[Mark Suszko]

You know, the Bible says the disciple Simon Peter vowed his undying loyalty to Jesus, then denied knowing him three times and ran off during the events portrayed in The Passion Play. And we made him the first leader of the Church. I’m not going to say I’m any less flawed a human being than him.

Just sayin’, it is nice to declare your morals and principles, and easy to SAY what you’d do in every situation, but you never really KNOW what you’ll do until the situation is really happening, to you, and you have to decide: do I honor a picket line, on principle, or does my family get to eat tonight? Do I do illegal performance enhancing drugs because I must keep pace with everyone else in the game that’s doing them or lose my ticket? Do I stick to my code, if it leads to innocents suffering? Am I punishing the wicked or fueling my own pride and need for revenge? Stand my ground and be gunned down or run from combat? Could I or would I kill a person that threatened or actually harmed my family, in cold blood, after he was jailed and no longer an immediate threat? How much profit is an obscene amount, in a world where CEO’s can earn 70 million dollars a year for FAILURE and bankruptcy, and dishwashers and nurse’s aides can’t get a one-dollar raise on their minimum wage? Nobody really KNOWS what they’ll do in these situations until they are in them. To say one does is wishing. We only know what we HOPE we would do, what we think we SHOULD do, and we try to live by that. Sometimes we meet or exceed our expectations. Sometimes we don’t.

This is not aimed at anybody in particular. But we are talking about moral codes, professional ethics, and choices. It’s okay to announce your code: it helps you live by it, as others hold you to what you’ve pledged, and encourage you along the way. Your example may also inspire others and uplift everyone by extension.

Is Flagler immoral for asking arguably the world’s richest corporation for a larger share, to buy what he technically had a right to sell? I’m not going to say he’s justified just because Walmart would have zero delay in making a business decision in reverse circumstances. It is quite correct that two wrongs don’t make a right. But don’t you think there was a social contract in place for those thirty years that Walmart was the first to break?

I think a guy’s character is rightly determined in part by how he reacts to being wronged, if he sinks to the level of his tormentor, plays by his rules or the other guy’s. I tend to give everybody one free whack at ripping me off, I’m a generally trusting, some would say, gullible, person. But I only give you one free shot to rip me off. After that, its war. Because coming at me to rip me off a second time means you’re never going to stop, and so I have to stop you. That’s not as Christian as I was taught to be. But it allows me to survive in an imperfect world, while giving everybody at least a chance.

Flagler arguably made a bad business decision and a technically legal, but shady ethical call, after being dealt a crippling blow. Being absolutist about his rightness or wrongness just seems a bit unfair, if we are not under the same circumstances. I’m not trying to defend him, condone him, or even explain him… or conversely to insult or accuse those who feel strongly negatively about him. I’m just more comfortable talking about matters of actual fact and law than of motivation in this case, because I, we, just don’t know enough yet about what the heck happened here that lead to this result. If I was sixty years old, buried in debt, without other work prospects, scre… um, worked-over by a gigantic corporation that I’d slaved for over thirty years, and they unwittingly gave me a weapon in business terms that I could use to set myself up comfortably for life, I think I would be sorely tempted to use it. I think we all would. Not all of us would act on it, for various reasons.

But we’ll never know for certain what we’re made of until we’re tested in the fire ourselves. Simon Peter thought he knew.

Thus endeth the lesson.

[Mark Suszko]

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?

[Mark Suszko]

Walmart’s likeliest tactic will be to say that while Flagler owns the tapes, he has no signed releases for anybody IN them. That means he can’t clear the footage for use in documentaries or etc. which reduces the potential for use of the footage anywhere but in academic studies and of course discovery phase of civil suits. With that rulingf they can get the YouTube showings removed as a DMCA violation and prevent junior Michael Moore’s from doing too much damage. Nobody still working or wanting to work for Walmart will sign a release to Flagler. And you can’t get a release from a dead man or his kin if they don’t want you to have it. I suppose a film maker could watch the tapes and re-create footage based on transcripts, but I’m still not sure he could use the actual words of the walmartians without a clearance. That’s a question for a real lawyer.

I doubt a judge would allow a presumption that since the people taped all worked for Walmart and gave consent to Walmart, that that consent automatically transfers to Flagler and his assigns and et. al. because I dont think the case law has too many examples of that as a precedent, rather more the opposite, I imagine. (and here is where I should stop pretending to be a lawyer, regardless of my hotel choice)

So maybe not quite the bonanza they thought at first. Still, do you think fifty grand is a fair offer on thirty year’s worth of stock footage that chronicles from the inside, the evolution and true workings of the biggest company ever?

I still think Walmart should be sacking a brace of their lawyers for getting them into this mess in the first place, plus the manager who wouldn’t approve whatever number Flagler counter-offered with. Only fools argue inside a burning building.

[Mark Suszko]

I forgot to say, I think a crafty person could make a similar rig using PVC pipe, but it would not be as still as the metal hi-pod, and so it would tend to sway. And wht would you do for monitoring and control?

I did once place a lipstick cam on the end of 20 feet of pvc pipe, and that got me a lot of very nice and interesting high-angle, fixed-lens shots achieveable no other way. The tiny lipstick cam did not load up the pipe too much, it bent a little, but didn’t sway too badly as it might under the heavier load of even a palmcorder.

If your athletic field has bleachers that don’t wobble, just a long lens from there might be enough. But I have to admit, the hipod is very cool for the very specific situations it is designed for.

[Mark Suszko]

I’ve seen the gizmo you asked about, got a demo DVD of it here. Its called Hi-Pod, you can google it, and it looks pretty nice for specialty shooting situations. It is a telescoping monopod with remote monitor and control handles for the tilt (you pan by turning the unit) and LANC controls for camera start/stop and zoom. Overpriced for most unless you rent it out to people, or are always doing parades, big high establishing shots of car lots, parades, and field sports.

[Mark Suszko]

How many business relationships are like marriages and, by extension, sometimes like divorces?

(There’s also a dirty joke hidden in that setup somewhere, but I’m trying to keep the standards high:-)

[Mark Suszko]

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]

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.

[Mark Suszko]

In the animator’s defense, if they are not sure who is looking at the low-rez preview, they may choose to only ever give out high-rez renders because they got burned one time by a clueless client or sub-client of the client, that can’t conceptualize or understand the idea of low-rez pre-vis.

They look at a low-rez version and get all crazy thinking that that is how the final is going to look, and cancel the job or hire another animator that’s “better quality”. Or they just can’t make the mental stretch to “fill-in” what’s not there and they insist on seeing full-rez all the time. So the animator sighs heavily, grabs a fresh Red Bull, and cranks one out, knowing he’s likely still going to have to make more changes.

I used to see this same problem with customers that didn’t grasp that an animatic was not the finished spot. Then there were a couple real-life cases where a client liked the animatic so much, they insisted on airing that instead of finishing the actual spot.

So, maybe make this clear to your animators, that they don’t have to cover or make assumptions about who’s seeing the low rez versions, that’s your responsibility. And maybe they’ll conform better to what you’re asking for, instead of trying to preserve what they feel is their reputation. Its when people don’t communicate directly and openly, and start making assumptions without hard facts, that you get misunderstandings.

Then again, maybe the animators ARE goofy. The craft does seem to attract a certain type:-P

[Mark Suszko]

” BTW Mark, my wife read your response to this thread and is printing it off for reference. No wonder someone gave it 5 bovines. – Don”

Note to self: tell mom she’s overdoing it again.:-)

*****

I don’t know that it’s worth a whole article, but it might be useful one time as an exercise to imagine the same basic project, interpreted for three very different budgets. At each budget level, you make trade-offs based on the famous triangle, both logistical and creative. Being able to communicate to a client what these differences bring to a project may be an effective way to upsell them on investing more money. At the very least, it shows them that you really know your job, that you’re not tricking them just to rack up the bill, and that your approach is more well-considered than some competitor’s approach, and has their best interests at the foundation.

For example, based on the budget level, your camera moves may include a jib or steadicam on the high end, a simpler wheeled or tracked or skateboard dolly on the middle, or just lens zooms on the bottom end budget. You can shoot single cam and fake that it’s two-cam by shooting twice as long using extra takes from the second angle, trusting that your actors can repeat their moves take after take and nail it…. or you can pay the rent for two cameras and do fewer takes when time is the most precious asset. When your “actors” are pros, single-camera works, but when the talent is not good or consistent, often the only way to get matching shots for continuity is to be rolling extra coverage on every take with a second camera. In this one area alone, if you can get a client to understand and appreciate what these differences bring to his screen aesthetically, I think you’re going to have a more productive relationship with that client and in meeting his expectations and budget.

Another example of that could be: location shoots versus studio chromakey, and if you are trying to hide the fact it is chromakey, or are you playing it up as an obvious, virtual/cartoony, aesthetic choice.

Is this a budget that would support using stock footage versus the cost of new shooting? When you make these choices, you are deliberately shifting the production emphasis from the field acquisition to the post production phase, trading off shoot time for edit and effects rendering time. When you crunch the numbers, what works out as more cost-effective? “No-shoot spots”, as they are called, can be exceptionally cost-effective, particularly if the copy supporting the premise plays to the strengths of the footage. You get a higher-end look for a bargain-basement rate. But go too far in that direction, and you look cookie-cutter… you’ll want to take some of the money you saved by not shooting, and spend it on better scripting, to really pull this trick off.

In the example of the tire-kicking caller with the hypothetical cooking show, your conversation could have included a discussion of the option to live-switch the show and cut down post to a minimum, versus shooting all-iso cams and building a cut in post exclusively. The costs for the two options may or may not be close, depending on other factors.

You walk the client thru the variety of choices to be made, based on what the budget allows, then they realize this is more complicated than getting a ballpark number for x number of hours’ work. Then they tell you what they want to pay, and together you figure out what they’ll NEED to pay. Then they either agree and you work, or they don’t, and you saved yourself a lot of grief and gave it to some other competitor.

Either way, you’re ahead.