Personal work used without permission, and tides turned.

[mardellion]

Hi everyone.

I'm in a rather sticky situation and I'd love to seek some help/guidance/opinion.

Snippets of a timelapse video I created was recently used and broadcasted on local television without permission. I confronted the production house and sought compensation. They were agreeable to compensate me but after a few emails exchanged, they demanded a 'scanned copy of original copyright certification by IPOS (Intellectual Property Office of Singapore) registered on or before XX 2015. This is to ensure no other party can claim ownership of this video.'

They also did mention making an appointment with Commissioners for Oaths to make a declaration.

After which, I emailed IPOS and they replied:
"There is no need to file for registration to get copyright protection. An author automatically enjoys copyright protection as soon as he creates and expresses his original work in a tangible form, such as in a recording or writing. Originality simply means that there is a degree of independent effort in the creation of the work.

A copyright work created by a Singapore citizen or resident is protected in many countries overseas by virtue of international agreements. Generally, under these international agreements, the work of a Singapore citizen or resident would be protected in countries that signed the agreements as though the work was made there."

After exchanging few emails, this is the latest reply from the production house:
"Say for example, if you were asked (commissioned) to shoot this footage by another individual or organization (commissioner), then they will own the footage you have shot for them. So, even if you compiled this video and uploaded it on YouTube under your account, you may have used footage which was commissioned by someone else, hence the commissioner will own the rights to that footage.

You have claimed ownership of this video and we repeat that we do not doubt that. All we are asking for is proof that you are the sole owner of the visual content used.

It simply means that you have to produce a copy of declaration stating the facts of ownership and the date of creation, made before a Commissioner of Oaths on or before the XX of June 2015. Or you can also provide us with documentation to prove that your original work has been deposited in a depository.

A retailer has the right to ask a manufacturer for legitimate documentation before proceeding with any business transaction. We are not delaying the agreed payment. We asked you to prove your work is original and belongs 100% to you on 19th June 2015, we are waiting for an appropriate reply.

We are a PTE LTD company which is audited for all our transactions and need proper documentation to justify any expense incurred on our projects."

Here is the question. I didn't make any declaration before the Commissioners for Oaths before, and now the production house is not releasing the compensation because I am not producing any proof that I am the sole owner of the video. Is there anything that I can do about this?

 

[Octarine]

Have you contacted the Commissioner of Oath? They should be able to tell you how it is done.
Of course, if there are any fees don't forget to charge it to the production company. They have asked for it.

 

[mardellion]

Have you contacted the Commissioner of Oath? They should be able to tell you how it is done.
Of course, if there are any fees don't forget to charge it to the production company. They have asked for it.

I didn't because the production company stated they want the proof before the stated date when I contacted them, which I didn't.

 

[JacePhoto]

Get IPOs involved. That's what they are there for.

You shld let us know the name of this company too!

 

[mardellion]

Get IPOs involved. That's what they are there for.

You shld let us know the name of this company too!

I've just replied IPOS again, seeking their advice regarding this.

For the sake of the company, I won't reveal it. Not yet at least..

 

[Octarine]

I didn't because the production company stated they want the proof before the stated date when I contacted them, which I didn't.

Very questionable and I would not trust such a demand.
Validity of IP does not depend on some oaths. See IPOS reply which you quoted initially.

 

[kandinsky]

I kinda see where they are coming from. It's not unlike the agreement that one agrees to when you supply stock photos/footage to stock agencies or direct clients (see below for example), that declares you are the content creator and you have the power to grant the license to them, indemnifies them etc. You could think of it as a sales/license agreement. What's odd to me is that this company is being pretty specific about the format. You could very well draft your own license agreement and sign it and that should suffice, especially if you are a registered business.

By uploading Content, you are warranting that you own all proprietary rights or are the authorized representative of the applicable copyright owner(s) of such Content, including copyright, in and to the Content with full power to grant the rights contemplated in this Agreement. In addition, unless the Accepted Content is identified as ‘for editorial use’ in the manner and form prescribed by iStock, to the extent that the Content contains images of people or persons, you represent and warrant that you have obtained as part of the Descriptive Information a valid and binding model release from all required parties in substantially the same form as model release that will permit the uses for such Content contemplated in this Agreement and that you will keep the original release and provide a copy to iStock if requested. You also warrant that where required by applicable law, you have also obtained a valid and binding release in substantially the same form as property release relating to any identifiable property contained in the Content that might sensibly lead to the identity of or be required by the owner of such property to permit the broad uses, including commercial use, of Accepted Content by iStock and its Distribution Partners’ customers. Where the Content is identified as ‘for editorial use’ the Supplier represents and warrants that the Content has not been manipulated, modified or processed in any manner that might distort the contextual integrity of the Content. For greater clarity, cropping and brightness/contrast corrections are permissible where the integrity of the Content has not been distorted.

The Supplier agrees that neither iStock nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content or Descriptive Information, or any error, omission or other matter relating to a model or property release respecting Content or Descriptive Information.

http://www.istockphoto.com/asa_non_exclusive.php

Sounds like it'll cost about $20?

https://www.supremecourt.gov.sg/default.aspx?pgID=51

 

[richiemccaw1]

It is very fishy - sounds more like they are trying to make it as difficult as possible so you would give up on any potential claims. In fact it may be the case that they already have a proposed compensation figure in mind. It is likely it would not be that big a figure so they would rather make you give up than to make any payment at all since they assume you would not want to go that far to claim a small amount.

With respect to the 'proper documentation to justify any expenses' part, as long as you are a third party, there should not be any concern that your fees or compensation should be of a personal or fraudulent nature. It's like we pay $200 for Air Jordans even though we know the shoes likely cost only $20 to make - does Nike's auditors consider the costs of making Air Jordans as not being arm's length, or worse still of a fraudulent nature? When a company hires a professional photographer who charges S$3k to cover a day's event, would the professional photog have to submit all relevant paperwork to justify that he owns the rights to the photographs?

You may also wish to consider offering the production house by offering to put down in writing that you own the sole rights to the video that you have made and that you have not assigned or sold the rights to anyone else, and to provide a written invoice/receipt to the production house for the payment due. A written representation should hold quite some weight.

 

[zaren]

whole lot of BS from the production house. just threaten to sue them if they don't pay up.
copyright is automatically created once you have an original, creative, tangible piece of work.
there is no requirement for declaration before commissioner of oaths etc.
all you need is proof that the video was created by you and owned by you.
let the production house also prove that they obtained a licence from the copyright owner (you) before using your video, and argue the case before a magistrate.

 

[Kermitfm]

Looks like the production house is trying to overload you with administrative stuff to discourage you from pursuing payment. If they demand such 'professionalism' from you, you can return the favour by charging them a professional fee for the licensed use of the video. If they want outright ownership, then charge accordingly. These are some of your options:

1) Go to the commissioner of oath and declare that you are the creator and owner of the work. The declaration can also be specific as to the date of your ownership. Making a false declaration is a crime so this should be sufficient. In any case, if they continue to drag their feet, this may come in useful if you have to sue.

2) If you want to pursue this to the end, engage a lawyer. The lawyer can advise you and help to write the letter. Note that most lawyers will want all the facts from you before he can draft the letter. The lawyer may want to include MediaCorp (if they are the broadcaster) in the law suit. The broadcaster would probably be protected by an indemnity in their contract but it will give the production house a bad name which means they may lose future business from them.

3) Inform the production house what you intend to do. Cost in your time and effort to handle all this.

You should also include reimbursement for the admin time and effort in addition to the license fee for the video.

 

[pettypoh]

broadcast on local television and production house didn't ask for your permission first?

should be worth your while to engage lawyer already =)

best of luck!

 

[mardellion]

Hi all. Thank you so much for taking time to guide me and giving me your opinions. Basically, I've emailed the production house quoting what IPOS told me, and have yet to receive a reply and they did not pick up my call when I call them earlier.

I kinda see where they are coming from. It's not unlike the agreement that one agrees to when you supply stock photos/footage to stock agencies or direct clients (see below for example), that declares you are the content creator and you have the power to grant the license to them, indemnifies them etc. You could think of it as a sales/license agreement. What's odd to me is that this company is being pretty specific about the format. You could very well draft your own license agreement and sign it and that should suffice, especially if you are a registered business.

Sounds like it'll cost about $20?

https://www.supremecourt.gov.sg/default.aspx?pgID=51

The production house say it was for their admin purposes as they monitor every fund that goes out. I am a freelancer, not under a registered business. The guy at IPOS told me it should be $20 too.

It is very fishy - sounds more like they are trying to make it as difficult as possible so you would give up on any potential claims. In fact it may be the case that they already have a proposed compensation figure in mind. It is likely it would not be that big a figure so they would rather make you give up than to make any payment at all since they assume you would not want to go that far to claim a small amount.

With respect to the 'proper documentation to justify any expenses' part, as long as you are a third party, there should not be any concern that your fees or compensation should be of a personal or fraudulent nature. It's like we pay $200 for Air Jordans even though we know the shoes likely cost only $20 to make - does Nike's auditors consider the costs of making Air Jordans as not being arm's length, or worse still of a fraudulent nature? When a company hires a professional photographer who charges S$3k to cover a day's event, would the professional photog have to submit all relevant paperwork to justify that he owns the rights to the photographs?

You may also wish to consider offering the production house by offering to put down in writing that you own the sole rights to the video that you have made and that you have not assigned or sold the rights to anyone else, and to provide a written invoice/receipt to the production house for the payment due. A written representation should hold quite some weight.

Yes, after everything, I'm feeling very uneasy with their arrangements too and suspect that they are trying all means and ways to make me give up on any potential claims like what you have said.

I have taken note of your suggestion to have the production house put down in writing for the terms and conditions. Thank you!

whole lot of BS from the production house. just threaten to sue them if they don't pay up.
copyright is automatically created once you have an original, creative, tangible piece of work.
there is no requirement for declaration before commissioner of oaths etc.
all you need is proof that the video was created by you and owned by you.
let the production house also prove that they obtained a licence from the copyright owner (you) before using your video, and argue the case before a magistrate.

I have contacted a lawyer and was advised not to sue as I cannot quantify the loss/damage done as I am a freelancer. To the production house, the way to prove the video was created and owned by me is to make a declaration before the Commissioner of Oaths. They also didn't obtain a license before broadcasting it, so I shall see what the Commissioner of Oaths advice regarding this if we were to go down.

Looks like the production house is trying to overload you with administrative stuff to discourage you from pursuing payment. If they demand such 'professionalism' from you, you can return the favour by charging them a professional fee for the licensed use of the video. If they want outright ownership, then charge accordingly. These are some of your options:

1) Go to the commissioner of oath and declare that you are the creator and owner of the work. The declaration can also be specific as to the date of your ownership. Making a false declaration is a crime so this should be sufficient. In any case, if they continue to drag their feet, this may come in useful if you have to sue.

2) If you want to pursue this to the end, engage a lawyer. The lawyer can advise you and help to write the letter. Note that most lawyers will want all the facts from you before he can draft the letter. The lawyer may want to include MediaCorp (if they are the broadcaster) in the law suit. The broadcaster would probably be protected by an indemnity in their contract but it will give the production house a bad name which means they may lose future business from them.

3) Inform the production house what you intend to do. Cost in your time and effort to handle all this.

You should also include reimbursement for the admin time and effort in addition to the license fee for the video.

I fully agree. This is getting too worn out that I am starting to feel dejected. I have consulted a lawyer but was advised otherwise because I cannot justify the loss done as I am only a freelancer. What made it even more suspicious is that they stopped replying my email for now. Going to wait for another day or two before I consult the lawyer again.

broadcast on local television and production house didn't ask for your permission first?

should be worth your while to engage lawyer already =)

best of luck!

I was advised not to engage a lawyer cos I cannot justify the loss done as I am only a freelancer Would love to escalate the case but it doesn't seem in my favor for now.

 

[mardellion]

Very questionable and I would not trust such a demand.
Validity of IP does not depend on some oaths. See IPOS reply which you quoted initially.

exactly! the production house is demanding this even though they understand it does not depend on a Oath.

 

[pettypoh]

i'm guessing what they need is some form of sworn statement that you own the rights to the video and that there won't be any other persons or companies going to them to ask for payment for licensing as well

but for this scenario where they were the ones who committed the "error" first (as in using without your permission), i think they should really reconsider what they are asking before this thing gets too far

 

[catchlights]

is there any figure being mention on the compensation?

if no, than go for an oat, and send them an invoice with a figure they will be regretted to ask you go through this, of course, you need to set a payment due date...... as short as possible.

so if you don't see the cheque in your letter box after the due date, you can go to small claims tribunal to file for a claim, remember, you can only fill for a claim not more than S$10,000.00, so don't be too greedy.



but before you try this, ask your lawyer to patch out any lobang on this first.

 

[zaren]

"I have contacted a lawyer and was advised not to sue as I cannot quantify the loss/damage done as I am a freelancer. To the production house, the way to prove the video was created and owned by me is to make a declaration before the Commissioner of Oaths. They also didn't obtain a license before broadcasting it, so I shall see what the Commissioner of Oaths advice regarding this if we were to go down."

Of course you can quantify the loss/damages, even as a freelancer. A freelancer means you do paid assignments as and when requested by your client. In this case, if the production house had come to you in the first place to commission you to make the video, how much would you have charged them? If the production house had come to you and asked for your permission to air your video on national TV, how much would you have charged them? That will quantify the loss/damage suffered by you in this instance that they used your work without permission, thereby depriving you of your rightful earnings, even as a freelancer.

Still not sure how to quantify the amount of damages to be claimed? How about starting with the number of hours you required to make the video, including planning, writing, hiring actors, filming, and post-production etc. Add in the cost of hiring a lawyer to issue a letter of demand to the production house etc. I'm not sure which lawyer you are talking to, but you may wish to seek a second opinion to be sure of your legal rights and remedies.

It costs roughly $140 to issue a lawyer's letter of demand to the production house. You will have to decide if it is worthwhile for you to do it. A sworn statement before the Commissioner of Oaths unfortunately does not carry much weight in resolving such disputes. Why? every one swears in court to tell the truth, but the court does not make a judgement based purely on sworn statements (affidavits), because both sides will obviously swear to tell the truth. How do you know who is lying is who is not? Good solid evidence, on the contrary, is much more persuasive in deciding the issue.

 

[zaren]

is there any figure being mention on the compensation?

if no, than go for an oat, and send them an invoice with a figure they will be regretted to ask you go through this, of course, you need to set a payment due date...... as short as possible.

so if you don't see the cheque in your letter box after the due date, you can go to small claims tribunal to file for a claim, remember, you can only fill for a claim not more than S$10,000.00, so don't be too greedy.



but before you try this, ask your lawyer to patch out any lobang on this first.

There is no (breach of) contract involved here in the sale of goods or services, so small claims tribunal is not applicable in this case.

 

[catchlights]

There is no (breach of) contract involved here in the sale of goods or services, so small claims tribunal is not applicable in this case.

this company won't pay money if there is no invoice right? so when a invoice being sent, a contract is established, so if no payment being received, than SCT is the way to go.

 

[zaren]

Good solid evidence....

The production house sent you an email, stating "You have claimed ownership of this video and we repeat that we do not doubt that."

(Then add your own evidence that you own the video e.g. the original high-res video and high-res stills used to make the video timelapse etc)

You can work out your losses/damages, you have a written admission by the production house that you own the video.
Looks like good enough reasons for your lawyer to issue a letter of demand to the production house, no?

 

[zaren]

this company won't pay money if there is no invoice right? so when a invoice being sent, a contract is established, so if no payment being received, than SCT is the way to go.

The basic elements of a contract are mutual assent, consideration, capacity, and legality.
In this case, there is no mutual assent (agreement) or consideration (amount of payment stated, such as fee).
So, there is no contract. However, mardellion can sue under Tort Law (wrongdoing).