[Mark Suszko]

I don’t think that’s going to work for you either; what you’re talking about for this gig is really a work-for-hire, they are going to own everything once its done, you get paid just once, so make it for a reasonable amount. A big number for the quote can intimidate folks, but one of the things you have to get across to them is that the number is not all profit to you, but reflects mostly expenses, expenses that anybody would have to pay, just the same. The car salesman does not make $20K on selling a Taurus, does he? No, he’s making maybe a few hundred bucks in commission, selling you $19K worth of car, get it? So do not be afraid to quote a number that seems “too big”. “It costs what it costs”, and they can either afford it or they can’t.

I agree with the others that I think you pretty much killed this deal and client forever. You have zero bargaining power. Maybe if you say it was a misunderstanding and it was $500 for the shoot you were quoting, but a separate rate for the edit… still, I think it’s blown.

Consider it tuition in the school of life. And consider yourself lucky, because some folks pay WAY more. The business amd marketing section of the COW has a ton of threads related to rates, how to set them, how to negotiate, etc. You could do worse than spend a few hours browsing the archives, because those guys are very smart and experienced. Figure your rates. Think thru the hours of the project in all aspects next time, and add some markup for profit, not just break-even. Then you’ll be much better prepared for all the following opportunities. And keep your chin up; everybody starts where you are now, it can get better.

Best of luck to you.

[Mark Suszko]

Old rule: “first guy to name an amount loses”.

There are ways to upsell an under-informed new client as you walk thru some questions. You can ask things like: “were you expecting this to be shot with professional lighting? Because that is going to add some cost”. “How much cost?” Well, depends how many days of shooting, did you have a figure for how long this project would take to shoot?” “No, we thought since it’s going to be an hour, it would take about an hour to shoot”. “Sometimes that’s not far off, but usually, if you need to break things down into segments and shoot from multiple angles, that’s going to take significantly more time, even as much as a day or more, depends on your specific project and needs. And your script. Do you have one yet?”

…and you can see how this is one way to walk them thru all the items they hadn’t thought of, laying the groundwork for them to understand that there was much more to doing this than they knew when they pulled a figure out of the air. Don’t intimidate them exactly, but instead educate them gently, throwing the process wide-open and adjusting their expecations along the way.

At that point I say: “I don’t know how much you’re planning on spending, but if you need x,y,and z in the project, the amount you have to work with drastically affects how you execute those things. You can have it fast, good, and cheap, but you only get to pick TWO of those three. So which two of those three are most important? (If they insist on all three, I wish them luck with it and recommend my worst rival to them.)

Something I do a lot as well is, I assume or act like I’m not going to do the gig, and I’m just throwing in my two bits as a disinterested third-party observer who just wants to help out, no strings. So I’ll preface the remarks with: “Well, if you’re asking for an opinion, no matter who you eventually choose to work with on this project, when you’re deciding on details you should ask them this, a,b,c,… ”

What I’m telling them to look at in there is, stuff like, are they using pro talent, if not, are they going to use multiple cameras to get all the angles with continuity in less takes, which speeds the edit but doubles the camera budget, or are they going to plan to shoot longer, until the non-pros get it right in more than one angle, which adds hours to the crew rates, and will the final quality of the performance be what they need it to be, in exchange for all the extra time spent, yadda-yadda. What kind of lighting is going to be used, are they expecting camera moves like dolly or jib shots, or just a static camera, what kind of effects, have they budgeted for graphics yet, etc. At each point I may suggest a high-end method and a lower-end alternative. I always imply the lower cost method might work but gives up something, so they have to be prepared for that.

Each of those areas is a chance to infer or drop hints that I already know how to do what they want, on a budget. I might even give up a freebie tip that will save them a buck or two. They are going to compare me with whoever else might get this gig, even if its just in their head, and I want to compare favorably.

And in the process of this conversation, I have stealthily sold them on the fact that I already really understand their needs, am on their side, and would be the logical person to make all these things happen for them efficiently and with quality. A good deal of the time, after one of these conversations I don’t have to ask for the sale, at that point, they are asking me if I would please take it on for them.

At which point you can say: “okay, lets run thru your needs one more time, get a ballpark of the costs, and see if you have the budget to meet that. If you don’t I’ll run the numbers a second time using all the lower-cost alternative methods, with the understanding that you are making some trade-offs in schedule or quality in favor of the expense. If that’s still not working, we’d have to see if we can alter the project to fit the budget you have.”

Now after all that, they might STILL not have the budget to make this worthwhile for you. At that point, you’ve done all you can, stay polite, open, and interested, ask that they call you back if their plans change, no hard feelings, and if they need to follow up with a question, to email you and you’ll try to advise them. Chances are good that you’ll get a call back after they upsell their bosses to raise the budget. Or it dies, but at least you didn’t take a money losing gig, and you made a personal connection; maybe the next, more realistic project, they’ll start by talking to you first.

[Mark Suszko]

Peter, I think the way to get around that issue is to not make yourself responsible for unit sales in the first place, but to contract to deliver a set number of copies to a client who pays you up front. Make THEM worry about selling the individual disks and enforcing. One insurance method is to demand a minimum number of pre-orders by a deadline or nobody gets one.

You have to decide what business you are in, or WANT to be in: producing the video or selling it. For small-audience items like recitals, you never want to be in charge of sales or collections and should never put yourself in the position of fronting all the production expenses and hoping to make it back on dubs. For the reason you cited.

[Mark Suszko]

Another example of that, I’m into RC model airplanes. This one guy really liked the aerobatic team that used to fly at airshows sponsored by Holiday Inn, in their trademark green color and with their logos. Guy made a quarter-scale Pitts Special that was the spitting image of one of those planes, won contests with it. Sent a proud papa pic to Holiday inn… and got a C&D letter from their lawyers.

A particularly odious one to me is, there are a number of small one-man manufacturers in the RC plane making business, making little models out of styrofoam profiles. From the side, they look real, from the front they look flat like pancakes, not dimensional. One such, Roadkill RC, got leaned on heavily by Lockheed Martin, who told them they could not make models of WWII fighters like Lightnings and Mustangs and bombers like the B-17 because the plane’s designs were copyrighted by Lockmart, hurting sales of the product, (they still make B-17’s?!?!) as well as “revealing trade secrets” (on 1940’s technology?) and RoadKill needed to pay huge licensing fees that would bankrupt the small shop.

After a lot of negotiating and soul-searching, the company decided to pay up, because Lockmart promised them if they did, as “official licensees” of the designs, they could have access to actual Lockmart files, blueprints, art, documentation, and marketing help, which could in theory make their product way more popular with modelers and lucrative. And other makers would be prevented from competing with similar designs.

Except Lockmart never gave them any of that stuff, took their money and never called back… The company eventually just dropped making any WWII American planes, just Axis “bad guy” planes. Protests to Lockmart reached a guy in the upper management who was appalled by this and checked it out. The lawyers that started this were not lockmart company lawyers at all, but an outside firm contracted to help police any and all copyright violations on a fee per case discovered and prosecuted basis. Basically bounty hunting. The legal mess is still in process, Lockmart refuses to make exceptions for kids flying models of planes originally built with US tax dollars in 1947, even stuff they never made at their company, but was once made by a company Lockheed bought up or merged with.

THAT’s how crazy the situation is; We’re still fighting WWII apparently. We really need to go back and tweak the DMCA and all trademark and copyright laws under the next president, whoever that is. Make your feelings known. Write your congressman and representatives and favorite candidates.

[Mark Suszko]

Yes, well, I’m told my writing sometimes has that effect, Steve. 😛

I do really like the suggestion of teaming up with an established NAB exhibitor; if the products have some kind of synergy working together that’s quite the bonus, and it likely would be a little cheaper than going it alone your first year.

Still, I think that pyramidal strategy, touring certain key sites in key markets to build up some buzz first, or some variation on that, would help a lot. How hard that is to do, how intense you make it, has to relate to whatever the product is and the market segment you’re trying to hit.

[Mark Suszko]

In a message dated 2/23/08 6:10:20 PM, businessmarketing@creativecow.net writes:
“SO can anyone show me an example of a videographer getting taken to court because they filmed a school dance recital and sold dvds?”

From a fast google search:

https://www.news.com/2100-1030_3-6156021.html

and

https://biz.yahoo.com/ap/061117/myspace_universal.html?.v=7

Quote from another discussion thread via google search:
May 15th, 2003, 08:22 AM
“Rick, the problem is that the same law that protects the big bad recording industry also protects the little guy (you and me). I doubt you’ll see it that way until you’ve had something that you’ve created ripped off. Believe me it’s the same feeling as having your car stolen. I know because I’ve had both happen to me.

I was walking through JC Penny one day and saw a T-shirt with my photograph on it. I bought a shirt and contacted my attorney. The T-shirt creator had seen the image in a book and virtually copied it directly to the shirt (he took a couple of branches out of the background). To make a long story short, I got $10,000 for the image. I feel full justified in getting paid for the damages I suffered and am thankful there are laws that protect the little guys.”

Here’s another quote from the google search:

“My Voice, My Choice
Page 7 of 8

So, copyright violations are civil, not criminal. Even if I get caught, what’s the worst they can do to me?

First, while copyright violations are indeed civil and not criminal, new laws allow criminal prosecution in cases where over 10 copies of protected material and/or 2500.00 was transacted in the process of copying. So, if you make 25 copies of a wedding video, and you were paid more than 2500.00 for the shooting, editing, and delivery of that wedding video, watch out. Most attorneys will admit that this law is more or less untested at lower levels but it does exist and is a straw to be grasped by the copyright holder. [an error occurred while processing this directive]How long do copyrights last? Can I just wait for the copyright to expire and then use the copyrighted media?

Copyrighted works are generally protected for the life of the author plus seventy years, or in the case of works made for hire, ninety-five years from the date of first publication, or ninety five years from the year of its creation, whichever expires first. So, don’t wait up too long if the work you want to use is fairly recent in nature. You’ll be well past grey by the time it’s available. The term used to be shorter, but the Sonny Bono Copyright Term Extension Act changed all this in 1998. You’ve noticed that the local drugstore has signs that say “Cigarettes sold to those born before 1985 ? Similarly, due to the SBCTEA, the first year that all works enter public domain will be 2019, when works from 1923 become PD, or Public Domain.

I shoot a lot of dance recitals and then sell the videos to the parents. The dance instructor has since informed me that her dance choreography is copyrighted and I can’t sell the videos without paying her a royalty and obtaining her permission. She says I’m covered for recording the music and I believe her because the dance studio has an ASCAP sticker on the window.

The dance instructor is right in saying that the dance choreography is copyrighted. She is wrong in saying that you are covered for the music because she pays ASCAP or BMI fees. ASCAP and BMI cannot and do not issue sync licenses. Unless the music being danced to is Work For Hire composition, you cannot make reproductions of the dance recital, period, without a sync license issued by the copyright holder or their representatives. ”

…………
Those were all quotes pulled from the first quick search I did.

Okay, me again now.
No, I did not find you a specific case from that quick a search, then again I don’t have Lexis/Nexis or the specific legal case database access of a law firm. So I guess logically, that means you’re in the clear Ryan, forget everybody’s admonitions against it, go ahead, the bell and collar are over there, the litter box is over that-away… and the cat is nearby somewhere. You have absolutely nothing to worry about, we’re all just worry-warts cowed by nonexistent boogeymen…..you are much too small to ever be noticed or sued by anyone. And if they DID sue you, no law firm will EVER search the net for your real name in connection with this topic and all the advice that’s been traded over your inquiries. So you’re as safe as houses. Really.

We’ll just stand over here by the mouse hole with the silly cowards and watch and root for you from here. Just one question:

Can I have your stuff later?

🙂

[Mark Suszko]

Ryan, so you’re asking, if a guy is going to commit some kind of crime, grift, or tortable offense, using you to assist in it and enable it, but he writes you some kind of a “get out of jail free” note saying you knew what they were doing was against the rules but it’s all on him, you were just the getaway driver, and not to go after you in any way, some judge is bound to honor that? Doesn’t sound that great out loud, does it? Man, if I could just have one of those letters or marque like legal pirates used to have, huh?:-) ( I’m being playful to make my point, and not running you down, really, just pointing out the fallacies here and you’re not the first to ask that question, it’s a good question to ask.)

The crook or in this case copyright violator doesn’t have the authority in the first place to give you some kind of absolution or immunity. Which is what essentially you’re asking when you ask for a waiver of responsibility like this. How much use sucha thing will be in court is questionable, IMO.

(IANALawyer but did stay at a Holiday Inn Express)

Bottom line: You are a legal adult that made a free-will choice to do or not do something, for pay, the law assumes you know what the rules are before you do that. If you are part of the plan to make money off the copyright without clearance, I think you’re quite possibly in danger of
taking the fall with the guy if somebody sues.

But as has been suggested, maybe the dance school DID get the right kinds of permissions, and we’re all haring off in the wrong direction for nothing…

I’ve heard of that one-recording-only thing, but the way I’ve heard it from theater friends, it usually has to be erased at some point after its been used a time or two, or you’re in breach of contract.

Which makes sense if you think it through: all these people work very hard for long hours, usually without much advance pay to create the stage performance so you can come experience it live. To sell or give away copies to an audience is to rob them of the chance to do their thing more often, to discourage more people from coming out to the show instead, and by extension steals from the actors or dancers chance to make their money and their living from doing their thing. Even if it was legal, it doesn’t sound very moral.

Myself, I think I could be okay with shooting it for free just so the actors have a copy for themselves. I have done that many times for friends who have written and performed their own material so they own all the rights to start with. For me and these friends, the copyrights issues are moot.

[Mark Suszko]

Look, by no means do I claim the title of professional ethicist or legal counsel.

But a major rule of thumb to look at that has always worked for me is: “did any money change hands at any point?”

If it did, that’s the place to begin looking at liability issues. Anybody who turned over a buck in the perpetration of the copyright violation could potentially get dragged into the mess.

If the dance school charges tickets or admission, they are in trouble potentially because they got money in exchange for performing the work without all the clearances. If you say all you were doing was documenting the event, and you recorded uncleared music, and they paid you to record that, you may still be in some lesser amount of potential trouble, at least you’re going to get hit for the amount you were paid.

You may say that this is so unlikely as to be in the category of lightning strikes. Fair enough. But I remember an incident that was relatively famous. A New Jersey corner bar owner had Bruce Springsteen on his jukebox. An ASCAP guy stopped in to have a brew. Next thing you know, the bar owner gets a CAD letter from Bruce’s attorneys. A local theater recently was having public audience sing-alongs to a popular TV show (the all-singing episode of Buffy The vampire Slayer, a show that’s not even on the air any more) just as a goof and a fun charity fundraiser. Killed by the Fox Network and production company, the charity barely got away with being able to keep what had already been raised. An Italian restaurant had “Sopranos Night”. Cancelled by lawyers. Same with another such place playing Sinatra over the PA.

Nowadays, there are any number of people that would like to make a fast buck turning in violators for a bounty. Or what if some lawyer or paralegal in the audience gets miffed that his 200-pound daughter Elsie didn’t get the lead in the Swan Lake bit, had to settle for being in the chorus, and decides to anonymously turn in the school as revenge? You think things like that don’t or can’t happen? You can bet on human nature, friend, it can and does.

I read in some music magazine a while back about a guy that made a demo video for one of the big music expo shows to demonstrate some product, and he used uncleared Pink Floyd music for the big screen, big sound system demo. Guy comes up to him at the trade show and hangs around a bit, making admiring comments here and there about how nice the music seemed to cut with the images. It was David Gilmour. AWKWARD!

Okay, so you’re not making any demos like that. What about stuff for your OWN demo reel though? Do you think showing clips with the uncleared music is going to impress a prospective boss? Or show him you don’t know what the score is professionally. Meh, maybe it won’t make a difference. Then again, it might. Feel free to call me over-anxious on this. When you get to my age, and have more to lose, lots of things that are minor risks end up being less worth taking, from hanging out of Jet Rangers with no safety line, to betting my income and savings that somebody with an axe to grind will not take the time to rat me out to some corporation with a lot of money and legal resources I can’t afford to fight.

Hate it? I do too. Defying or ignoring the law is not the answer here; the answer is to change what’s wrong or unjust or plain impractical in the law. Make your legislators aware of your problems and feelings about the state of copyright in this country. Tell them we need some intermediate step, maybe something like the system in Australia that basically allows wedding video makers to use the copyrighted songs in limited ways for a reasonable flat fee and no 9 months of paperwork and contacting different rights holders who each have different rules and amounts they want. We need some kind of middle ground that respects and preserves copyrights but reduces the more ridiculous barriers and threats of lawsuits. Right now, media company lobbyists like Disney and Sony run the table on how the laws are made and whom they serve. You need to start talking to legislators as voters, as an industry, as a constituency needing remedy. An election year is the best time to get their attention.

[Mark Suszko]

I won’t ask what you’re making. Let me make up an imaginary example though, to create a point of reference.

Something that would probably sell well in that market space you’re talking about could be an affordable, portable, and easy to use motion control rig. Not quite a technocrane, but something that was good enough that you could shoot repeatable accurate motion moves in the field for post-roto’ed stuff like Michel Gondry does. For example, you shoot a motion pass with your actor/ music video singer walking thru a scene, then they leave and the crane shoots an identical motion pass of a “plate shot”, and any number of other identical passes where you have other things going on. That all gets sandwiched in post to create a very complex and rich composite. Used in music vids, commercials, some theatrical SFX. This is something most companies and individuals would rather rent than own outright, I imagine, so your real marketing target, I think, is to get lots of rental outfits, and a few SFX specialty production companies, to line up and buy one.

With that as the preface, I would look at a couple things to try before going to NAB. I would make a tour of the top five market cities demoing the new toy at the most prestigious rental shop in each market, and maybe offer each one a week’s use of it. I’d promo the hell out of that using the internet forums and places like the COW, plus a few key printed magazines. I would hit a couple of the regional shows with the unit, and maybe a film school or two, then generate more marketing materials and buzz with the results and user feedback from those exposures.

With that base in place, I would then look to a debut in the smallest NAB booth you can get. It’s a pyramidal strategy, with each tier feeding into and funneling interest into the one above. If your product is thought of as a story, we’re creating an arc to that story, timed to peak when you finally make the NAB debut. This, to my way of thinking, will be more successful than appearing at The Big Show cold, out of nowhere. Though once in a while you WILL see somebody do just that and get a big buzz over a little gadget, I think that’s more an exception than a rule.

[Mark Suszko]

I’m with Ron on this one.
If you’re really a businessman, I can’t imagine why you would take this kind of risk regarding copyrighted stuff. While it is true you are a very tiny fish in a very large ocean, when/if you get caught, the hook still hurts just as bad. The stakes could be your gear, your car, your house. Or you could get off with a warning. You just can’t know.

I did stuff like this when I was young, reckless and stupid and the law was less clear and there was less enforcement and no internet, so I was much more anonymous. Today, the risk is small but not one I’d be willing to take.

On the other topic, the easiest way to lose money on these kinds of projects IMO is to take on the sales and collections yourself, or lay out a lot of time and expense then wait hopefully for sales to dribble in in small drips and drabs. You’ll go broke. My suggestions are:

Get your money up front for your time and materials. Then you can wait around for extra dub order money later, but don’t expect a lot of orders after the initial surge, because you will lose a significant amount to piracy. Not to mention, the buying audience for recitals is usually pretty narrow and limited to friends and family.

Establish a minimum pre-order amount, calculated so you will make your expenses and a profit, and nobody gets advance copies, they all go out the same day. If there are not enough advance orders to make this worth your while by the deadline, don’t take it on.

Make collecting the pre-orders the client’s problem (or one of the alpha stage mothers who has a kid in the show). You can’t afford the time to chase down these sales one by one. The client/ user community buying your product is the best resource to police the copying/piracy issue if you make it in their interest to prevent it, they have the connections and peer pressure to enforce it for you. Back when I was briefly in the video yearbook business, I saw this: the kids would pool their lunch money to make one, lousy, stinking order, knowing they were going to pirate dozens of VHS copies off the one master, later.

You can’t beat pirates; like car thieves, you can only make it unprofitable or too time-consuming to steal with a view to re-sale. If a pirate can buy one for $30 and make dubs for $2 each and sell those for $20, he will. He’d even sell pirate copies for ten, if there was enough volume to make it worthwhile. But, if you sell the originals for ten bucks or less, he’s not going to see enough margin in it to make it worthwhile to sell such a low volume. he’ll pick a fatter target. Trick is, can YOU make any margin at the per-unit price? If the DVD is mostly underwritten by sponsors or advertisers, I believe the answer is “yes”.