
[Mark Suszko] “Without putting word’s in Ron’s mouth, I would say his opinion seems to be that trust is the most important issue, that we are like a priest or doctor in that we never leak client’s dirty laundry anywhere. I think I generally agree with that, except in cases where a crime is committed and you have some duty to society to be a whistle-blower. If you get the reputation for leaking, as a gossip or a rat, however, it is pretty certain most clients that know of it won’t trust you to keep their secrets either. So as a long-term business decision it looks like a bad move to do what Flagler did.”
Being a participant in the crime for 30 years makes you more a co-conspirator than a saintly whistle-blower, does it not, Mark?
These guys aren’t doing it for the ethics. That is clearly not the issue.
To me, one of the best businesspeople that I know is Steve Crimmel who has worked with Supertramp, The Doors, Quincy Jones, Frank Sinatra, Lionel Richie, Neil Diamond, Kenny Loggins and many, many others.
While engineering sessions for these people, he has seen and witnessed many things that would drop your jaw. Did he ever tell me any of them? No. The only reason I know anything about anything is that I know his wife who was also there. She told me because we’ve known each other many years and she knows that I have also produced sessions for many artists. When I mentioned a word of any of this to Steve, he got right on the phone and asked his wife to drop the stories and never tell anyone. Good advice and a prudent request in my opinion. Out of respect for Steve, I have let the stories die with me.
I know many stories of many people in this industry that would drop your jaw. I don’t relay them.
Don Henley’s “Dirty Laundry” springs to mind.
Now where’s iTunes??? Ah, there it is…
Kick ’em when they’re up, kick ’em when they’re down…”
Ron Lindeboom
-
Flagler’s critical need for good legal counsel was noted earlier. My bet is they are completely lacking this important element of a viable business and that they are going to lose this battle — big time. Once WalMart’s atty’s start showering Flagler with motions, restraining orders and such like they’ll be gone in a matter of weeks. And deservedly so. What a bone-headed move against one of the world’s largest corporations. Let’s just hope that someday we can read exactly what WalMart did to make Flagler feel so aggrieved.
-
[Mark Suszko] “Expect new contract language for your next deal that’s more specific as to who owns what, and I think life will otherwise go on.”
Funny how we’ve had quite a few threads lately about “who owns the material that was shot.” I guess we’ll finally know.
And I have to agree with the great boomer on this one. Wal-Mart is very low on my list of respected companies, but Flagler has definitely stooped to an all time low. Your one and only company dumps you so you cry like a baby and decided to sell off a large company’s video library.
I definitely would NEVER hire this company to produce anything. Zero ethics. I’ve lost more companies over the years than I have on our roster at any one time. I actually get nervous if any one company is a significant part of the business so we don’t rely too much on any one thing.
Flagler’s poor business model is a great example for anyone looking to start their own business. Nothing and no client is forever.
Walter Biscardi, Jr.
Biscardi Creative Media
HD and SD Production for Broadcast and Independent Productions.STOP STARING AND START GRADING WITH APPLE COLOR Apple Color Training DVD available now!
Read my Blog!
-
I have always argued against personal and direct attacks here at the COW. That’s the rule. But, as in life, there is another rule that says that for every general rule there is a great and glaring exception to that rule. Shift happens.
When I see someone blatantly state that betraying a trust is a good thing to do, I will always challenge that as I think it is a ridiculous posture to take. It will always destroy your credibility in the end and when you do it publicly to a company the size and power of Wal-Mart — and then encourage others to do it — you are giving our industry the kind of black-eye that will have far reaching repercussions.
Me, I think that is not only bad advice but idiotic advice and I don’t mind saying so.
If you disagree, please don’t ever see me about work of any kind.
Ron Lindeboom
Reply to this Discussion! Login or Sign Up