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Kansas firm sells candid Wal-Mart videos
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[Tim Kolb] “It’s a tough deal for a production company that has clearly had all it’s eggs in one basket for a loooong time, which is a self-created peril anyway, made worse by a colossally petty and foolishly unprofessional stunt when the ride ended…”
What I found quite interesting is that apparently (from a former Flagler employee posting on the Wall St. web site) WM basically demanded that they be the ONLY client of Flagler. Wonder how often THAT happens? I mean, in the video biz.
– Don
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Admittedly in the UK and in a very much smaller way I once asked a media lawyer a question that relates to this – mainly because I was owed a bit of money.
The “who owns” question when there is no contract in place.
The answer was pretty much immediate and definitive:- “Can you honestly stand up in court and say that you were employed by the client company for 4 years on the basis that you would hold all the rights?”
Basically, with no contract in place to say otherwise is falls to an implied “reasonable use” in the handshake agreement over 30 years. As has been pointed out several times already WM would never have employed this company had they ever thought that the footage belonged to anyone but themselves – no company would.
Maybe the US has different rules, but the lawyer and the situation we were discussing covered a lot of countries.
In my opinion Flagler is in a no win financial situation on this one. If they just want to get a few shots in at Wallmart they might score with some leaked footage to lawyers and people that are bringing cases, but this is likely to cost Flagler a lot more than it could ever gain them in money terms.
Flagler are unlikely to be able to position themselves as the White Knight whistle blower, for all the reasons already pointed out. They will look vindictive at best – even if their footage helps a few media friendly cases.
For Flagler it ends the company’s reputation, ruins them further financially in legal evil costs – and they probably don’t even get the satisfaction of slaking their thirst for revenge by scoring any really effective points against the Wallmart.
As usual, only the lawyers will win all round.
The Brit in Brisbane
The Pomme in Production – Brisbane Australia. -
…i[Don Greening] “WM basically demanded that they be the ONLY client of Flagler. Wonder how often THAT happens?”
It happens quite often in the video biz, whether it’s stated as such or not…have you ever had a client that WANTED to hear that you’re unable to jump at their every whim because you have other clients…?
…and I think by know it’s common knowledge that it happens to EVERY Wal Mart vendor.
I have no doubt that Wal Mart was not a nurturing or altruistic client, but we’re still off the map on what this production company did in my opinion…
TimK,
Director, Consultant
Kolb Productions,CPO, Digieffects
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Another Wall Street Journal article with a little more info and a video report with Mr. Flagler in it.
By the way, Mike Flagler sold the company in 2006 to two employees before Walmart dumped them which happened only 9 days after selling it:
“Candid Camera: Trove of Videos Vexes Wal-Mart”
https://online.wsj.com/article/SB120770260120100121.html?mod=WSJBlog
Couple snippets:
“The production company’s founder and former owner, Mike
Flagler, says he was hired on a handshake in the 1970s to help produce the events Wal-Mart holds each year for managers and shareholders, including entertainment portions of its annual meeting and important sales meetings. He filmed them as well.He says he rebuffed Wal-Mart’s suggestions that he reuse the tapes to save money. Instead, he held onto recordings of commercials, executive speeches and manager hijinks.
Corporate records typically are closely controlled through legal contracts that restrict access and use. Mr. Flagler says he never signed a contract with Wal-Mart for the production or video work. Flagler Productions says that that arrangement left ownership and control of the films with it.”
and
“The video library might have remained under wraps if a new Wal-Mart executive hadn’t decided to hire another company to stage a musical production for its 2006 stockholders’ meeting. The decision sharply curbed Flagler’s role. Wal-Mart dumped Flagler altogether as a producer in late 2006, nine days after Mr. Flagler sold the company for an undisclosed sum to two employees, Mary Lyn Villanueva and Gregory A. Pierce.
The current owners say Wal-Mart accounted for more than 90% of Flagler’s revenue. The company’s bank called in a loan, and the pair dismissed their 16-person work force, Ms. Villanueva says.
Flagler offered to sell the whole video archive to Wal-Mart for several million dollars, Ms. Villanueva says, although she won’t disclose the exact price. Wal-Mart countered with an offer of $500,000, arguing the footage wouldn’t be of interest elsewhere, the two owners say.
They sold their 20,000-square-foot production facility and moved into an 800-square-foot rented office. They now hope to sustain the company by selling access to the Wal-Mart videos. They charge $250 an hour for video research, and additional fees for a DVD copy of film clips.”
Randy
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Royal butlers and Britney Spears’ babysitters have made millions from material like this. If nothing else, Michael Moore and Julia Roberts producers will find fair use rights of parody. Will Flagler’s people ( apparently not Flagler himself AFAIK) win big time? No. Will WalMart lose a bit, most likely. Get those tape duplicators busy.
George Socka
BeachDigital
http://www.beachdigital.com -
Generally in business when you lose a client, you use your expertise to attract new clients, rather than trying to blackmail former clients in order to make a living. Bad move.
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Gav, mate, I don’t know how they do it in God’s own Earth, but in the States where this is happening, there is a simple break point: if you work IN the company (on salary), everything but EVERYTHING you do, they own.
If you are an outside contractor, paying your own taxes and benefits and not getting a salary from the customer and not reporting to a boss, they only own the finished “work product”, the master program, not your original elements or work rolls.
If Flagler worked in an internal Walmart video department with salary and benefits, a boss, and etc. we would not be having this conversation. The law up here is that, absent a written contract that says otherwise, he owns the tapes. Not Walmart.
What he can eventually Do with them is another matter entirely. There are unsettled issues of the people in the videos signing releases, as well as possible copyright issues.
And since we’re being sticklers, should we even be using Flagler’s name? Technically, he sold the company and this problem is between the new owners of his dead company and Walmart, isn’t it?
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lol
tryin’ to shake down the man will get a brother shaken.
It’ll make a good movie but I assume it’ll come out after the explosion.
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Hey, they are big, Mike, and the other people are small. That makes it okay. Didn’t anyone learn you that???
😉
As long as you are small, you are justified for pretty much anything under the “Hey, they have much more money than you, me, and my neighborhood” clause.
I guess you missed the memo, eh?
Ron Lindeboom
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Hi Mark,
running under different rules to the UK then – I was self employed doing production work for the company in question, not an employee.
I stil think that this means that they can keep the actuall tapes, but they have no rights to use them at all – under the same reasoning that I first posted about.
If it’s just clearance on performances I think they can get around the issues for the people in the videos – is it news worthy or educational? Answer “yes” to pass Go and proceed directly to fair use.
The Brit in Brisbane
The Pomme in Production – Brisbane Australia.
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