This cautionary BTSV story was submitted by a reader:
On a recent national advertising shoot we used our back-up camera, my new 5D MKII, to shoot some behind-the-scenes footage of me at work. We edited it down into a 3-minute video that we posted on my Facebook Group page. It wasn’t particularly exciting, but it did the job of showing me directing models and assistants. About 4 weeks after posting it, the ad agency I worked with called outraged, demanding all the fees and expenses back from the shoot, and then threatened to sue me.
At first we weren’t sure what we did wrong–we put it up well after the campaign had come out and after the agency gave us the go ahead to use shoot images for self-promotion. We had retained copyright and owned all the images. We didn’t show any video of the agency or client discussing strategy or anything like that. Although I did not announce that we were shooting video footage, the assistant who was shooting walked around in full view of everyone on the set, with a camera quite close to most people on the set. He shot quite a lot and it is evident that the AB and AD at least knew we were shooting stills.
The agency claimed that we violated the Confidentiality Clause of the Purchase Order because the entire shoot was secret, that they did not know I was shooting video and that I had no right to shoot video. We disagree with all of this, but we took the video down. Even after we took it down, they kept demanding the money back, and we spent weeks going back and forth with lawyers. Eventually they just dropped it, presumably because they knew they had no case. We think what happened was that the client found it on YouTube since we had included their name in the title, and was upset at the agency failing to control their brand. The agency was trying to make amends, and wanted to use us a sacrifice.
We were at first concerned when they argued that we didn’t “have the right” to shoot video. In other words, was it our shoot and set or theirs? In our view, a client does not own a set unless the agreement is work-for-hire. In this case, we were the production company, we hired everyone else, we rented the location, we carried the insurance (i.e. it was our production). No one could tell us what we could and could not shoot on our set.
We also amended the P.O. to give us copyright to “All images created as part of the shoot” and the right to use them for self-promotion.Tip: Always ensure in writing that you retain rights to all “Images” with an “s” or better yet, put “All images, whether moving or still.”
We left their Confidentiality Clause intact, but as it was written, it did not make the shoot itself confidential – just trade secrets and the like. The shoot itself was our work product, not theirs, and its mere existence wasn’t a secret. Tip: Just because the agency says you violated the contract, doesn’t mean you did.
However, in the future I do think it is a great idea to talk to the A.B. about behind-the-scenes video and whether it is OK with them if you shoot it and if you can use it for self promotion on your website. You may have the right to shoot it and post it, but if a jittery client doesn’t like what they see, you may lose a client and any relationship you had with the agency.
22 Comments
This is a very big deal. Agencies keep campaigns under wraps for strategic reasons and BTS videos should never be released without making sure you aren’t in violation of a confidentiality (non-disclosure) clause. Their clients are angry because it has hurt their strategic plans, I bet.
There is a ton of money at stake in situations like this. Photographers certainly do not mean to do any harm, but releasing information about a creative project, before the project has hit the media through the client’s actions, can cost a company millions of dollars.
Most agencies will be thrilled to have BTS videos made and shared–but on a schedule that doesn’t threaten their relationships with their clients. Simple cure–talk about it ahead of time and settle on a common release date. Put it in the contract.
@Leslie BAP,
Line 7: “[…}we put it up well after the campaign had come out and after the agency gave us the go ahead to use shoot images for self-promotion.”
@Leslie BAP, “we put it up well after the campaign had come out and after the agency gave us the go ahead to use shoot images for self-promotion.”
I believe that was the photographer’s main source of confusion. Yes, we all have to learn once the hard way that you ALWAYS ask the client first.
But let’s use common sense… such a fuss after the job has been published? Worst case, it more than likely exposed the photographer’s trade secrets (lighting) and not the clients. Most likely the client is just being a control freak, when in reality the interest in BTS video is so small.
Or you could do what Chase Jarvis did and turn the BTS video into part of the campaign:
Woops! I think keeping BTS video just for personal shoots is best, and often more interesting!
If you are a photographer worth your salt you wait a few months then follow up with the agency in writing stating your company is withdrawing any and all future cooperation with said agency and that you (your company, partners and associates) will consider no further commercial arrangements on any terms. You then blog about it stating the facts and naming the agency. You tee up an interview with your national professional photography association journal and lay out the situation, including naming the agency and client. Warn your peers in a very public manner about the inherent, and evident, risks associated with the agency. Remain purely factual.
Stand tall on it. If you are a good professional the work comes. There is absolutely no long run negative repercussions calling agencies out on this sort of stuff.
Call it how you see it. Stall tall. Publicly denounce the agency. Let your work be your light and be honest in your dealings. If they try to screw your reputation ultimately it will fail.
At the end of the day you are the creative professional, the content generator, the writer of the terms and conditions.
The agency has bullied you to remove your content from your website which has potentially cost you future clients.
We need professional photographers with balls – now more than ever.
No matter how much money is on the table in 99.9% of the time its never worth it to work with idiots. I would dump the agency and any potential work going forward. They wont mean a thing to you when you look back on your career.
@ Dan
Is “ironic” the correct word here? The fact that you talk about standing tall, naming names and photographers needing balls, yet you post anonymously?
@Tony Fouhse, LOL, I was thinking more along the lines of overindulgence of a controlled substance.
“Publicly denounce the agency”
Seriously? I think I see a high road over there, I’m gonna take it, thankyouverymuch.
Completely agree with Leslie BAP. Don’t ever assume anything. The client and agency are launching an idea and the time place to launch their idea is to directed by them and not the photographer.
I think the lesson here is that we’re in a growing pains period of self-promotion. The client probably never even thought that someone might be roaming around the set, shooting video.
And who knows, when they agreed to “self promotion”, in their minds, they might have thought it was only the finished, retouched, final image, and not BTS imagery, where everything looks so homemade and funky, and not in its best light.
But the main thing to remember is, like Leslie and Andy note, best to get it in writing, but also to ask, from one human being to another, and clearly describe what’s going to happen. For the client, seeing their process on YouTube might be a first for them. There is a Surprise Factor that needs to be considered.
And the last thing, don’t rule out one individual person within the client’s company, and who knows their personality, and maybe they’re just a Control Freak, (and not that that’s even a bad thing). Sometimes, it simply comes down to a personality thing. And maybe something’s gone on, behind THEIR scenes, to make a client touchy and sensitive about a project.
So yes, learn the lesson, and ask first. And make it clear. I feel bad for this photographer, but the upside is, hopefully other photographers are learning something to avoid a future blowup.
the photographer was wrong shooting video without permission and wrong for posting it without permission. did anyone sign a release for this promo usage? did the models or their agents know you were shooting video for your promo needs? just because the camera shoots video doesn’t mean you have the right to use it in a commercial way.
just my thoughts
thanks
jonathan
A word of caution about the cautionary tale. We’re only hearing one side of this story. While I have no cause to question the veracity of the information; there were two other key parties involved — the agency and the client. Their versions of the story might be different.
The sequence of events recounted here don’t add up. Either the client, or the agency, vastly overreacted; or some key pieces of the story have been left out. My gut leans toward the latter.
Threats of legal action and demands of repayment of fees suggests to me that either the client, the agency, or both did not leave this shoot delighted with the experience. Then a BTSV appears and someone went ballistic. There certainly could be posturing here — someone smelled an opportunity to negotiate a discount and decided to throw phony outrage at the problem. Or the client, or agency, could simply be jerks. But the reaction seems to exceed the circumstances. It would seem much more rational to simply call the photographer and say “this BTSV is causing a problem, could you take it down?”
Here are my take-away thoughts from this story:
1. If you want to do a BTSV, do it with people you know and trust. Everyone has clients they’ve worked with in the past and have built a strong relationship. Those clients will be much more supportive of your promotional efforts than strangers.
2. There are legal rights, then there is doing the right thing. No one likes to be blindsided. Would it have been that difficult to run a three-minute video past the agency and client before posting it just to make sure everyone is on the same page? Presumably any BTSV you would produce would make everyone involved look good. So why not give the agency/client the opportunity to review it? I can see standing your ground if the review comments were unfair. But when the discussion starts off with a debate over who owns the set, I really have to wonder about how this situation was handled.
3. A commercial photographer is hired help. Of course you have talent and expertise, but in the scheme of an advertising campaign a photographic shoot is a cost. You may be worth every penny of your fee, but the people paying for your services expect your undivided attention. Image is important here. If you are doing a promotional video, you need to make it clear that any time devoted to the video is not being charged back to the client. Imagine if a plumber came to your house with a video crew to shoot his work. Would you be happy paying for three-hours of his time for an hour job?
4. You need to discuss the BTSV up front. I’m all for getting the verbiage in the contract correct to protect your copyright and legal rights; but the client shouldn’t have to interpret the fine print in the contract to decipher your plans. You need to inform the client of your intentions and you need to have the business case prepared for how a BTSV is mutually-beneficial for both the photographer and the client.
I could make so many smart remarks to the posts for this article. I think for the most part many make it too complicated in what has truly been said.
The end result is there was a breakdown in communication. It seems only 99% of the I’s were dotted and tees crossed and clear concise communication completed on all the parties parts.
I am sure next time a photog has the idea about shooting a BTS video everything will be communcated, hey you never know, they may even want to use it and you can get paid for it to boot.
Hey Dan, man up and let every one know who you are, this is not te first time you have been called on this.
Hey pursue the Passion………..
Well, You just lost that client, and I can bet that a referral is not in your near future. Have fun in the unemployment line.
I am really surprised at the idea that if you stipulate in your PO that you retain copyright than that absolves you of any responsibility in terms of shooting and then circulating this BTS. As someone mentioned, what about my right as the Art Buyer on set to not be used in your promotion? I think it is extremely presumptuous to think that anything that you capture is open for public consumption just because you’ve claimed that right. It’s presumptuous as well to think you can dictate what the client should care about or not (the ad already ran so it’s OK to show the BTS).
Some clients are absolute control freaks about their brand (some Art Buyers too) and, to my mind, this is entirely appropriate and well within their prerogative.
What about the model that was “unrecognizable” in the still image but is now recognizably associated with that brand because of your Facebook post? I’ll bet you dollars to donuts that a talent agent will try to claim that his client now needs a usage fee.
As many have said, you’ve lost that client. Doesn’t matter how right you might think you are, you’ve lost that client. But it didn’t have to be that way.
As an Art Buyer, if you blindside me like this, I’m going to be furious and I’m going to think you’re stupid. On the other hand, if you ask me in advance, I’ll do all that I can to shepherd your request through agency and client approvals and help them possibly see the value in your BTS, something that they may want to license additionally.
I would be angry too if I were the agency.
They paid you to produce photos for them that day…. not to produce a self promotion video.
Your staff’s time and attention should been completely focused on the client’s photos and needs…not shooting video for you.
Although I agree with Mario…images first, BTS video second….my weblog and BTS videos have more than doubled my business. I receive emails daily from ABs, CDs, PEs and subjects* alike commenting on my last shoot or a shoot several weeks earlier. ITS CALLED SOCIAL NETWORKING and it’s the newest means of advertising. Photographers have never had it better as far as promoting their business. No more Workbook and Yellow Pages. Websites and Weblogs, Twitter and Facebook are the new way of reaching Art Buyers of all types in all industries. Jump on and hang on!
* Recently had a SUBJECT ask me to remove her from a BTS video! ALWAYS notify everyone involved that they are on camera and could appear online; have releases signed if possible! P.S.S. Trying to work out a deal with BMI and/or SESAC to create an easier way to pay for music licensing online. Keep your fingers crossed.
I think it’s very likely they thought the assistant was shooting stills of them, and were confused by the form factor of the 5DM2. To not tell them that you were shooting motion of them, and thus to make them unwitting (and uncompensated!) actors in a commercial for you, is both unprofessional and rude. Sorry, shooter; I’d love to back you up, but this one you pooched.
Emphasis and comments mine:
“Although **I did not announce that we were shooting video footage**, the assistant who was shooting walked around in full view of everyone on the set, with a [stills] camera quite close to most people on the set. He shot quite a lot and it is evident that the AB and AD at least knew we were shooting stills [but not video].”
Also, generally, NDAs usually encompass any information defined as “not explicitly made publicly available by the Company” (wording from one such NDA I’ve seen), so the photographer possibly/probably did violate the NDA. Choice of crew, talent, techniques, seemingly mundane discussions on set, etc. could all be considered “proprietary information”.
Regardless of the nitpicky legal fine points (which we have no way of knowing in this case), there are legal rights and there’s common sense and this photographer has only one out of the two at best.
From the photographer:
OK, We admit it, we totally screwed the pooch by not asking permission for the video. Lesson learned. In our defense, we weren’t trying to pull one over on them, we just didn’t think anyone would care about a video on our Facebook page. But that small audience that we had in mind became a potentially very large audience when we made the huge mistake of not self-hosting. In order to put the large video on FB we hosted on YouTube, and stupidly put the name of the client in the title, which then created a potentially very large audience of anyone searching YouTube for that brand. We doubt more than a dozen people ever saw it, but the Client did, and that’s what mattered.
Still, doesn’t anyone out there think the agency’s reaction to our 12-hit video was a little much? We focused on the legalistic stuff in our story because they threatened to sue us and demanded back *all* the fees *and* expenses from a shoot they were happy with and used in a national campaign – tens of thousands of dollars. We spent weeks dealing with lawyers, arguing over a nonsense legal claim, and would have been in serious trouble had we not amended the contract in the first place. We took the video down the second they asked us to, and we feel like we were badly bullied. Is that kind of behavior from an agency so standard that it’s not even worth commenting on?
As for @dude’s point about the wording of the non-disclosure clause – we wish we could post it, because it said nothing of the sort. Had it been worded to protect the shoot itself, or had the AB even mentioned to us that they wanted the shoot to be confidential, we would have respected that. In the past, agency folks and clients have loved our BTS stills and asked for 8x10s, and permission for them has always bee tacit. We didn’t think of video any differently, but clearly social media’s potential for fast, widespread, and unintended distribution has changed things.
Wow, It amazes me how some people already have their opinions ready to be written here before reading the full post.
they… “We edited it down into a 3-minute video that we posted ”
they… “We put it up well after the campaign had come out and after the agency gave us the go ahead to use shoot images for self-promotion. “
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