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Broken gear on a shoot, production won't pay!

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Had unfortunately some gear break during a three week long feature film, wasn't too worried as the producer had said to me prior to coming on board and several times during the shoot itself that everything is ok as they've got insurance for all gear on the shoot so that everything is covered. Plus it is just normal procedure, if production ends up breaking some of your gear that you're renting to them then it is only natural that appropriate compensation for you is considered. 

 

Welllll.......  now I've sent my invoice, he won't pay a penny for damages, won't even talk about it as a possibility. He won't even admit there exists any kind of purely hypothetical world with ANY scenario where the production should have even the smallest piece of responsibility.  Wow. 

Good grief, when he won't even agree with the broad principle then how can we even get onto the specific details of discussing exactly what he owes? (although I feel like I've already been quite generous in erring to the lower side when evaluating the figures to put in my invoice)

 

I feel like I'm at an impasse here, we've had multiple emails and phone conversations with no real progress.

 

Anyone else with experiences of this, and tips to make him see the light? (I've tried pointing out I should be treated the same as any other rental house he got gear from, the fact I also own my gear doesn't make a real difference. Yet he thinks it is like if someone say gets their sweatshirt ripped or a wristwatch damaged, as they're merely "personal belongings")

 

Although I suppose there are always legal options I could take to try and chase up the invoice with the smalls claims court, or even using the fact I'd still retain copyright of my audio files (thus he can't use them) until I get my invoice paid in full. But I'd rather not take legal paths, unless I absolutely have to. 

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This has been well covered. You should of provided him with a rental form from you clearly stating the responsibilities of both parties in the event of loss or damage to any of your gear... This form I provide to each production BEFORE we shoot... and have them sign it. 

 It is a very thorough form.

  Then, there is no grey area...

Remedy if a court situation ever comes up is a no brainer for anybody involved.

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If the guy won't talk to you in person about that convo you had re: loss and damage before the job, like discuss the matter like an adult and present his (apparently different) view of what was agreed to, then your next options include legal action in what in the USA is called "small claims court".  But I would very much recommend giving this producer a few more chances to come around.  How much money are we talking here?  A few broken lav mics?  Lost Comtek rx?  A slate that got dropped too many times?  Or something more serious, like the loss of a recorder or a whole rig?   Did the losses in question happen when you were using that gear, or someone else?  Does it seem like it was all a random accident, or caused by inattention, laziness or other unprofessional behaviour?  You need to build your case...right?   I'm sure you will be told that you should have gotten that promise in writing, which is true, but now you need to figure out how to move on from here...

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14 minutes ago, afewmoreyears said:

This has been well covered. You should of provided him with a rental form from you clearly stating the responsibilities of both parties in the event of loss or damage to any of your gear... This form I provide to each production BEFORE we shoot... and have them sign it. 

 It is a very thorough form.

 

Oh yes, I've learned my lesson here to always get things in writing before embarking on a feature!

Would you be willing to share with me the form you use? (although of course I'm living in a different legal system, would be a good template starting point I could use)

 

11 minutes ago, Philip Perkins said:

How much money are we talking here? 


Not a massive amount, but also not a totally insignificant amount either. (a bit more than US$1K ish)

 

 

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I would love to, but mine is filled with company data signatures and names... I wish I had time to go in and eliminate all the data and leave you the form... but I just don't..  Maybe someone here has a more generic one..  

 

  Get in the habit of emailing it ahead of the show...  

best of luck..

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3 minutes ago, Philip Perkins said:

Did the losses in question happen when you were using that gear, or someone else?  Does it seem like it was all a random accident, or caused by inattention, laziness or other unprofessional behaviour?  You need to build your case...right?  

 

I didn't include stuff like a Hirose cable failing (they're not exactly cheap! Nearly NZ$200), as I just thought of that as "oh well, normal wear and tear?!"

Only put down stuff I regarded as the result of the fault of this specific production (if anything, maybe I was a little too generous! Didn't include a lav failing either, or a TX that still "works" but not the same as before....).

And I'm a very reasonable person, perfectly happy to enter in a dialogue of the details of each, it isn't completely impossible we could have reached a compromise other than the figure I arrived at.


However he won't budge at all, doesn't even accept that a world exists with any hypothetical scenarios (not even something outlandish and clear cut, such as an actor throwing a wireless pack off a cliff. His attitude? "You put it on him... still is your responsibility!") that would mean he needs to pay anything at all.

 

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Do try to communicate with this guy personally about how what might not seem like a big loss to him is to you.  I've never had any luck framing this kind of thing as a moral issue, more as something about my livelihood and a comparison to, say the camera rental or rental of vehicles for the show, where he was for sure responsible for damages.  If you do end up in court a judge is going to want to know how much effort you went to to get this guy to come around before you went legal on him: like the extent and manner in which he's blowing you off...   Is there anyone else with a similar issue with this producer?  Any witnesses to what you guys talked abotu?  Is there a chance, sorry to say it, that YOU misinterpreted what was agreed to?

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15 minutes ago, afewmoreyears said:

I would love to, but mine is filled with company data signatures and names... I wish I had time to go in and eliminate all the data and leave you the form... but I just don't..  Maybe someone here has a more generic one..  

 


Thanks, hopefully someone else can point me to a useful template. Or I guess I could just look at what local rental houses use themselves, and use that as inspiration.



What do you mean though by "company data signatures"?

How many pages long is your rental agreement? Is sounding fairly lengthy.
 

12 minutes ago, Philip Perkins said:

more as something about my livelihood and a comparison to, say the camera rental or rental of vehicles for the show, where he was for sure responsible for damages. 


Exactly, if they'd damaged the ARRI AMIRA they used or the full set of Zeiss PL lenses or etc.... then the rental house would expect payment too!

Wasn't just the nice camera department gear either, they had a full transit truck of lighting gear with the gaffer and a three man lighting team. While sound? My boom op kinda disappeared after the first couple of days, and I thus did it entirely by myself. This experience further entrenched my view I should at least ask for a boom op under me for each feature film. 

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About four pages.... Company name throughout, signatures, addresses etc...

 

Keep every email, try not to communicate with no way of (preserving) what was said... meaning, stay away from spoken phone calls unless you are legally allowed to record them in your state...

 

Agree with Phillip... try first to reason.... can't hurt... He may be hoping you "go away" ...  Some persistence may pay off...  When he discovers you won't go away, he may cave ... be polite but firm..

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12 minutes ago, afewmoreyears said:

About four pages.... Company name throughout, signatures, addresses etc...

 

 

Screen shots plus MS Paint would solve that in five minutes flat 😉

 

13 minutes ago, afewmoreyears said:

Keep every email, try not to communicate with no way of (preserving) what was said... meaning, stay away from spoken phone calls unless you are legally allowed to record them in your state...


In my country (New Zealand) it is not illegal in itself to record a conversation you are part of. (there might be tricky details around how you're allowed to use that recording, but performing the recording itself is never illegal. Because you're part of the conversation)

 

20 minutes ago, afewmoreyears said:

He may be hoping you "go away" ...


I don't think he is hoping I "go away"? As I hold most of his audio files from the feature film, as I'd told him from before the start that I'm to be paid before wrap (and so before transferring the files). I said this condition exactly because I didn't want to deal with the hassle of getting paid!! (as if I'm going to agree to work at a lower rate than normal, then being sure I'd get paid timely seems only like a reasonable request in return)

Yet here I am....  dealing with the awful dragging on hassle of trying to get paid what I'm owed. I should tack on an extra "annoyance factor fee" (oh wait... that is what a late penalty fee is! The weeks are ticking by). 

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In the USA the "annoyance" fee is interest on unpaid invoices.  That has to be agreed to beforehand, but that's why that interest charge is there: you aren't this guy's banker.  I'm not clear if you have copies of the production sound for this guy's film or you have ALL the production sound files--like you haven't turned anything over yet.   Do you have a contract or deal memo?   If so what does it say about "work for hire" and ownership of the work?  Having been in location-audio "hostage situations" in the past, a great paranoia of mine at the time was responsibility for what at that point were the only copies of that sound in existence, while negotiations were going on....be careful.  But holding the recordings until payment in full has worked for me on occasion.

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4 minutes ago, Philip Perkins said:

Having been in location-audio "hostage situations" in the past, a great paranoia of mine at the time was responsibility for what at that point were the only copies of that sound in existence, while negotiations were going on....be careful. 

That is why I have five copies 😉 In several places. (as obvious five copies on a single HDD is pointless, it is no copies at all! So I've spread their location out. North Korea could take out my office with a nuke and the audio would still survive)

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A signed rental agreement is the most important element establishing reciprocal responsibilities. (Sorry rub salt as you are now past that point but I state it for the benefit of others who may negotiate insurance certificates but fail to get the more important agreement.)

 

I have been using a very simple, one paragraph rental agreement in negotiations with producers:

 

Letterhead

[Name of Production Company]

Address

 

Date

 

 

[Name of Production Company] is renting motion picture sound equipment from [Your Name] for the production of “Show.” [Name of Production Company] acknowledges receipt of an inventory of the supplied equipment and pledges to assume responsibility for its safety and to provide insurance coverage at replacement value. Rental is expected to commence on [Date] and conclude on or about [Date].

 

Signed and agreed to by:

 

Position:

 

*******

 

I have had good luck in getting cooperation using this form. I wrote it after consultation with an attorney but it is not an attorney drafted agreement. That is, use with discretion and at your own risk.

 

The agreement states that the company acknowledges receipt of an inventory of gear. It is very important that you fulfill this part by sending an equipment inventory - a pdf attachment should be OK - prior to the job.

 

More directly to your predicament - if you do have an insurance certificate you may be able to press a claim directly with the insurance company, bypassing the production company. States in the U.S. generally permit this kind of claim but it may not be the case everywhere.

 

David

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42 minutes ago, Philip Perkins said:

Do you have a contract or deal memo?   If so what does it say about "work for hire" and ownership of the work?

 

At last, a glimmer of hope! As I've discovered a benefit (!!) of not having a written agreement, because the copyright sits with the person who pressed the red button (the record button that is! Least we get confused with my earlier comment about North Korean Nukes). It is only for commissioned work that copyright is with the client. Did we have a commissioning agreement in place beforehand? Nope.

 

 

9 minutes ago, David Waelder said:

I have had good luck in getting cooperation using this form. I wrote it after consultation with an attorney but it is not an attorney drafted agreement. That is, use with discretion and at your own risk.


Thanks, and yes I'd say the primary purpose of such documents is to avoid getting into a legal mess in the first place. And their mere existence is likely going to be sufficient to accomplish that in many instances. 

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I'd advise you to not think you can talk (to clients) like a lawyer if you aren't one.  An agreement beforehand is a good idea, but people and corps ignore or break such agreements every day, they aren't a panacea either.  For your situation I recommend persistence before legalities, since the damage is already done.  If you really are holding all the audio from the shoot someone will have to talk to you at some point.

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47 minutes ago, David Waelder said:

I have had good luck in getting cooperation using this form. I wrote it after consultation with an attorney but it is not an attorney drafted agreement. That is, use with discretion and at your own risk.

 

Thats why mine is 4 pages long...LOL..  Drafted by an attorney..

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I agree with Phillip, pleasant persistence is one of your best tools.  In my experience, threats will stop the conversation and not work.

If it was for more money I would suggest a quick call to your insurance company, as they may be willing to pay you for the damage and then go after the production companies insurance for reimbursement.  This has been the case with some colleagues of mine who have sustained losses on set.  However at $1k it is probably not worth involving the insurance companies.

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3 hours ago, afewmoreyears said:

Thats why mine is 4 pages long...LOL..  Drafted by an attorney..

 

And there's the rub.

 

Producers are often unwilling to sign four-page rental agreements. They may go along with complex contracts to secure a camera but balk at signing similar documents from others. One may persuade compliance on larger productions where legal consultation is readily available but getting agreement on smaller projects is often difficult.

 

I had fairly extensive discussions with my attorney to address exactly this challenge. (It helps to be closely related to the attorney, advice that I pass along in the same humor as suggesting that being born to rich parents is a career advantage.) The primary reason for the four pages of boilerplate, according to my counsel, is to articulate exactly how disagreements are to be settled. For instance, if the agreement declares that the producer is to pay for loss or damage, the contract may specify the exact timeframe for a proper settlement. These stipulations are very helpful if one actually must press a legal claim. But, the primary reason for the contract is to establish that a rental agreement is in force and the producer bears responsibility for safe return of gear. That relationship is established in the one paragraph document I posted.

 

As IronFilm wisely stated, a large part of the purpose of the agreement is to encourage responsible behavior and discourage "ghosting" a claim. Since these claims rarely involve a large sum (e.g. $50,000 or more) it can be difficult to compel compliance even with a valid contract if the other side is determined to be obstreperous and dishonorable. The simple contract should be sufficient to force settlement from an insurance company, even without producer cooperation, if there is a policy in force.

 

David

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2 hours ago, David Waelder said:

primary reason for the contract is to establish that a rental agreement is in force and the producer bears responsibility for safe return of gear. That relationship is established in the one paragraph document I posted

 

 

Thanks David!

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3 hours ago, Wandering Ear said:

In my experience, threats will stop the conversation and not work.

Exactly. Once lawyers and legalities get involved then all communications is breaking down. Which is why back at my first post I mentioned that is my *last* option, and why I'm posting here to get thoughts about other ways to approach this discussing before going down that path. 

 

3 hours ago, Wandering Ear said:

However at $1k it is probably not worth involving the insurance companies.

 

Exactly, not worth it to lose the no claims bonus and anyway once you subtract out the deductible (for each item, as the insurance company would treat each incident separately) there is nothing at all I'd get back. So it is pointless to even consider in my opinion. 

 

However, the producer did multiple times say to me (both before I got involved and during the shoot itself) that they're covered with their insurance for the gear on the shoot. 

 

But I was dumb I only got this verbally... not in writing. 

 

2 hours ago, David Waelder said:

And there's the rub.

 

Producers are often unwilling to sign four-page rental agreements. They may go along with complex contracts to secure a camera but balk at signing similar documents from others. One may persuade compliance on larger productions where legal consultation is readily available but getting agreement on smaller projects is often difficult.

 

That is my concern too, waving a multipage legal document under the nose of small time producer for a one day shoot is only likely to scare them away. 

 

But it does sound sensible I should do this for longer projects, such as features. 

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There are people you use the documents on and ones you don't..

if you have relationships with clients that have always been fair, and have paid loss damages before with no issue,probably not necessary. But, there are jobs where I would definitely lead with this document..usually a few days before the show starts. I make it look like normal course if business. It is not much different than the ones used by rental houses.. If production wants to get any gear from them, they don't bat an eye.. not much different for us..

choose your targets and do what you think is best..

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After consulting with a lawyer and thinking about it for a while, I have taken a slightly different approach with the rental contract.  I found getting signatures a pain for everyone (myself included), so instead of asking for a signed contract I provide terms and conditions on my rate card, including a clause that stipulates production agrees to these terms by hiring me etc.  Of course deal memos can supercede these terms, but it at least gives me a baseline and covers me on the majority of jobs I do.

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1 hour ago, Wandering Ear said:

After consulting with a lawyer and thinking about it for a while, I have taken a slightly different approach with the rental contract.  I found getting signatures a pain for everyone (myself included), so instead of asking for a signed contract I provide terms and conditions on my rate card, including a clause that stipulates production agrees to these terms by hiring me etc.  Of course deal memos can supercede these terms, but it at least gives me a baseline and covers me on the majority of jobs I do.

 

Be very careful with this approach. I was advised that another party is bound by proposed terms and conditions only if they explicitly accept. If they just do not respond, the offer of a contract is deemed refused. In other words. you are actually legally in a weaker position than if you had said nothing. With no contract, you might argue that the work is subject to the conditions customarily attached. That's a weak argument but it might get some traction. A rejected contract is just that, rejected.

 

These circumstances may not apply in every state so there may be some places it might work. But I understand that the presumption of rejection on no reply is the default in most states of the United States.

 

David

 

(Apologies for practicing law without any training. Please do check my advice for accuracy before acting on it.)

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1 hour ago, Wandering Ear said:

so instead of asking for a signed contract I provide terms and conditions on my rate card, including a clause that stipulates production agrees to these terms by hiring me etc.


Good idea to merge it into one document with your rate card (although maybe not so practical if your rental agreement is four pages long! As that might make the total PDF length a bit intimidating. But can easily be slipped in there if it is say less than half a page).

17 minutes ago, David Waelder said:

These circumstances may not apply in every state so there may be some places it might work. But I understand that the presumption of rejection on no reply is the default in most states of the United States.

 


But presumably they'll reply to your emails (even if it is just to send out call sheets) rather than ignore you completely (as yeah, if they're ignoring you, then there is no job to go to!). 

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