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.
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.
What about a meeting of the minds. In that case are both parties compensated?
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.
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?
Do I continue to talk to you or another expert?
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."
"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!
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?
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.
Excellent. Thank you for the advice. I will continue my questions tomorrow.
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?
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