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Back Up & Sound Dept. Liability


Michael Stahr

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Back Up & Sound Dept.   Liability

 

Back up of data - Methods and Best Practices have been thoroughly discussed – and will continue to evolve. We all know we want to do a great job, provide perfect, organized data and get called back again.  But what happens if perfection isn’t achieved?

 

This thread is not about Practices, hardware and uploading.  All well covered.

 

This is about the liability of the Sound Department and ultimately the Sound Mixer.

 

What is the legal “hand over” moment?  The passing of responsibility? 

Has this ever been tested with any kind of law?

 

Today’s basic workflow:  Record on pro recorder that has at least 2 media.

Mid day and/or at the end of the day Hand media (CF or External HD, DVD ROM etc.) to production via Data Handler or DIT.  Is this the moment?

Would the moment be, when they hand back the media?

 

Most Mixers keep some kind of  “Back Up” copy for at least:   Next day?  End of week?  End of project?  Release of Project?

At what point does Production / Producer assume liability? 

And with this, if “something” happens and they come looking for replacement files, who pays for the time to make it happen?

Of course we want to be the heroes – save the day – many of us have and will again,

BUT what are we setting ourselves up for by providing various “Back-Up Services”.  It has become expected, demanded – what is our liability?

If something went down and we could not provide a “Back Up” would we be liable for our time and equipment for a re-shoot, or possibily the full cost of a re-shoot?

Lastly, If we are archiving somebody elses intellectual property on our computer (for the protection of them) and it gets hacked and released some how - what is our liability ?

 

Anybody have a lawyer friend to pass this by?

 

 

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" Lastly, If we are archiving somebody elses intellectual property on our computer (for the protection of them) and it gets hacked and released some how - what is our liability ? "

this is one of the more realistic scenarios in the above rant...

I was inferring the same thing in another thread about storing our backup of their property in the cloud...

I, for one, would not like to be there!

remember the fuss when some production sound from a Terminator movie surfaced..??

I'm from that old school that at the end of the day (or other designated times), I provided my work materials (original 1/4" tapes) to production (their designated representative) and thereby fulfilled my obligation as their employee.

 

As an employee, my liability was and is pretty clearly limited in such a circumstance; the employer could fire me, and or never hire me again.

 

Invoking Independent contractor status opens up the parties to a lot of possible scenarios "depending on..."

but as we are providing work for hire, once the proper payments are made, it is their IP, and not ours, we relinquish all claims, although we remain obligated to appropriately handle and keep secure any aspects of their IP we may retain; this isoften specifically covered in ND agreements we may be asked to sign.

Thus, I personally prefer to divest myself of the IP of others soon after it has been turned over to them, allowing today's technology to confirm its safe delivery. --for a practical example: once post production has ingested it, and is working on it without negative feedback regarding successful transfer,  at that point, it is theirs, and their responsibility

If we agree, another factor (a date, a release, etc) mat be agreed upon, as long as they also agree to hold me harmless of any consequences of my retainimg their IP.

Edited by studiomprd
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"At what point does Production / Producer assume liability? ".....

 

When I give my media to them at the end of the day IMO. Standard practice for years.

 

" if “something” happens and they come looking for replacement files, who pays for the time to make it happen?"....

 

That's an individual negotiation I would think. I have yet to charge anyone.

 

"BUT what are we setting ourselves up for by providing various “Back-Up Services”.  It has become expected, demanded – what is our liability?"

 

If it is demanded we keep files for any period of time, then we charge for it and keep the files in an insured and safe place.

 

 

"if something went down and we could not provide a “Back Up” would we be liable for our time and equipment for a re-shoot, or possibily the full cost of a re-shoot?"...

 
This is a pretty open question. A lot of bad film or sound or acting has caused reshoots and I've never heard of a focus puller/DP/Lab/actor/mixer/boom op being charged for it.
 
"Lastly, If we are archiving somebody elses intellectual property on our computer (for the protection of them) and it gets hacked and released some how - what is our liability ?"...
 
Nothing if it's not in writing.
 
CrewC
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Senator, are you referring to Christian Bale? That was Terminator, not Batman, and I believe it was determined to have leaked from post, not Mark Ulano and his backups.

 

I don't know if anybody ever came forward, but what was told to me was that it may have come from the insurance company, who had copies of the tracks in question in case the film had to be shut down. And the tracks didn't leak until six months after that scene was shot, which is long after dailies were done, and post would not necessarily have access to that material.

 

Mr. Wexler pointed out to me some years back that the camera department doesn't make any backups of their footage -- they hand over everything to editorial. I know several D.I.T.'s, and most of them have groused to me that they're constantly running out of drive space. They don't have the space to backup hundreds of hours of material. Once it's handed over to the production company, I think it's their responsibility. If anybody had additional backups, then they've gone above and beyond the call of duty. One could argue it'd be a little risky to hold on to feature or episodic material, because of the risk of piracy and leaks and stuff like that. I wouldn't want that responsibility. 

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This was brought home to me last year when I was travelling back from a very intense shoot in South America, and a bag containing the rushes was stolen at Sao Paolo airport, all the camera departments rushes lost forever, my rushes were safe, I'd made three copies by that point, so the master was still on my 744T in the hold of the plane, one copy was in the bag with the camera rushes, one copy was in my laptop bag, and one was on Dropbox.

 

The AP said when he learnt of the theft 'Oh they did ask me to do a back up on the last shoot we did, but I didn't have time in the evenings, so I didn't bother' I didn't really have time in the evenings either, but I did bother, and I'm glad I did.

Mr. Wexler pointed out to me some years back that the camera department doesn't make any backups of their footage

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" it'd be a little risky to hold on to feature or episodic material, because of the risk of piracy and leaks and stuff like that. I wouldn't want that responsibility. "

for me, it'd be a little risky to hold on to feature or episodic someone's IP material, because of the risk of piracy and leaks and stuff like that. I wouldn't want that responsibility., and the crap if it does somehow get loose, even though it isn't my fault.

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The DITs I work with back up everything.  They take one drive and the producer takes the other.  Non-stupid production co's make clones of the data ASAP.  No, we never backed up film in the field, but film, in my experience, was less accident-prone than data.  We did sometimes make backups of videotapes--also much less accident prone.  I really like recording to a 2 (or 3) media machine, and I generally keep the files around for some period of time, because it isn't much trouble, so why not?  

 

Nature is capricious and cruel.

 

philp

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 No, we never backed up film in the field, but film, in my experience, was less accident-prone than data.

 

This might have to do with everyone knowing there wasn't a backup, and acting accordingly. Kind of hen-or-egg question: Do we make backups because stuff gets lost more easily, or does stuff get lost more easily because everybody knows there are backups and some take this as an invitation for carelessness?

I've encountered REALLY green interns handling drives in a very rough way. So there's at least two careless people involved: the intern and the person handing the drive to them.

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" No, we never backed up film in the field, "

but the raw negatives were the backup for the prints that were used in post production...

it is important to know who"we" is...

" we " (Production Sound Mixers) did not make or keep back-ups (NAGRA days) but "we" carried spare NAGRA recorders.,

 "we" did begin recording to a second machine when "we" began using DAT's

but production did create and use backup materials (usually storing the originals!)

 

productions should, and typically do, make store and/or  use backup copies of their files of the raw materials.

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...productions should, and typically do, make store and/or  use backup copies of their files of the raw materials.

 

Very true. But... on rare occasions, I have run into productions that did not backup and suffered for it. On several occasions, I did get panicked phone calls six months after a job looking for wild lines, and by a miracle, I happened to have a backup of the files. Since it was just a handful of tracks, I gave the files to them gratis via Dropbox, and it just took me 10 minutes of effort. I figured the goodwill was worth it.

 

In another case, I had a client come back 13 months after a feature was "finished," and he wanted to redo the color-correction session (the picture version of a Pro Tools mix) from scratch after it was recut. By a miracle, I had saved that after leaving the original post house, so we were able to reload and redo everything at another company, saving them at least $20,000 in being able to avoid having to start from ground zero. They were extremely grateful and paid me very well. 

 

People are much, much too flippant and casual about data these days and tend to just slap files around like they're not important. I think camera data is a lot more fragile than people think, and you really have to do a bit-accurate copy for you to be absolutely sure it's OK. 

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Some time back, wearing my hat as a Production Technical Adviser on a film, I specified a system where there were three copies of the camera data files made during each shooting day. I backed up my own audio daily and gave them a weekly consolidation of those files to be archived alongside the video. Following wrap of principle photography, one drive went to the east coast, one went to the west coast, and a third stayed in the midwest. We were prepared for anything short of a full-fledged national catastrophe.

Always remember that hard drives die -- and they usually choose inopportune times to do it.

I'm a believer in the axiom: If your data doesn't exist in three places, it doesn't exist.

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I'm a believer in the axiom: If your data doesn't exist in three places, it doesn't exist.

 

Yes that is my feeling during a film I have it on my 788T internal drive and a external HD on my cart production gets a CF card each day to back up. I have 5 CF cards so I have 3 copies for 1 week then 2 copies after that. After wrap I insist production make a copy of my External Drive which the DIT verifies matches his copy which is also usually in 3 places as well. Once they is verified I keep at least 1 copy until the project airs. Like Marc I had someone come back to me 16 months later looking for audio from a scene they couldn't located I uploaded the 3 takes missing and was the hero. 

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  • 1 year later...

To my Brothers and Sisters of the digital mixing world:  Back it up to protect yourself

I speak from very expensive experience.  A producer came after me for ‘missing’ files, (four days of missing files) - 3 months after the wrap of a project.  I was unable to produce copies of those files.  He sued for $50K to re-shoot.  After a year and a half and taking it all the way to a two day court trial, I won 100%.  I had recorded and backed up (HD & CF).  His interpretation of ‘backup’ seemed to be access to his intellectual property, any time – forever.  The court disagreed.  I won, 100% and it only cost me $20K to protect myself. 

I did gain a valuable education in the legal world, but it cost me hundreds of hours and thousands of dollars.  Protect yourself.

What is the cost of a drive?  What is the cost of an hour’s time at the end of a week?

Peace of mind for me.

So, if your DIT is a DIC, shrug your shoulders and walk away.  They won’t last long, but you will.

My workflow now:  End of each day I dump to a portable HD and create sound report.  It doesn’t take much more time than just the creation of the sound report and it gives me a chance to spot check and fix any file naming issues.  This does take time and you should be on the clock for this.  Real producers know this – train the newbie producers please.    Hand off the HD to Wrangler/DIT.  CF is saved for a week and is never touched by production or any “helpers’.  Portable HD stays with my laptop and eventually ends up in my office.  At end of job I tell them that as a ‘Courtesy’ I will HOLD files (I don’t use the word back up) for 30 days.  I have tried to put something legal sounding in my deal memo but it just seems to confuses them and probably scares them off.

What would be the charge for being a hero?  When you send a replacement for a missing or corrupted file to a client do you bill them a hundred bucks?  Who do you bill the producer, the DIT, the post house?

I have provided after-the-fact files for various reasons, but to date have not charged.  I wouldn’t know how much to charge for being a hero and I especially like repeat business. 

All it takes is a single bit in a file to be corrupt and a file can go bad.  It is not your fault, it probably isn’t their fault, it’s Karma, or sun-spots or juju or probably just the HD going bad – it doesn’t matter. 

Digital workflow has many benefits.  It is both fortunate and unfortunate that we Mixers now have the ability to save a perfect copy. 

I choose to take the chance of being sued for holding files - to protect my client and myself. 

 

Protect yourself.  Back it up.     M*

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dej'a vu'

 

sorry for your bad experience, dpstahr, but OTOH, there are also remote possibilities of being sued for un-authorized copies of their intellectual property, especially as many folks are keeping some stuff in various clouds...

just sayin'

I expect you have gotten some excellent legal advice in the course of your dilemma;  me, I hand my work product over to the client, just like I did with the original Nagra tapes...

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