OT: Just what is a warranty worth?

farss wrote on 2/9/2006, 5:12 AM
No, not the kind about something that you bought and it broke. I mean one in a legal contract.
Here's the deal. Landed a short but far from insignificant job, client bailed on their usual post house, something about too expensive and someone recommended me, heaven only know why I drew the short straw.
Now I knew there had to be something more to this and then BINGO, the music they want to use, even after I gave them links to FreePlay whose rates for what this is needed for are very reasonable, heck they've even got a whole catagory for just this kind of program. But oh no, they must have these tunes by these artists and just the sync fees are going to cost a bundle.
I'd just explain the whole deal to them and when they choked let the job go except these guys have bought rights to major hits as their 'anthem', used a lot during on air coverage of their events.
Now my legal guy tells me my contract can include a warranty e.g. they warrant that they have the necessary rights, they supply copies of the music that they warrant they have the rights to use, have paid all the fees etc. I'm told that if they're telling fibs my butt is covered and yes they've got very deep pockets, much deeper than mine.

Now here's the other thing, I've been caught out on this before, thankfully didn't cost me but I'm still very unhappy about it. The client assured me they'd pay the fees and they just didn't and it was a piddly amount of money. Sure I could have paid them myself but they're one of those clients that are all so slow in paying and if they went belly up I'm out of pocket for real money, I don't mind so much when it's just my time but when I've spent money that I don't get back from a client it hurts.

So this time around we're talking serious sums of money, way more they I can afford to be dudded on. So if I make it the clients part of the deal to negotiate and pay or just say they have / will under warranty and they certainly have the means and the expertise to do it how hard should I push for proof that they have, what's the industry norm here?

Oh and one last thing, heck, even though the vision is from their events, hm, could they have sold the rights to that to their broadcaster, I think I'll have to get my lawyer on a retainer. Does it mean you've made it in this game when your lawyer has your number on his speed dial?

Bob.

Comments

Coursedesign wrote on 2/9/2006, 7:09 AM
Does it mean you've made it in this game when your lawyer has your number on his speed dial?

No, it means your lawyer's made it :O)


The rest is too dependent on Oz laws.

Perhaps you could ask the Wizard?

:O)

Former user wrote on 2/9/2006, 7:42 AM
From what I've been told, no contract / agreement that you sign with your client can absolve you from legal responsibility for using copyright material. But, the client should have definitive documentation to confirm the license rights to the material in question. So, if they can provide that to you then you can probably be comfortable proceeding with the project.

A few years ago, I edited a regional :30 spot for a power company that used a well known, classic soul music clip. The client licensed the music and provided me with the license document to confirm that the license was in place. It was many pages long and contained all of the details of the rights including length of use (13 months); broadcast medium allowed (Broadcast TV and Radio); Market (Regional, USA); etc and so forth.

They also had pre-determined costs to extend the license period, increase "exclusivity of use", all sorts of stuff. It was probably 6 pages long, and it appeared that at least 5 people had signed, or initialed it.

The spot was considered a "Public Service Announcement" so the rate wasn't nearly as high as it might have been. I think it was $5,500 for the 13 month period. The agency person told me that it would have been around $20,000 if the spot had been deemed a "commercial".
Jay Gladwell wrote on 2/9/2006, 8:14 AM

The client assured me they'd pay the fees...

Ahhh... therein lies the problem. Assuring and providing hard evidence (a license agreement, i.e., proof) is two different things. They should have provided you with copies of their license agreement showing that such fees had indeed been paid, to whom, for what music, for what amount, for what use, for what duration, etc.!

Therefore, their "warranty" is only as good as the evidence--proof--they provide.

Your written contract with them should contain a warranty clause. That clause must stipulate that they have provided all necessary documentation proving that all fees have been paid and all necessary licenses have been aquired.

No proof... no work.


farss wrote on 2/9/2006, 1:52 PM
Well their "warranty" should mean that if they don't it's on their head not mine.
Certainly there's no way any legal document can absolve one of many legal responsibilities but that's under criminal law not commercial law and usually the test is what a reasonable person would do or assume. For example the old lady down the road is very unlikely to have the rights to any Top 40 material so it would be a reasonable expectation that you ask to see documented proof that she does, regardless of any warranty she was to provide.

The issue here though covers ANY legal contract. For example you hire a builder to do work on your house, maybe even to demolish it and build a new one. Might be reasonable for the builder to check that you do own the house, so he asks to see the deeds. You provide said deeds and you'd think that's the end of his responsibilities. Unless of course you're involved in a property dispute with a soon to be ex-wife, this has happened and yes, hapless builder got caught right in the middle of it. Result now is builders get very nervous at any sign of past female occupation, have a bit of a barny with the misses while the builders in ear shot and they're likely to down tools and do a runner.
Bob.

Bob.
JJKizak wrote on 2/9/2006, 2:20 PM
The same lawyers that write the warrantees write the copyright laws.
Maybe.

JJK
corug7 wrote on 2/9/2006, 2:47 PM
When I have my taxes done at H&R Block, they assure me that if the government should decide to audit me, their lawyers will provide counsel and their corporation will pay any associated fines provided the mistake was on their end. Maybe you should negotiate a deal like that with this client, since they have deeper pockets, and then make sure you get the correct documentation anyway.
Jay Gladwell wrote on 2/9/2006, 2:49 PM

Okay, Bob, so what's your point?

A warranty clause with proof of __________ (fill in the blank) will absolve you of any criminal liability.


farss wrote on 2/9/2006, 3:08 PM
No, no warranty can absolve anyone of any criminal liability, you cannot give me the right to kill you. You can warrant that you will perform certain commercial acts and if you fail to do so you are the one who gets to pay. For example goods are of mechantable quality and if not you'll fix them or refund the purchase price

Anyway I just spoke to the experts at our local performing rights association. I was correct, if I sync the music to video then you have to do the whole deal, sync licence, purchase rights etc, in other words it costs a bundle. Except nice person says they can avoid all this by playing the music on a CD player at the same time as the video, in that case all the venue needs is a licence (which they'd have) that costs peanuts. Now that's pretty silly and obviously even the guardians of the musicians rights think it's silly. How the heck do you explain that to a client without sounding like you've gone tropo?
Bob.
Jay Gladwell wrote on 2/9/2006, 3:15 PM

... you cannot give me the right to kill you.

Silly me. I thought you were trying to have a serious, meaningful discussion on warranty isues. How absurd!

Forgive me.


MH_Stevens wrote on 2/9/2006, 3:28 PM
You are making too much of this and becoming bored, then tangetal and now adversarial.

If the client is straight he will give you a copy of the licence agreement and a receipt for fees paid - period. If he does not, tell him you must add the licence fees to your account and get a deposit to cover them until he can prove them paid. If he baulks you need ask yourself why you are working for this guy.

Michael
farss wrote on 2/9/2006, 4:16 PM
Bored yes, just want to get on with it. Tangential, yes, that's how my brain works, others might call it lateral. Adversarial, I hope no one thinks that and my apologies if anything I've said sounds that way, certainly wasn't my intention.

Just emailed the client, told them what they need to do to get clearance on the music, simplest answer, make it their problem. If they go elsewhere I've lost a few bucks but kept my ethics and the shirt on my back.

Just as a small note of warning, today I've been getting some really genuine looking emails with nasty viruses attached. They're either purporting to be from people I know or from my ISP.
Whatever's happening out there it's getting smarter.

Bob.
Steve Mann wrote on 2/9/2006, 9:56 PM
"...and a receipt for fees paid..."

That's just over the top. If they have the license, the fees are irrelevant.

A warranty doesn't absolve you of responsibility, but it does give the injured party another pocket to pick.

Steve Mann
TShaw wrote on 2/9/2006, 10:15 PM
Hi Bob,

I would push hard, tell the client that you want copys of all the paper work for the music they want you to use. It's your backside.
Did the client pail on "their usual post house" or did the post house
say no to the client over this issue?

"Oh and one last thing, heck, even though the vision is from their events, hm, could they have sold the rights to that to their broadcaster"
Looks like this has raised a red flag for you. Trust your gut!

Goodluck, Terry

MH_Stevens wrote on 2/10/2006, 8:54 AM
Bob: you getting to "involved" here. It was Jay I was referring to not that I want to seem to be getting on to Jay. All I meant was I thought the question had been fully answered and when and answered thread is interesting and hence has a life after death it gets tangential and this one led to sarcasm and adversity. Not putting anyone down for that but just pointing it out. See now I'm doing it too.

Michael