International copyrigth dispute (a bit tricky)

[roadstar_bg]

Hello, guys, a little advice here.

Short story : i am an film editor, based in Germany and worked with producers from the UK on a TV series production, that is been shot in the US. That was last year. I still haven�t been paid. I did a rough cut and sent them a preview. They never said anything, just delaying. There is no contract, but there are Facebook messages from one of the producers, stating the budget for the pilot i was supposed to edit and so on emails with instructions, i have the raw footage, the script for the whole season etc. I also have screenshots of them, in case they decide to mark them as spam over Facebook.

BTW... There is no NDA signed whatsoever. And there is no TV network behind the production. It�s an independent thing and the producers want to sell it on some platform like Netflix. For my part i doubt it very much, that it will make it anywhere, because the production is very low quality. But that is not so important.


So, earlier this year i asked if i can use some of the the footage for my showreel, so i at least have something out of it. Same producer gave me a go and said it should be not a problem. It should be just password protected until it airs. I told him i am going to put it on Vimeo and make some promotion in Facebook groups for networking with other film people. He saw the message, but didn�t decline or respond.
Now, 4 months after that, he told me, that i have to take it down, because i am pissing the network director, while posting the Vimeo link in the Facebook groups. I put a password on it, so it�s privat. But i put it in some of the FB posts. Yesterday they filed a DMCA Notice to Remove Copyrighted Content on Vimeo and it was taken down from the staff. I filed a DMCA Counter-Notification to Restore Removed Content and even brought the Section 107 of the Copyright Act ( Fair Use) I believe i did the right thing, but asking for advice is still a good idea.

To the reel :
It is 2:19 min in total. It is like a movie trailer. The material of claimed for copyright makes about 30 sec of in total. There are no whole scenes from the show, mostly short shots and the editing is different then in their show. There is a narrative voice over, that tells a complete different story with the images , that has also nothing to do with the story. Music was especially composed for the showreel as well as the sound design is also hand made. Even the color grading is different then the original footage. So i have invested a substantial of my own work into creating something different and unique and not just copying something.
Their show hasnt�t been released on network yet, as i said, but there were two complete versions of the first episode online on Vimeo. Not password protected. As well as trailer for the show all over the internet. I�ve downloaded them and made screenshot, in case the take it down later. Some of the footage of the trailer is also in my reel.
The reel main purpose is to show, in my funny way, my idea of what an editor does and of course help me networking. It has also some fun/sarcasm in it through the voice over as well. It doesn�t bring any direct financial benefit, nor i am somehow taking market shares from them.
My questions:

1. If they really file a law suit, they obviously can�t do it in the States. They have to do it in the UK or Germany, right? Since it�s a UK based company an i live in Germany.
2. What happens, if Vimeo decides that it goes under the Fair use act and puts it back on?
3. Since i am not making/haven�t made any money out of it, what good can a law suit do them? And since they don�t have the reel, now that it has been taken down, how can they explain in court, what the law suit is even about?
4. Since there was a complete episode already on the internet, does that count as an release? Not on pirated sites, but legally. One was a film distribution company, the other was .
5. Does someone has some good tip for what else i should do, rather then don�t work with shady people in the future?

Thank you very much in advance.

Best regards,
the stupid film editor

 

[quincy]

Short story : i am an film editor, based in Germany and worked with producers from the UK on a TV series production, that is been shot in the US. That was last year. I still haven�t been paid. I did a rough cut and sent them a preview. They never said anything, just delaying. There is no contract, but there are Facebook messages from one of the producers, stating the budget for the pilot i was supposed to edit and so on emails with instructions, i have the raw footage, the script for the whole season etc. I also have screenshots of them, in case they decide to mark them as spam over Facebook.

Working without contracts was not smart of any of you.

BTW... There is no NDA signed whatsoever. And there is no TV network behind the production. It�s an independent thing and the producers want to sell it on some platform like Netflix. For my part i doubt it very much, that it will make it anywhere, because the production is very low quality. But that is not so important.

Working without a non-disclosure agreement was also not smart.

So, earlier this year i asked if i can use some of the the footage for my showreel, so i at least have something out of it. Same producer gave me a go and said it should be not a problem. It should be just password protected until it airs. I told him i am going to put it on Vimeo and make some promotion in Facebook groups for networking with other film people. He saw the message, but didn�t decline or respond.
Now, 4 months after that, he told me, that i have to take it down, because i am pissing the network director, while posting the Vimeo link in the Facebook groups. I put a password on it, so it�s privat. But i put it in some of the FB posts. Yesterday they filed a DMCA Notice to Remove Copyrighted Content on Vimeo and it was taken down from the staff. I filed a DMCA Counter-Notification to Restore Removed Content and even brought the Section 107 of the Copyright Act ( Fair Use) I believe i did the right thing, but asking for advice is still a good idea.

I do not see why you filed a counter-notice. I do not see that you have anything to support it. You hold no rights in the film.

To the reel :
It is 2:19 min in total. It is like a movie trailer. The material of claimed for copyright makes about 30 sec of in total. There are no whole scenes from the show, mostly short shots and the editing is different then in their show. There is a narrative voice over, that tells a complete different story with the images , that has also nothing to do with the story. Music was especially composed for the showreel as well as the sound design is also hand made. Even the color grading is different then the original footage. So i have invested a substantial of my own work into creating something different and unique and not just copying something.
Their show hasnt�t been released on network yet, as i said, but there were two complete versions of the first episode online on Vimeo. Not password protected. As well as trailer for the show all over the internet. I�ve downloaded them and made screenshot, in case the take it down later. Some of the footage of the trailer is also in my reel.
The reel main purpose is to show, in my funny way, my idea of what an editor does and of course help me networking. It has also some fun/sarcasm in it through the voice over as well. It doesn�t bring any direct financial benefit, nor i am somehow taking market shares from them.

I think you might be sued. You should prepare yourself for that eventuality.

My questions:

1. If they really file a law suit, they obviously can�t do it in the States. They have to do it in the UK or Germany, right? Since it�s a UK based company an i live in Germany.

Whoever holds the rights in the film can sue you where they live or are based, or where you live. To have an effect on you in your life, the suit would be best filed against you in Germany but it will have to be filed in German courts under German laws.

2. What happens, if Vimeo decides that it goes under the Fair use act and puts it back on?

I guess it would be put back up.

As a note, fair use is part of the US Copyright Act, and can be used as an affirmative defense to an infringement suit. It is not permission to use the copyrighted works of others. The US Copyright Office has published "guidelines" on what US courts have determined in the past can be a fair use of material. The context matters. Whether any particular use is an infringement that will be excused by a court as fair use, however, will be decided on a case-by-case basis should the copyright holder take exception to an unauthorized use of their material and sue the one who is using it.

Other countries have similar doctrines that permit the uses of copyrighted material under certain circumstances but these doctrines are not "fair use" doctrines.

3. Since i am not making/haven�t made any money out of it, what good can a law suit do them? And since they don�t have the reel, now that it has been taken down, how can they explain in court, what the law suit is even about?

Whether the rights-holders will sue you is up to them. How a suit is can be supported is something I can't tell you. I don't know what they can show in the way of damages or what the laws allow for them to collect in the way of damages in Germany or in other non-US countries. You will need to ask a German IP attorney.

4. Since there was a complete episode already on the internet, does that count as an release? Not on pirated sites, but legally. One was a film distribution company, the other was .

I have no idea what is going on with the film you edited other than you published online material you had in your possession that was not created by you, possibly affecting the market for the film. Because it sounds as if none of you should have started any film without the proper contracts in place, what happens from here is anyone's guess.

5. Does someone has some good tip for what else i should do, rather then don�t work with shady people in the future?

Don't work without contracts. Don't work with those who do not know what they are doing. And don't infringe on the copyrighted works of others.

Because your situation is a complex one and this forum does not handle international law as a rule (we are a US law forum), I recommend you sit down with an IP attorney in your area to sort out the facts and tell you where to go from here, this if you are looking to get paid for the editing work that you did, and this if you are sued over your use of the copyrighted material.

Good luck.

 

[roadstar_bg]

Thank you, Quincy,

thank you for the quick response.
filled a counter notice, because i thought it would be best to make it clear, that the creative work i put in the showreel wasn´t just cosmetic, but it´s indeed a new, independent piece of work. And

As far as affecting the marketing of the film, i don´t see how. The reel doesn´t give any clue to anything in the movie and some of that material is included in the trailer of the series, which is online longer than a year. So nothing really new was leaked.

And for about being sued, what can possibly happen? If they want to squeeze me for money, they will have to prove that my reel has done any financial damage to their project. So they can calculate an amount. Which is going to be very difficult, because it hasn´t. There is no way to calculate this. Other people are suing them as well, so it´s unlikely that this thing goes on any network, until everything is set. Even if they do sue me, i guess i will get a letter from court, to which i can still respond that there has been a misunderstanding, because the producer was so unprofessional, gave me a permission first, then changed his mind and i am sorry and i won´t post it anymore. May cost some small fee, but won´t kill me.

 

[quincy]

Thank you, Quincy,

thank you for the quick response.
filled a counter notice, because i thought it would be best to make it clear, that the creative work i put in the showreel wasn´t just cosmetic, but it´s indeed a new, independent piece of work. And

As far as affecting the marketing of the film, i don´t see how. The reel doesn´t give any clue to anything in the movie and some of that material is included in the trailer of the series, which is online longer than a year. So nothing really new was leaked.

And for about being sued, what can possibly happen? If they want to squeeze me for money, they will have to prove that my reel has done any financial damage to their project. So they can calculate an amount. Which is going to be very difficult, because it hasn´t. There is no way to calculate this. Other people are suing them as well, so it´s unlikely that this thing goes on any network, until everything is set. Even if they do sue me, i guess i will get a letter from court, to which i can still respond that there has been a misunderstanding, because the producer was so unprofessional, gave me a permission first, then changed his mind and i am sorry and i won´t post it anymore. May cost some small fee, but won´t kill me.

First, here is a link provided yesterday to another poster from Germany on legal actions when the parties reside in different countries. The link is to the Digital Media Law Project site which has its concentration on media issues but which has some information you might find helpful: http://www.dmlp.org/legal-guide/dealing-foreign-legal-threats

If a suit is filed against you in the US, you would have a potential "fair use" defense to the action if you can demonstrate to the court that your use of the copyrighted material was transformative (added new expression or meaning to the original, creating on its own a new copyrightable work). If you are sued in Germany, you must refer to the copyright laws of Germany for any possible defenses.

Trying to resolve the matter outside of a courtroom is a good idea if it can be done.

Good luck.

 

[quincy]

So, there is a development in the "case" . Vimeo emailed me and i�ve got the DMCA takedown description
Description: Two shots from the TV show ***** - one which is the main pic for the reel (bald black guy and brunette white woman) and the other is M.M. at a desk.
Comments: This person was trialed as an editor (hence him having the footage) but was sub par and therefore not employed. He did not cut the show (the editor's name is ****). He does not have permission to use this footage (and the two shots don't even show his editing "skills" anyway as they are single stand alone shots). He was asked by the Producer to take this down but all he did was make it private but then continue to freely give out the password on Facebook film crew forums. Sorry but that's not acceptable - I am now exercising my right as the copyright holder.

Okay. So the copyright holder is exercising his right to have his work removed from its place online. I am not sure the producer was in a position to grant you permission to use the material.

Which is clearly not the case .
Here are parts of the conversation about the permission:
Me
https://www.youtube.com/*****
XXX ( a draft of the reel)
Me
1/15, 5:04pm
Me
And those are the shots from the show.
I am still working on the text, but it�s going to be done soon. Then music, sound design, color grading and so on
So you know which shots i used
Me
1/15, 5:31pm
Me
So you see it, before i start doing the other stuff
It�s mainly for some producers/directors in the States and an agent. When it�s done, it�s going to be on Vimeo
Producer
1/15, 9:25pm
Producer
Can't be a public link though
Make it password protected
Me
1/15, 9:26pm
Me
I can do that. No problem
Producer
*thumbs up"
1/15, 9:26pm
Producer
Until after the shows airs
Then it's fine.
Me
https://vimeo.com/******
Link to the video
Me
3/27, 7:46pm
ME
I will put a password on it as promised. When is the show due to air?
ME
3/27, 8:34pm
If it�s possible, i would like to spam the Facebook groups for couple of days to draw some attention and then put it under lock, so i can send it only if requested
3/27, 8:34pm

*Note: Message read. No response for four months. Does this count as a silent consent?

There is no "silent consent" in copyright law. You get consent from the copyright holder or you don't use the copyrighted material. It appears that your request for permission to "spam" Facebook was not granted.

Producer
Mate I need you pull that thing down with clips from our show
It hasn't aired yet
I will message you when you can put it live
But you are pissing of the director and the network
ME
OK, i will make it password protected.
I just saw an edit on Vimeo, that �s why i assumed it�s already out
screenshot of the edit/first episode.
Producer
7/31, 7:14pm
Producer
I am getting that one down too.
ME
7/31, 7:15pm
Me
Because it was open. But it�s fine, i will make it password protected. When does it go live appr?
Producer
7/31, 7:15pm
Producer
November
OK. it�s not so long. Let me change it quickly
It�s probably because of the British groups.
Producer
7/31, 7:16pm
*thums up*
Producer
7/31, 7:16pm
Producer
Let me know when it's done
me
7/31, 7:16pm
me
Ok
Ok, already changed. But it can be, that it still show somwhere because of caches. Or as a thumbnail.But that is Google, can�t change that. It keeps the search results for a while
I made the Vimeo private and put a password on it.

I see that you were told to take down what you published online. Even when copyrighted material is pulled from its place online, there can still be a copyright infringement action taken against an infringer.
----------------------------

And that is the conversation we had at the beginning, as we talked about the budget etc.
Ok, not i can at least get inside. My dropbox has only 6 GB and it wouldn�t let me add the folders, because they are bigger. Will have to download them separately, but at least it�s working (we were talking about an additional part of the footage, that didn�t arrive with the hard drive)
Producer
*thums up*
8/25, 6:52pm
8/25, 6:56pm
????
Ok. So that part is done now.
Now what remains is the producers�s favorite part : NDA, contract, budget etc haha
8/25, 7:35pm
Producer
I have $4k for the pilot
If you do a good job you will cut everything (* Note :here he referees to the whole season of the show)
But I need speed
And you will have my help
8/25, 7:35pm
Me
That's exactly what I thought about the budget
Haha
Around 4k
8/25, 7:37pm
Producer
Good stuff
Speed mate
That's they key
And let me help you as much as possible
ME
Normally I send weekly previews in 720p/6000kb bitrate. With watermark. Over wetransfer. So the director/producer can review the progress and already make notes for the picture lock/final cut/fine edit(everybody calls it differently).
And I work with milestones. At the latest after the first complete round /rough cut, cash needs to flow in. But that is usually the case with bigger projects everywhere.
I also work on the weekends, when speed is required.
We can also skype, if something is unclear about anything.
But as I told you, I think it would work out as well, because the show is made for TV(so no festival film) and you all knew, how to shoot. As I said the only one thing that doesn't work well over distance are art or experimental movies.
Me
8/25, 8:14pm
Me
It will go quickly, I am sure of it
8/25, 9:11pm
Producer
Cool
Take a look at the sales promo too
https://vimeo.com/******
Password: *****
Additionally i have emails with instructions and so on. I also sent a 27 min cut after two weeks (which is about half of the first episode) and they didn�t say anything about not being pleased or that they want to cancel the job. We never used words like "trial" , "test" and something similar. As i did the rough cut (54 Minutes) , i sent him a preview with a message :
Okay, I cut it down to under 54 minutes. Will upload it over night.
I watched it three times now. If there is still some major problem in the edit, I don't see it anymore.
Now you have to see it(including anyone else, who some say in the matter) Then I will need a list, with what you think should be corrected/changed/shorten etc. With timecodes.
Just so you know: the apartment scenes are a problem, because there is just a lots of bad footage(shaky, unsharp, sometimes the other camera or the sound guy is in the frame) I've tried to use it as good as I could. But it's difficult to make it look beautiful, when the footage itself it's not. The rest is fine.
When you have the list, I will write you a bill and I need to see 50% of the budget. Corrections shouldn't take more than a week after that.
When we have the picture lock, you need to tell me, what kind of file you will need from me for Grading/Sound design ( XML, AIFF) and where to send you the drive to.
October 23, 2015
Me
10/23, 8:47am
Me
https://youtu.be/******
ROUGH CUT 22 10 2015
youtube.com
Me
10/23, 8:47am
Me
That�s the link. Please get back to me, when you have watched it
October 25, 2015
Me
10/25, 1:18am
Me
have you watched it already?
October 25, 2015
Producer
10/25, 7:23pm
Producer
Are you talking to one of my cast members?

Okay. Not sure what is going on with those messages. It appears that you were communicating with someone other than the Producer?
-------------------

Since that they i�ve asked a couple of times, what is going on, but he said, that he is working on that or it takes time. Stuff like that. Just being evasive. I told him, that the footage is not good and we need to see what we can change, because i can�t just take some parts out, without consulting the director/producer. Which is the usual thing you do, when there are problems. But until today there was mo word of cancellation or whatsoever. HE "is working on it". In his last sentence he was referring to someone, who was on the show and had trouble getting his money too.

So that is the situation. Any more advice? I think to offer him the following as a settlement: to pay me 30% of the budget, as it is usual for cancelled contracts, when work is been done on the project, but the job gets cancelled. Also to put my reel under password until November, as he asked me. Then everything would be concluded. And that we put everything in writing as a contract/agreement. Or if he says, he won�t pay anything and i should forget about it and also using my reel, i will fill out the counter claim, so he can try to sue me in front of an US court of law and prove that i don�t have permission to use the footage. And i will try go sue them for the whole budget of 4000 plus costs for the delay. I am just guessing, that they won�t really go and do that, because it�s going to cost them more time and money, then to simply pay me 1,330 $ and pull out the counter claim.
Of course i maybe wrong. Knowing their reputation and what they have already done.
Maybe someone has an idea, of how to best get out of the situation with a minimal loss.

I am having your original post reviewed by the moderator and possibly edited. It should be returned to its place in the thread after that. I have quoted your post (and will do brief editing myself).

I think you need to speak to an attorney in your area for a review, as advised earlier.

 

[roadstar_bg]

I am going to have your post reviewed by the moderator and possibly edited. It should be returned to its place in the thread after that, and I have quoted your post (and will do brief editing myself) and will address your questions later.

OK, thank you for that. I tried to redact the names and the links, so that it is a bit more neutral. But it´s´s a very long post and i am still not used to the forum, so i may missed something.

 

[quincy]

OK, thank you for that. I tried to redact the names and the links, so that it is a bit more neutral. But it´s´s a very long post and i am still not used to the forum, so i may missed something.

Yes, I tried to edit and condense your post for easier reading. I might have missed something, too.

 

[roadstar_bg]

Yes, I tried to edit and condense your post for easier reading. I might have missed something, too.

No, that is the producer. At least one of them. Also part director and actor. He is listed everywhere. Also presents himself like this on the crowdfunding campaigns as well. And there is someone else (worked as an 1AD), who is also suing him for not getting paid, who can also confirm that he is the producer of the show. The one, with whom i am communicating, is also the one, who sent me the hard drive with the footage.
It´s just that the whole thing is very unprofessional and messed up. The other guy, who did the claim, is also a director/producer/writer. And he is referring to the first as a producer. As on many independent productions, they have more then one role.
I just separated both topics, so it´s easier to read. And i didn´t want to post screenshots of the conversation. The end was, that he asked me to to put a password on it and to let him know, when it´s done. That is what i did.

I meant implied consent, not silent consent, sorry.

What about the other part, where we discussed the work and budget?


But yes, you are right. I think i would have to go to an attorney. Maybe he can have

 

[quincy]

No, that is the producer. At least one of them. Also part director and actor. He is listed everywhere. Also presents himself like this on the crowdfunding campaigns as well. And there is someone else (worked as an 1AD), who is also suing him for not getting paid, who can also confirm that he is the producer of the show. The one, with whom i am communicating, is also the one, who sent me the hard drive with the footage.
It´s just that the whole thing is very unprofessional and messed up. The other guy, who did the claim, is also a director/producer/writer. And he is referring to the first as a producer. As on many independent productions, they have more then one role.
I just separated both topics, so it´s easier to read. And i didn´t want to post screenshots of the conversation. The end was, that he asked me to to put a password on it and to let him know, when it´s done. That is what i did.

I meant implied consent, not silent consent, sorry.

What about the other part, where we discussed the work and budget?


But yes, you are right. I think i would have to go to an attorney. Maybe he can have

I agree that the situation as described is a mess, in large part due to a lack of contracts. It will take an attorney in your area of Germany to sort through it all and make sense of it.

It appears to me that you took video footage and posted it, password protected, and then you proceeded to give out the password to others. It also appears that you were not given any license from the copyright holder to do any of this. So I think you could be on legally shaky ground. Perhaps the attorney you see will think differently, and perhaps the attorney you see can help you work on getting paid for the work that you were hired to do.

Good luck, roadstar_bg.

 

[FlyingRon]

We've been over this in another forum. His use is not (at least by US law) fair use. He is using it for his own commercial purpose and not for critical or educational purposes. The owner has a legitimate claim that release prior to their public release decreases the value of the work. The fact that he's got an inconsistent copyright owner and his arguments as to his pay issues don't justify him infringing on the copyright.

 

[quincy]

We've been over this in another forum. His use is not (at least by US law) fair use. He is using it for his own commercial purpose and not for critical or educational purposes. The owner has a legitimate claim that release prior to their public release decreases the value of the work. The fact that he's got an inconsistent copyright owner and his arguments as to his pay issues don't justify him infringing on the copyright.

I am still not entirely sure who the copyright holder is, or if this could be a coauthored/joint work where all share equally in the rights to the film. The fact that everyone working on the film appears to be working without contracts makes this a messy project (and it is likely to get messier).

I think roadstar_bg needs to have an attorney in his area look at what roadstar actually published online (it sounds in his first post that it did not resemble the copyrighted film). The attorney can look over the entire film project to date. A personal review will give roadstar a better idea of what sort of claim can be made against him and what sort of defenses roadstar might have to any claim (and, because we haven't seen what roadstar published, we cannot rule out a fair use defense if he is sued in the US).

The attorney can also advise roadstar on how best to collect the money he is owed.

I rarely read what is posted on other forums.

 

[FlyingRon]

I don't think this is coauthored at all. You'd have to make a claim that "editing" somehow is creative enough to establish rights other than just being a derivative. Also, it's almost certainly a work-for -hire in the US despite the contractual pay dispute.

Even if the editing did justify protectable creative content, it doesn't give him to the right to infringe on the other rights for his own commercial purpose.

 

[quincy]

I don't think this is coauthored at all. You'd have to make a claim that "editing" somehow is creative enough to establish rights other than just being a derivative. Also, it's almost certainly a work-for -hire in the US despite the contractual pay dispute.

Even if the editing did justify protectable creative content, it doesn't give him to the right to infringe on the other rights for his own commercial purpose.

There is too much going on in what has been described to be able to state that anything is a "certainty." There are no definitive answers that can be given roadstar.

In the U.S., under U.S. copyright laws, a coauthored work without a joint ownership agreement in place to govern the rights, the producer who permitted roadstar_bg to publish what he had may have had the legal right to do so. At least under U.S. copyright law and possibly under German copyright law, there may have been no infringement. The online publication would have been authorized by a coauthor.

I am not thinking a derivative work but a transformative work. The use of seconds worth of a film could also be judged "de minimis" or, depending on what was published, a fair use. Again, this would be under U.S. copyright laws.

We need to consider not only U.S. copyright law but the laws of Germany, under which roadstar will more than likely have to be sued (although a suit in the U.S. is not out of the question).

It is impossible to say anything with any degree of certainty without seeing the footage and what was created by roadstar. There are too many unknowns. Although I suspect infringement and I question the wisdom of filing a counter-notice, only an attorney in Germany who can personally review the film and the facts will be able to help roadstar_bg sort it all out.

The only thing that seems clear to me is that a forum cannot provide the type of legal assistance roadstar needs.