How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Dimitry K., Esq. Your Own Question

Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Intellectual Property Law
Satisfied Customers: 37621
Experience:  I assist my clients with IP questions that arise in their daily course of doing business.
18572087
Type Your Intellectual Property Law Question Here...
Dimitry K., Esq. is online now
A new question is answered every 9 seconds

I have a video that I created and produced, I let a local company

Resolved Question:

I have a video that I created and produced, I let a local company (company 1) use it for a trade show and their personal website for a product trade far below the value of my footage. I was ok with this. I just found out that they sub licensed it to someone else (company 2), who edited it, used it amongst their footage, they had 20 advisors on the episode, and it was aired on Fox Sports Sun Sports 12 times in Florida. The initial HD footage that I gave the company was 5mins 37sec with a potential value at $135/sec equalling $45,495.00. 2mins 35secs was used from the people who obtained the illegal sub license, with some repeating footage. My footage was also used out of it's original dimensions making it stretched out and disfigured. 4 large companies had their product name posted across my footage during a commercial. I have 2 emails from 2 separate people in company 1 stating they gave them rights to the footage. I have conflicting emails and texts from company 1 for the reasons why they did it. I have emails that state something very different from company 2 and that what I was told was a lie from company 1. My questions are: Who can I go after in this situation and what type of compensation & damages can I seek? Are the 20 advertisers responsible for payment? I've contacted a Lawyer, they are going to accept my case, but I have to pay out of pocket until a decision is reached. That is very costly for me, my wife and 2 boys (1&3). I don't know how long it will take and I don't know if I can afford it. It is going to effect working relationships within the community for me. I would like to settle out of court and see if I can get the company to continue a working relationship, where they promote me, send me to locations where I promote them, I still give them product, for x amount of years. I would like to receive a small monetary settlement from them also. My product is footage that has never been seen before and is very difficult to obtain and is very unique.
Submitted: 10 months ago.
Category: Intellectual Property Law
Expert:  Dimitry K., Esq. replied 10 months ago.
Thank you for your question. Please permit me to assist you with your concerns.

You said that you 'let' a company use your footage. Was that based on some sort of a written contact? Did you grant them a license, or did you fully transfer rights to the footage? Did they formally acknowledge and list your name or your company name on the footage when they posted it? I ask to try to figure out if Company 1 did anything legally actionable or not in this instance--thank you!
Customer: replied 10 months ago.

We had a verbal agreement. But now it seems like we are having a "meeting of the minds" moment where they are saying that they lent me the product and that I gave them the film and that it is their "asset." No, email states that and I have texts and emails suggesting the opposite. I never gave them permission to "sub license" it out to any other entity. I told them they had give me "credits" on their site and had to ask for permission if they were going to post it anywhere else. Company 1 asks me in a text shortly after our verbal agreement asking if they can post the video on a site where they sell their product. I let them know that they needed to credit my website and my name. I also stated that I needed a link. I don't think they posted it and I never heard back from company 1 on that issue. So, no on the transfer of license and no on the rights. I am new to this and I have given only 3 people the right to post my video.


 

Expert:  Dimitry K., Esq. replied 10 months ago.

Thank you for your follow-up, Jeffrey.

 

Please understand that I am going to answer purely based on the facts that you have provided, and if that information is not favorable to you, please do not blame the proverbial messenger. An oral agreement is not enough. If you transfer, provide, or give over your own assets such as your footage to someone else, the transfer is deemed to be complete, meaning that you transfer ALL of your rights, including your intellectual property. If you gave them a written agreement stating that they have a license, then they could not use the footage as they saw fit, but an oral agreement does not provide you with such protection.

 

As it stands they legally could edit, splice, sell, transfer, or give over what was once your footage to someone else because you technically transferred rights to this footage to them without any formal limitation or requirement. You didn't have to give them a license to sub-license, you essentially transferred to them your whole unfettered rights because there was nothing in writing stating otherwise. Because of this I see an uphill battle at best because there is no evidence that you transferred limited rights to them. Company 2 here is not at fault provided they credited you and your work in their edit. If not, they could be sued for infringement based on failing to give you proper credit. But I am not seeing Company 1 at fault unless you can find evidence in writing that you transferred only a license and limited rights. Otherwise they treated this as their property (because it appears that it was, even if not intentionally), and could utilize it as they saw fit.

 

Good luck and please take care.

Customer: replied 10 months ago.

What about a meeting of the minds. In that case are both parties compensated?


 

Expert:  Dimitry K., Esq. replied 10 months ago.

Jeffrey,

 

I am unclear as to what you are referring to as a 'meeting of the minds'. What governs is what can be proven, which in this case is what is (or what isn't) in writing. If you gave them the footage but did not protect it, it is not something that is protected. A 'meeting of the minds' is essential for a contract to take place, but here giving the footage to them does not appear contractual in nature. I am not seeing how and why the parties would have to be legally compensated here.

 

Hope that clarifies.

Customer: replied 10 months ago.

The lawyer from DC said that even if we had a verbal agreement and the 'meeting of the minds' was not met, both parties would have to be compensated. He also stated that even if I gave them the footage, I still have CR rights and that they can not sub license without permission. My name is XXXXX XXXXX footage. Does that make any difference? There is nothing even stating to them that I gave them the footage for their website and trade show in 2012. So, why does "giving the footage" to them allow them to do what ever they want with it? I also have emails later stating that I was suppose to give them footage later down the line for their product. An email quote: "and we were also under the impression that in exchange for that ONE video you supplied with a couple of photographs (13) that we had permission to use it to promote our lights as long as your were always credited. Which has always been the case."


 


Is this not enough proof that their was an agreement and that we did not have a meeting of the minds?


 

Customer: replied 10 months ago.

Do I continue to talk to you or another expert?

Expert:  Dimitry K., Esq. replied 10 months ago.
Jeffrey,

I am not quite sure I completely agree with the other attorney. If you gave them the footage, their claim can be that the fact they put the footage upon their site and credited you is the compensation that you received, that is, that your property was disseminated through their website. You can rights as the creator, I agree, but you transferred those rights to them when you gave them the footage without written conditions. The attorney you spoke to did not explain that if you pursue this legally, expect to put forth about $10-$12k in legal fees and that the outcome is fairly uncertain. Frankly I see the first company's position as stronger than yours, not that you wouldn't have a fair claim via the courts that they misappropriated your property without permission. One argument may be that even if you transferred rights, it was for the whole video, and they had no legal right to cut it up or edit what is essentially your work.

Now, to answer each of your points one at a time:

My name is XXXXX XXXXX footage. Does that make any difference?
It grants you rights as a creator, but it does not mean that you retain rights to keep others from using that footage as they see fit. For example if I paint something and I give it to a friend, I do not keep the right or ability to tell my friend to not give that painting to someone else unless that was a written condition with that gift transfer.

There is nothing even stating to them that I gave them the footage for their website and trade show in 2012.
That may be, but the footage was on their site--hence it was given to them because you did not contest their showing the footage and attributing the footage to you.

So, why does "giving the footage" to them allow them to do what ever they want with it?
Please see above, because there were no written conditions denying them or limiting their rights to this footage.

I also have emails later stating that I was suppose to give them footage later down the line for their product. An email quote: "and we were also under the impression that in exchange for that ONE video you supplied with a couple of photographs (13) that we had permission to use it to promote our lights as long as your were always credited. Which has always been the case."
Credit rights are not full rights. It is simply a right to state that the work was made by you, but NOT that you still own it.

Hope that clarifies.
Customer: replied 10 months ago.

Hmmm, ok. In this case I have definitely been taken advantage of.

 

My next questions would be about emails sent before this happened.

 

In two different emails I stated that I gave them rights to use the my footage at a trade show and for their website. In one email they were asking for their product back, saying that they only loaned me the product. In that email April 2013, I stated the above and I said that I was confused on what I was receiving from the product trade. I asked to get into a contract or that they put it in an email so that we were clear on the trade. I did not get a response.

 

Email 2, August 2013 I stated that "I gave them footage to use for their trade show, supplied them with quotes, that they altered to what they felt was better and material for their website."

 

Would that show ambiguity or that my understanding was clearly a different intent than what the company 1 was?

 

 

"But what happens if (1) a term or a provision is ambiguous, (2) there was a fundamental misunderstanding of a term which somehow did not surface during the negotiations, but (3) the parties still signed—was there truly a "meeting of the minds" such that the contract is binding? The legal answer is somewhat counterintuitive but it is nonetheless based upon the obvious application of equitable principles. If both parties, or neither of the parties, knew that the other side had a different interpretation, then there is no binding contract. On the other hand, if one party had no reasonable basis for believing that the second party had a different understanding, but the second party had a reasonable basis for understanding that his or her interpretation was different from that of the first party, then the court will likely find that there was a meeting of the minds and will interpret the contract in accordance with the first party's intent. See, Merced County Employees v. County of Merced (1987) 188 Cal.App.2d 662; Restatement of Contracts 2d § 201(2)."

 

"This rule essentially penalizes a party for not being straightforward, consistent with a similar legal rule that an ambiguity should be construed against the party causing it to be present. CC § 1654."

 

http://www.cwclaw.com/publications/articleDetail.aspx?id=236

Expert:  Dimitry K., Esq. replied 10 months ago.

Jeffrey,

 

"Ambiguity" exists where a contract exists. I am not seeing a formal agreement here. I am well aware on what ambiguity may be in certain contractual terms, but the way that is utilized is generally if there is a written agreement or set terms that one party creates and the other legitimately reads the terms to mean something else, but something that is still legitimately able to be read into the language. Furthermore, since you were the one who wrote the terms, then any ambiguity is read against you (as you were the creator of the language). Hence, that does not help much. If they wrote the terms and provided them to you, and you attributed different legitimate meanings, then ambiguity is a potential argument. Further, there was no 'signing' here, there was no contract, so the claim for ambiguous terms fails. ALL of the conditions must be met, and as there was no formal signing but an oral agreement, it is tough to prove ambiguity.

 

 

Please understand that I am not intentionally trying to provide you with an unfavorable response, I am trying to give you as honest of an analysis as I can provide you with.

 

 

Please be well and kindly do not forget to positively rate my answers so that I can obtain credit for my work. Thank you!

 

Sincerely,

 

Dimitry, Esq.

Customer: replied 10 months ago.

No, no, no. The answers that you are giving me are great. I am just trying to convey to you all that is in a slew of emails to see what chance I have and how to protect myself in the future. I imagine it's like trying to see a whole picture when you only have a quarter of the puzzle pieces. But you clearly seem to think that I would have a uphill battle. But I would like to get as much info before I sign any agreement with a lawyer willing to take my case or to somehow sit down with the company to work something out that will benefit both of use from having to go to court.

 

I was under impression that Oral Contracts were enforceable in California. Is that not the case? If I have enough content with emails supporting my claim, would that not be enough to be considered a contract?

 

If they continued business under what was stated in a previous email about product trade,i.e. he gave me a 4th light that was originally promised to me 3 months after the email questioning our agreement. Would that be acknowledgement of the email? He asked me what the original agreement was, I told him, he gave me the 4th light to honor that agreement.

 

My video and screen grabs of my video are being used with company 2's name all over it. Can I cease and desist with both companies?

 

 

 

Expert:  Dimitry K., Esq. replied 10 months ago.

Jeffrey,

Oral contracts are enforceable in all states. The problem is not their enforceability but proof of terms.

The 'agreement' you are referring to only referred to them acknowledging you as the creator of the work. It did not touch upon actual ownership or transferable rights. I therefore do not see that as significantly powerful in your favor. Until you can prove ownership (rather than than rights as a creator), you can try a cease and desist but I doubt it would be granted. The best way to get it is to claim that since ownership is the factual issue, until ownership is decided, the clips should not be played. Good luck and please take care.

My apologies but it is very late here and I will be logging off to get some rest. If you have additional concerns I will reply to them once I log back online. Please be well.

Customer: replied 10 months ago.

Excellent. Thank you for the advice. I will continue my questions tomorrow.

Expert:  Dimitry K., Esq. replied 10 months ago.
Jeffrey,

I look forward to more of your questions. Thanks.
Customer: replied 10 months ago.

Ok, so my next question is about the definition "gave" that you are referring to. If I gave them a link to a website of mine is that giving them rights to everything on it. If I gave them a link to a Dropbox folder, does that give them automatic rights to everything on that Dropbox folder?

 

If a USB stick was giving to them to use and their was multiple items on the USB that they were not given permission to use, would they still have rights to all of it because I "gave" it to them? i.e. there was two videos that were on the USB or in the Dropbox folder and they grabbed the wrong one. If it wasn't played up until this moment how would I know they had the wrong one. On their website for the last year, they had a link to my Vimeo page which has the other version that they were suppose to use. Not until this moment, did I know that they used the wrong one. Do they still have the rights? To the film that wasn't meant for their use? I find it hard to believe that they can disseminate how ever they please.

 

Company 2 seems to be cooperating and sent me a thread of all the emails. If it clearly shows that they knew about the handling of video footage well before they claimed and that the response from Company 1 on Oct 7th was:

 

"They hired a guy to shoot their own fluoro video but they guy had no idea what he was doing apparently and the video came out terrible. They had NOTHING to cut the show together with at the last minute, so they called asking us desperately for permission to use your video. And given that you were out of the country, I thought since that is the one video you have been letting us use, and that if they credited you properly that it would be ok."

 

When in actuality there is an email stating that they knew about this on Sept 7th and that everything she stated in the above was not true. I have text messages back and forth with her on the Sept 13th and nothing was said about the use of my footage at all.

 

What I am trying to show is that we had an "oral agreement" with a lot of it talked about or backed up through email and texts. Also, that we apparently did not have a meeting of the minds on multiple emails and they continued to disregard that by not responding. Is there any proof that their intent was malicious and that they were not straightforward? Or does "giving" them permission to use my footage at the trade show and for their website without a contract, trump anything that I can show? Is that the end all?

 

If I cannot proceed any further in damages and (illegal) sub licensing How can I get my rights back to my footage?

 

Going back to the top when you ask if I "released the rights to them." I clearly, orally or written, never released my rights to the film.

 

Your painting example, can the friend who was given the painting go and replicate it as many time as he sees fit and sell it to as many people as he wants? Or does he reserve some rights?

Expert:  Dimitry K., Esq. replied 10 months ago.
To answer:

Ok, so my next question is about the definition "gave" that you are referring to. If I gave them a link to a website of mine is that giving them rights to everything on it. If I gave them a link to a Dropbox folder, does that give them automatic rights to everything on that Dropbox folder?
Anything within that folder that is not protected is indeed theirs to use--giving them access is the same as granting them rights to those files.

If a USB stick was giving to them to use and their was multiple items on the USB that they were not given permission to use, would they still have rights to all of it because I "gave" it to them?
Two separate issues. Giving someone a data stick but expressly stating that they are entitled to one file only grants them rights to that one file. But giving data without formal (meaning written) restrictions does grant them rights to all files on that stick.

i.e. there was two videos that were on the USB or in the Dropbox folder and they grabbed the wrong one. If it wasn't played up until this moment how would I know they had the wrong one. On their website for the last year, they had a link to my Vimeo page which has the other version that they were suppose to use. Not until this moment, did I know that they used the wrong one. Do they still have the rights?
Yes, they do.

To the film that wasn't meant for their use?
If nothing was in writing the rights obtained are to whatever is transferred via that link.

I find it hard to believe that they can disseminate how ever they please.

Company 2 seems to be cooperating and sent me a thread of all the emails. If it clearly shows that they knew about the handling of video footage well before they claimed and that the response from Company 1 on Oct 7th was:

"They hired a guy to shoot their own fluoro video but they guy had no idea what he was doing apparently and the video came out terrible. They had NOTHING to cut the show together with at the last minute, so they called asking us desperately for permission to use your video. And given that you were out of the country, I thought since that is the one video you have been letting us use, and that if they credited you properly that it would be ok."

When in actuality there is an email stating that they knew about this on Sept 7th and that everything she stated in the above was not true. I have text messages back and forth with her on the Sept 13th and nothing was said about the use of my footage at all.

What I am trying to show is that we had an "oral agreement" with a lot of it talked about or backed up through email and texts. Also, that we apparently did not have a meeting of the minds on multiple emails and they continued to disregard that by not responding. Is there any proof that their intent was malicious and that they were not straightforward? Or does "giving" them permission to use my footage at the trade show and for their website without a contract, trump anything that I can show? Is that the end all?
Typically the fact that you gave them footage without written conditions trumps everything. Discussing something over email is not the same as agreeing to terms. The parties have to agree to limitations and if no agreement takes place (or as you call it, no 'meeting of the minds'), there is no contract. That harms your case because if there is no contact, there is no limitation to their rights once you voluntarily provided links to your information.

If I cannot proceed any further in damages and (illegal) sub licensing How can I get my rights back to my footage?
Once given away rights are lost. You CAN attempt to take them to court and retain the rights, or you can send them written notice that you are rescinding their rights to your property, but the latter won't work since you cannot change your mind once something was transferred (as I explained above).

Going back to the top when you ask if I "released the rights to them." I clearly, orally or written, never released my rights to the film.
You did when you sent them links and allowed them to post this with only the condition that they credit you as the creator. Being a creator is not the same as owner. The action itself acts as a release of rights.

Your painting example, can the friend who was given the painting go and replicate it as many time as he sees fit and sell it to as many people as he wants? Or does he reserve some rights?
He can take pictures of it and re-sell it UNLESS the creator placed a condition that he cannot do so. So yes, he can replicate it all he wants absent a written condition on the transfer. The only reserved rights are based on the creator allowing himself to claim the work as created by him, using an image of it for himself for educational use (or an image as an example of his work that he or she can show to other potential employers or clients), as that use is deemed 'fair' under law). But he does not 'own' the painting.

Hope that helps. At this time I quite fully and in significant detail attempted to answer your questions. Kindly do not forget to positively rate my answers so I can obtain credit for my work. Thank you.
Dimitry K., Esq., Attorney
Satisfied Customers: 37621
Experience: I assist my clients with IP questions that arise in their daily course of doing business.
Dimitry K., Esq. and other Intellectual Property Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Alex Reese

    Lawyer

    Satisfied Customers:

    2588
    Experienced in intellectual property law
< Last | Next >
  • http://ww2.justanswer.com/uploads/sosolid007/2010-08-05_070536_Suitpic.jpg Alex Reese's Avatar

    Alex Reese

    Lawyer

    Satisfied Customers:

    2588
    Experienced in intellectual property law
  • http://ww2.justanswer.com/uploads/scottymacesq/2009-6-10_221523_small.jpg Robert McEwen, Esq.'s Avatar

    Robert McEwen, Esq.

    Lawyer

    Satisfied Customers:

    387
    Licensed Texas General Practice Attorney
  • http://ww2.justanswer.com/uploads/tswartz123/2010-02-08_225658_Tommy.jpg Thomas Swartz's Avatar

    Thomas Swartz

    Lawyer

    Satisfied Customers:

    374
    Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    371
    I assist my clients with IP questions that arise in their daily course of doing business.
  • http://ww2.justanswer.com/uploads/personwilt/2010-1-10_164828_person1.jpg Wilton A. Person's Avatar

    Wilton A. Person

    Lawyer

    Satisfied Customers:

    339
    MBA, Experienced and Knowledgeable in Intellectual Property Law
  • http://ww2.justanswer.com/uploads/BA/bart0358/2012-1-23_232424_1056.64x64.JPG BartEsq's Avatar

    BartEsq

    Researcher

    Satisfied Customers:

    192
    Juris Doctor
  • http://ww2.justanswer.com/uploads/IP/ipesq/2012-1-9_164431_RetouchPortraitHighResCopy.64x64.jpg ipesq's Avatar

    ipesq

    Lawyer

    Satisfied Customers:

    134
    Specializing in patent prosecution, trademark and copyright registration/enforcement.
 
 
 

Related Intellectual Property Law Questions