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Withholding Audio Files

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Out of curiosity, how many mixer have withheld audio files from Production in order for a wrong to be corrected?

 

For instance, Im on a shoot. For which I was solidly booked for 5 days for over a week in advance. Production calls wiithin less than 24 hours to cancel the first day by saying they sent out an email and had my email address incorrect. (But had a text message with my correct email written out)

 

I talk with the local cam op, and he tells me they have him the same excuse. ( but had emailed him previously.) Production then decides to cancel the B Cam, PA etc for the last day of the shoot through an email at lunch the day prior...

 

But sends out a call sheet to the entire crew (including the crew that was canceled on) with listed calltimes for the entire crew but me. I emailed the line producer and got a call sheet back with me on it and the other crew removed.

 

Anyone had any success with the threat of withholding audio? It’s the only leverage I have.

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I've generally only hold files if I know I'm not getting paid what was agreed before. I've had a producer not pay and then asked for a pickup day like 2 months later. I jumped at that chance since I had already given him footage from before. 

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It's not entirely clear, from your post, what the whole context was? Have they actually said they're not going to pay you anything for the cancellations, have you negotiated? I'd do that first, before escalating to an all out stand off, where potentially the legal profession becomes involved, burning too many bridges too soon is possibly not the best strategy.

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They did tell the other crew that they were not going to pay them for todays cancelation. Which I’m assuming means they are planning not to pay me for the cancelation from earlier this week.  

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Some in Europe operate using the following duration before job cancellation, payment scheme -

1 day =100%, 2 days=75%, 3 days=50%.
And put this in their terms and conditions sent before the job.
Which seems fair.
For commercials this applies -

Fee cancellation calculation (crew confirmed for shoot days only and no prep days):

7 and more days prior to the engagement – no calculation fee applies

6 – 4 days prior to the engagement – 50% of the agreed fee
3 – 2 days prior to the engagement – 75% of the agreed fee
On the day prior to the engagement –100% of the agreed fee

 

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Can't assume.  On big jobs that aren't strictly unionized often everyone has a slightly different deal.  I say this because withholding their audio files is a bit questionable legally.  I found this out after doing it on a movie ("Salvador") many years ago and the result was some tense moments and the pain in the ass of carrying around a week's worth of 1/4 " x 7" reels of audio tape (that had no back up) until there was a resolution.  In this case it was actually the grip+electric folks that asked me to do this, since they had nothing to with hold. In other cases the resolution came much faster, after I just sat in my car with my recordings for awhile and let others with bigger personalities fight the fight. 

 

I encourage you to talk directly to everyone involved--fellow crew, producers etc and see if there can be an acceptable resolution without a flurry of crossing emails or lawyering up.

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26 minutes ago, Philip Perkins said:

Can't assume.  On big jobs that aren't strictly unionized often everyone has a slightly different deal.  I say this because withholding their audio files is a bit questionable legally.  I found this out after doing it on a movie ("Salvador") many years ago and the result was some tense moments and the pain in the ass of carrying around a week's worth of 1/4 " x 7" reels of audio tape (that had no back up) until there was a resolution.  In this case it was actually the grip+electric folks that asked me to do this, since they had nothing to with hold. In other cases the resolution came much faster, after I just sat in my car with my recordings for awhile and let others with bigger personalities fight the fight. 

 

I encourage you to talk directly to everyone involved--fellow crew, producers etc and see if there can be an acceptable resolution without a flurry of crossing emails or lawyering up.

 

Wow! Philip 'Salvador' 1986, you bravely stuck your neck out there, it must have been bad...?

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There are occasions when even the most drastic avenues of redress are appropriate but I don't think that failure to pay for a day not-worked because of a late cancellation justifies such a drastic response. Withholding production elements is a "nuclear option" that I think should be reserved only for failure to pay for work actually performed and, even then, only when there is evidence of bad faith.

 

Withholding files has teeth because the material is fundamentally important to the producer but it can also be an action that prods the producer to respond vigorously. The legal right of a technician to withhold is not at all clear in many situations. While union contracts typically have a provision of pay for late notice cancellations, they do not extend ownership of the work product to members; rather the dispute is subject to a grievance procedure. If you have a contract with the producer, you may have rights giving you a mechanics lien but, in my experience, that sort of contract is unusual. Rather, most deal memos I've seen refer to the agreement as "work for hire" and the resulting files as "work product."

 

However the dispute might play out, the money involved isn't worth the blood pressure elevating stress. You may argue your claim with the producer and regard the company's failure to offer a reasonable compromise as a breach of good faith. You may also share your disappointment with others (although I wouldn't post that disappointment on a public site) but I wouldn't recommend getting in a serious fight over it.

 

David

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Even back during that dispute on "Salvador" I was really nervous about my liability while I held on to several days of production sound, and that was around comparitively stable and non-fragile 1.5 mil 1/4" tape.  Please be very careful with those audio files no matter what you decide to do....think of the cost of a reshoot if something happened to the files and it was determined to be your fault....   This is another reason to get onto a workable solution ASAP.

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I must admit that I did just once many years ago!

I recorded a tax dodge film in Queensland Australia.

The producer (now deceased) was a very grumpy man.

Late in the shoot he closed our hotel account and flew back to Sydney.

The dear director instructed to us the eat and drink what we wanted

so we carried on to the bitter end on Lindeman Island.

I travelled back to Sydney to find no recent payment in my bank account so

I flew back to NZ will all the production audio (on tape).

Some time after Christmas I received a polite message from the producer asking

for the material so I suggested that I would do all the sound transfers here and

that enabled me to add another $1000 to the final invoice!

Invoice paid and I sent the all the audio to Sydney.

Sadly now we have to deliver on a daily basis but I guess if an invoice is not settled

us sound folks still own the mechanical copyright and could legal settle.

 

mike

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When it didn’t look like production was going to pay at the end of a shoot, I quietly packed up and proceeded to go home, after two weeks of shooting on location. About a week went by when I received a call from a producer asking for the audio. I politely told him that I’d be glad to give them the files once I’ve heard from everyone in the crew that they had received payment in full and all cheques cleared. They weren’t happy about it but it happened and everyone got paid. I’ve had other smaller issues but this was the biggest. Two weeks of audio, their DIT never asked for anything from me at the end of each day, and the director and producer were too inexperienced to make sure that they were getting their footage. They didn’t even ask for a comtek the entire time. That’s a lot of faith to put into someone that you are planning on ripping off!

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This has always been my worst fear, but I have never experienced anything negative. If someone backed me up how you are describing I would be grateful. It is a risk but at the end of the day, your not being greedy, your being a leader. 

 

I like the idea of a basic services contract being signed by production in addition to the email discussion, but if you end up getting stiffed; small claims court in CA is your recourse. I advise best to stay away from situations where non payment is even remotely possible. 

 

You guys have some great stories. Holding the 1/4" tape reels for the grip is my favorite, way to backup your crew. 

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How about creating and delivering lo-res mp3 files for the client with the understanding that the originals will be provided once payment is resolved?

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Only once on an indie.  Production felt very, *ahem*, sketchy from my first day on set, and DIT never asked for anything so I quietly held onto everything. Crew was supposed to get paid on the last day and only a handful actually got paid, I wasn't one of them.  So they got 2 weeks past wrap, realised they didn't get any audio files from me.  Tired to convince me to transfer them immediately and the would pay 'soon' Haha.  Ended up meeting in person to exchange files and payment. Turned out fine.

 

But it's like half depressing the trigger on a bomb, only to be used as a measure of last resort.The key is to not announce your plans ahead of time to hold media until payment, just quietly go about your business until they realise they're missing the stuff and come knocking.

 

Not something I would do for cancelled days though, that's a completely different ballgame. Did you have a cancellation policy in the contract? Or at least one in writing somewhere like a website or email exchanged with the client? Without anything written somewhere I can't really see many options. Had a client cancel a couple weeks ago, the day of, with crew already at location, then tell me they wouldn't do the 100% cancellation fee because they didn't feel it was 'fair'. I only got paid because it was in my contract (which they obviously didn't read).  Some of the other crew unfortunately had no course of action. 

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No contracts on small jobs just email agreements

 

I think my

"Sadly now we have to deliver on a daily basis but I guess if an invoice is not settled

us sound folks still own the mechanical copyright and could legal settlement"

idea is the only leverage

 

mike

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7 hours ago, Jeff Hall said:

How about creating and delivering lo-res mp3 files for the client with the understanding that the originals will be provided once payment is resolved?

IDK, 

Interesting idea, but some clients don't know the difference... They might use it

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1 hour ago, Jim Rillie said:

IDK, 

Interesting idea, but some clients don't know the difference... They might use it


If they're the kind of people who don't care enough to pay for the work, they'll most certainly use low-res .mp3s in the final product.

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3 hours ago, Jim Rillie said:

IDK, 

Interesting idea, but some clients don't know the difference... They might use it

 

OK, then 8-bit/22.05KHz wav files. That'll get 'em!

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8 hours ago, mikewest said:

No contracts on small jobs just email agreements

 

I think my

"Sadly now we have to deliver on a daily basis but I guess if an invoice is not settled

us sound folks still own the mechanical copyright and could legal settlement"

idea is the only leverage

 

mike

This is true. The person who pushed record is the owner, unless waived in contract. Same thing with pictures on a phone, the person who took the picture is the owner, thats why your 40 page agreements to social media are auto sign, so you auto waive your rights. Don't even get me started on watermarking audio files. 

"Some releases on Whitelabel.net use watermarking technology to embed a log ID into the audio data of tracks that you download.

The log ID is transparently interspersed into the high quality audio portion of .wl.mp3 files and has no audible influence on the sound quality of the files.

The log ID can be extracted from the audio data and can be used to tell us who downloaded the track. This provides us with a mechanism to determine if someone has leaked a Track onto file sharing networks or is using some other means to distribute the track in a way that violates the Whitelabel.net User Agreement.

Every download of a watermarked track contains a unique log ID. The log ID is simply a number - it contains no personally identifying information. If a 3rd party were able to extract the watermarked log ID from a Whitelabel.net track it would simply reveal a number and is, in itself, meaningless without access to Whitelabel.net download logs.

Only Serato and record labels who release watermarked tracks have the ability to determine who downloaded a track via the watermarking technology and Whitelabel.net download logs."

 

5 hours ago, Ilari Sivil said:


If they're the kind of people who don't care enough to pay for the work, they'll most certainly use low-res .mp3s in the final product.

My thoughts exactly. I can't tell you how many times I have heard low res digital artifacts is finished projects and on TV. 

 

 

Two Idea's I have are concepts that AVID ProTools uses a ILOK USB dongle to unlock their plug-ins, and RANE Serato SL3 uses their hardware as the only interface that will allow play of their downloaded Whitelabel MP3's otherwise without the hardware interface they play at 32kbps. "Whitelabel.net uses a custom file format: Whitelabel MP3s (file extension .wl.mp3). These files will play as a low quality preview in any MP3 player, and a high quality version within  Serato DJScratch Live and ITCH software. The Whitelabel.net format files are specially prepared for use in Serato DJScratch Live and ITCH - they have had their overviews built, they are tagged with song and artist info, BPM, and album art where possible. Audio quality is equivalent to a 320kbps MP3 when played in  Serato DJScratch Live and ITCH software. 

 

 

 

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As far as work for hire/contractor agreements:

 

Spoke with an entertainment attorney today, and the official recommendation (without having specifics) is to file/issue the production co. a cease and desist letter which lays out that they haven’t fulfilled the contract terms and therefore copyright remains with you (the Recordist/creator of the work) and they have no right to use. That opens the door for further legal remedies, all the way up to being able to prevent release of the project until contract terms are satisfied. 

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1 hour ago, JWBaudio said:

As far as work for hire/contractor agreements:

 

Spoke with an entertainment attorney today, and the official recommendation (without having specifics) is to file/issue the production co. a cease and desist letter which lays out that they haven’t fulfilled the contract terms and therefore copyright remains with you (the Recordist/creator of the work) and they have no right to use. That opens the door for further legal remedies, all the way up to being able to prevent release of the project until contract terms are satisfied. 

This was my understanding. Thank you for clarifying. I know legal advice is not cheap or easy to hear. 

 

You know who else was big into this kinda legalese and contract negotiation,

 

George Lucas. 

 

We all know how that turned out for him. 

 

IIRC he only took rights for merchandising from Star Wars. Lucas basically got rich off of action figures and lunch boxes. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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On 4/14/2018 at 2:17 PM, Dalton Patterson said:

This was my understanding. Thank you for clarifying. I know legal advice is not cheap or easy to hear. 

 

You know who else was big into this kinda legalese and contract negotiation,

 

George Lucas. 

 

We all know how that turned out for him. 

 

IIRC he only took rights for merchandising from Star Wars. Lucas basically got rich off of action figures and lunch boxes. 

There was a presentation in Chicago on entertainment law (w/ focus on filmmaking), so figured it would be a good time to pose the question, since it's one a lot of people seem to have.

 

Legalese and contract negotiation can drive people crazy, especially if you or production is being a stickler on phrasings and comma placement, but I figure it's better to have everything on my end as 'correct' as can be - and on paper, incase it's needed later, especially dealing with things like payment/credit.

 

And yup.  Made a killing on merchandising. 

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