Jump to content

Client refusing to pay balance.


Jack Norflus

Recommended Posts

" Well this dog isn't going to "

mechanics lien, and / or small claims court.

According to the attorney I have no rights to a mechanics lien.

My plan is a letter from the attorney. My hope is the letter makes her realize that I am serious enough to presue this matter and sends me my money to make me go away. If not file with small claims court or go through collections.

Link to comment
Share on other sites

  • Replies 104
  • Created
  • Last Reply

Top Posters In This Topic

Its been 6 months and its the principal of it now.

How many people has she screwed over in the past? Not sure but my guess from her attitude and the way she has been dealing with this is I am not the first.

Will I see the money? From what I am being told its unlikely.

But I will make sure that she knows that I don't take crap from no one. This dog isn't going down without a fight.

 If you need any backup from NYC folks let us know. We'll be more than happy to go to bat for you. (or, perhaps, bat someone)

Link to comment
Share on other sites

Jack, as a fellow NY'er, I'm curious who this "She" is.

Also, how did she find you in the first place? Were you referred by someone else (another soundie?).

e.

I was hired by the DP who was referred by another DP. The guy that hired me thought that the guy who refereed him actually had a relationship with her because she made it seem that way when she spoke to him.

It turns out that nobody that we know actually ever worked for her.

And unfortunally according to the lawyer at this point I cant publicly give her name or her company's name - by the way I found out that her company goes under three names that I know of and possibly more.

When the dust settles I do plan on posting her name where ever I can.

Link to comment
Share on other sites

First..  I am not a lawyer, but I have spoken to one when I was in a similar situation.

 

You can always, as Harber says, state your personal experience including the name of the client who has not paid you.  You will not lose in court for that (of course they can sue you, but their case will be without merit).  If they owe you money, they are super unlikely to spend money filing that complaint against you as well. The only exception I know to this rule is if they actually are themselves a law firm.

 

Even if you do not have a mechanic's lien, you still hold copyright to the sound recording.  You can register that copyright, which has existed in your name from the date of recording.   Then you can notify them that you plan on filing for their infirnging use of your copyrighted material.

 

It's a big fine, as it is federal, not local.... as in "up to $250,000 and 5 years in jail"

 

In the sub nuclear options.. hire a collection agent.  after notifying them by certified mail of your intent to do so, and your intent to charge them the costs of that agent.  You do not need a court judgement to hire a collector.

 

In a sidebar to that. If you do go to court, you are absolutely allowed to post that you are plaintiff in a suit against "x"  seeking result "y."  That's public records stuff..

 

Oh.. you can also report their company to the major credit agencies.  Also to Dunn & Bradstreet..

Link to comment
Share on other sites

You know this already, but commercial small claims court is your recourse. You will likely get interest on the claimed amount. Then take the judgement to an NYC Marshall. If you have a check from them already then you know where their bank account is located.

Link to comment
Share on other sites

If you really want to nail her arse, register a copyright for the work. Takes only a few mins and is like $35 bucks. All done online, it's super simple. I file work there daily, here is the shortcut.

 

You own the copyright as soon as you press record button, simply put it's your work (unless you signed a contract stating otherwise).

 

Next, you need to fire the client for non payment. A simple call will do, but a certified letter is better.

 

Next wait until they use the work that you have the registered copyright for, then it's check. Be sure to make a reference of where the work has been used and contact a good copyright lawyer.

 

I promise you will own her behind. Each time they use your work is an infringement and a separate count. Remember, the only way you get any real money is to have the registered copyright in hand before you file suit. If your work is not registered before you file infringement, you get close to nothing.

 

The copyright lawyer will send a letter demanding they stop using the work and basically ask them if they would like to settle (for a Huge Amount of Money).

 

Jack I am telling you, I have had my work infringed and this is exactly what happened. These days I register everything (everything but contract work)  and pray a big company is stupid enough to use my copyright protected images. 

 

Did you sign any sort of contract stipulating you have no rights to claim the work? 

Link to comment
Share on other sites

Well, I am a photography and lighting instructor, a 3d motion graphics artist, a ham radio operator, gun builder, an audiophile who worked in the 12 volt car audio industry for 10 years then converted to high end home audio building SET tube amps and extremely efficient driver enclosures, a pilot, an aspiring videographer who teaches Photoshop and Lightroom that just took the plunge into the world of professional audio.  My name is Thomas Shue,  my blog is here and I am a man of my word!

 

Sorry to throw it all out there like that, but this is who I am. Please do not see this post as braggadocious. I was simply trying to consolidate who I am into a ridiculously long run on sentence ;) without hijacking Jacks thread.   So there it is.   AKf

Link to comment
Share on other sites

You own the copyright as soon as you press record button, simply put it's your work (unless you signed a contract stating otherwise).

You own the copyright as long you are not an employee (permanent or temporary) or have signed a contract that the stuff you're doing is "work for hire".

Link to comment
Share on other sites

" register everything (everything but contract work) "

that's a big "but".

I suspect it is a work for hire, but when  the hired hands are not properly paid...??

 

That's exactly what I was wondering. As work for hire who has not been paid, would the tips that Thomas Shue is giving still work?

Link to comment
Share on other sites

Copyright would still apply if he hasn't been paid - that is the other half of the contract. If they haven't lived up to their side by paying, then the contract has not been honored and they are in violation of it.

 

As such, any profits they might make from that unpaid work are fruit of the poisoned tree. I can't understand where the lawyer would say you don't have legal right to a mechanic's lean on the work. I would get a second opinion on that.

 

Was there a written deal memo or contract paperwork?

Link to comment
Share on other sites

That's exactly what I was wondering. As work for hire who has not been paid, would the tips that Thomas Shue is giving still work?

 

 

Here is a link to some information and laws about, "Working for Hire".

 

In order for you to be, "Working for Hire" there are very specific rules that apply. Lets say you are hired as an independent contractor, there has to be some sort of signed contract specifically stating you are, "Working for Hire".  Only then, you as the creator, will have no rights to copyright unless you stipulate (I will elaborate). You will simply be known as the Author.

 

Now, If you do not have a contract that stipulates specifically that you are, "Working For Hire", then the client is in violation of copyright infringement if they are using your work. And as I stated before, if it's a registered work, oh baby, it's on. I say this because it's your legally copyright protected work and you can sue the hell out of them.

 

I said I would elaborate, so here goes. Lets start off with a little CYA. 

 

If you are going to sign a "Working For Hire" contract, always explicitly place a condition of any assignment or license of copyrights to be contingent upon full compensation.  You know, the compensation due to you under the contract. It is so very important to make sure that legally your copyright does not and will not transfer until you are paid in full.

 

Here's the bad news. Let's say you sign a contract, a, "Work For Hire" contract and you do not stipulate that the copyright assignment or license is conditioned on payment in full, the courts in the past have held that the rights under copyright were already effectively transferred when the contract was signed. This basically eliminates your ability to file a claim stating that use of your recordings without payment is copyright infringement. 

 

Instead of copyright infringement, you will have to claim and file a breach of contract to get paid. I did research breach of contract, and unlike copyright infringement, breach of contract does not entitle you to an injunction that will prevent further use of your work, or award statutory damages and attorneys fees. You must always stipulate, but remember, it works both ways, if they didn't stipulate that you are, "Working For Hire" in the actual contract, they have no contract or rights to your work.

 

Placing conditions for the copyright assignment upon full payment is a huge insurance policy.  If they fail to meet up with their end of the contract, they are in breach and you can fire them. If you have not been paid, the contract has not been fulfilled and thus any assets such as your copyright protected work are yours the same way as they were the very second you pressed record.

 

Alas, I am not armed with all the details about Jacks situation, so I will let you know a little about, "Works For Hire" when you are not a regular employee. 

 

"Copyright law protects a work from the time it is created in a fixed form. From the moment it is set in a print or electronic manuscript, a sound recording, a computer software program, or other such concrete medium, the copyright becomes the property of the author who created it. Only the author or those deriving rights from the author can rightfully claim copyright. There is, however, an exception to this principle: “works made for hire.” " A Direct Quote from the Copyright.Gov Website
 

Under the current statute, there are only two ways that the, "Work Made For Hire" doctrine can apply to recordist, (is recordist the correct term for a sound guy?)

First , if you are a regular employee, your employer will own any work you do within the scope of your employment automatically as work made for hire.

Second , if you are not an employee, your client can own your work as work made for hire Only If:

1. Your client specifically ordered or commissioned your work;

And

2. Your work was commissioned for use as one of the following:

a contribution to a collective work 

a part of a motion picture or other audiovisual work 

a translation 

a supplementary work 

a compilation 

and a bunch of other stuff...

And (The Biggie)

3. Your contract with your client explicitly states that your work is a “work made for hire.”

 

Man my head hurts but I hope you guys/gals can follow along with my poorly constructed words. I tried make it as clear as possible in the hopes that this might be helpful to others in the future. Lastly you may find this interesting. Sound Recordings As Works Made For Hire  it's a document I found while researching on the Copyright.gov site.

Link to comment
Share on other sites

Copyright would still apply if he hasn't been paid - that is the other half of the contract. If they haven't lived up to their side by paying, then the contract has not been honored and they are in violation of it.

 

As such, any profits they might make from that unpaid work are fruit of the poisoned tree. I can't understand where the lawyer would say you don't have legal right to a mechanic's lean on the work. I would get a second opinion on that.

 

Was there a written deal memo or contract paperwork?

Sorry, thats not how it works. He is either under contract as, "Work For Hire" and if so they are in, "Breach of Contract" for not paying him. If  he is not specifically under contract, "Work For Hire", then they are in serious violation of copyright laws if they happen to be using the work. Remember If the work is registered he can sue for all kinds of damages, not registered then he can sue, but a copyright lawyer won't likely take the case because there is no money besides fees for him. Sad money driven world, isnt it? Just Pay Jack. I am going to make a T-shirt.

Link to comment
Share on other sites

Here's an addendum to the above. Someone correct me if the laws and court findings (the ramifications of many statutes remain unknown until case law is established by specific court rulings ) have changed any of the following:

There is more than one copyright that applies. In this case, two of the most applicable ones are:

1. The person creating a work (that guy telling his story into the microphone),

2. The physical recording itself.

If you were to actively pursue the copyright avenue, your case could be undermined by laying claim to a copyright that they have a signed release for (from the guy who talked into the microphone).

As far as copyright damages, there are three main types that could be collected. As of the last time I checked (it's been a while), without a registered copyright, the most you can expect to collect for in court is "actual damages.". That is something you would need to be able to prove, and in this case, wouldn't likely amount to much, if anything.

If you hold a registered copyright, you can potentially collect for: 1) actual damages, 2) punitive damages, and 3) legal fees.

IANAL-- ADWTBO

Link to comment
Share on other sites

Here's an addendum to the above. Someone correct me if the laws and court findings (the ramifications of many statutes remain unknown until case law is established by specific court rulings ) have changed any of the following:

There is more than one copyright that applies. In this case, two of the most applicable ones are:

1. The person creating a work (that guy telling his story into the microphone),

2. The physical recording itself.

If you were to actively pursue the copyright avenue, your case could be undermined by laying claim to a copyright that they have a signed release for (from the guy who talked into the microphone).

As far as copyright damages, there are three main types that could be collected. As of the last time I checked (it's been a while), without a registered copyright, the most you can expect to collect for in court is "actual damages.". That is something you would need to be able to prove, and in this case, wouldn't likely amount to much, if anything.

If you hold a registered copyright, you can potentially collect for: 1) actual damages, 2) punitive damages, and 3) legal fees.

IANAL-- ADWTBO

John, you bring up a good point about the two separate copyrights. That is how it works in music, perhaps it is similar for our work.

However, based on my understanding (disclaimer: which could be wrong!) I believe those copyrights act independently and can be owned by separate entities at the same time. Also, I believe an infringement claim on just one of those copyrights does not have to affect the other.

In music, the performance copyright is filed under form PA and covers the underlying composition, words, lyrics, music, etc. Usually, the publisher and songwriter share this ownership. In our work it is probably a different form but would be owned by the script writer, or person on screen improvising or otherwise creating/providing the intellectual content. The release form/work for hire signed by the performer/creator transfers this copyright over to the producer/client.

The sound recording copyright (form SR) is separate and covers the physical recording. This is typically owned by the record label (but first owned by the recording engineer until he is payed as per the work for hire contract) I believe this very much applies to us in the same way.

In the music world there certainly can be a copyright violation involving just one of the two copyright owners and not the other. I would think that in our world there could be all sorts of valid copyright claims for a given project if certain people were not paid as per their work for hire agreement states.

Again this is all conjecture based on a handful of music business/law courses in college (which was clearly not my major).

Link to comment
Share on other sites

...

However, based on my understanding (disclaimer: which could be wrong!) I believe those copyrights act independently and can be owned by separate entities at the same time. Also, I believe an infringement claim on just one of those copyrights does not have to affect the other.

...

 

I agree with you and your point.  I wasn't meaning to imply otherwise.  My comment meant to address, that if a claim were filed, it needed to be the proper claim.  We may own rights to the recording, but not the content.

 

 

...

Read towards the bottom of page 1........  "Sounds accompanying a motion picture or other audio/visual work are not defined as sound recordings..."

 

However, when we capture it, it's not yet a motion picture, etc, but is, at that point, a sound recording.

Link to comment
Share on other sites

I agree with you and your point.  I wasn't meaning to imply otherwise.  My comment meant to address, that if a claim were filed, it needed to be the proper claim.  We may own rights to the recording, but not the content.

 

 

 

However, when we capture it, it's not yet a motion picture, etc, but is, at that point, a sound recording.

So....  as long as it has not been paired via edit...  your OK... Once they put them together.... who knows... ::)

 

 If you have not been payed, chances are... it's some sort of motion picture... probably more than two weeks at least has elapsed...

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.


×
×
  • Create New...