…The Lawyers Are Coming.
A few years back, I was asked to moderate a digital technologies panel for AES during their show in New York. At that particular time in history, the topic of choice was still pretty broad in nature and it centered on the burgeoning live sound market and the coming age of digital console technologies etc.
One of the topics that I posed to the panel and audience was focused on the workflow challenges that were going to be associated with creating and managing show files created on these digital consoles. I distinctly remember posing this question to the panel. “Given that we’re moving into an era of console design that will allow a mixer to develop show files and settings and easily transport those settings; what positives or negatives would that bring to your daily professional lives?
As I expected, everyone quickly jumped to the obvious concept of “that’ll be great, because I can simply carry my show files with me when I’m traveling and meet up with other consoles and load my show file once there. I won’t need to physically carry a console any longer etc.”
This discussion carried on for quite some time, right up until someone on the panel, tongue firmly planted in cheek, said “yeah, and if I get fired it will take me less time to clear the console before I head for the airport”.
I paused for a moment and gathered my thoughts and pondered the scope of the follow up question I was about to ask. Kind of like a young boy holding a baseball bat, gazing up at a docile beehive preparing to take a swing. I knew this was going to be that magic moment you hope for as a moderator. That really fantastic moment when you gaze out over the crowd and the panel and KNOW you’re going to open a can of worms that no one came in expecting to discuss. You’re about to witness light bulbs flickering on above head after head, of not only the audience, but also the panel members. The conversation was about to shift to an entirely new plain and I knew at that moment our industry might actually mature just a little bit starting in 5, 4, 3, 2, …
Me: “So let me ask you this question panel members; is it your position, that you are the owner of that show file because you created or programmed it and in so doing, feel you are within your rights to take it with you when you leave, or even erase it after you’ve created it?”
There was a very brief pause for silent pondering, followed by what could only be best described as a rowdy episode of Jerry Springer. When we came back from commercial, and after everyone was seated and the security guards had left the stage, the general consensus by nearly everyone in that room on this day was that they alone retained the rights to that show file because their skill and expertise was used to create it.
(do your best Jim Carrey here) “Reeeeeeeheheheallly?” I proceeded to gently break the news to everyone that it was my belief that legally, they did not have the rights of ownership for that file and the settings it carried because it would fall under the heading of a “work for hire”. Hence those files are owned by the person paying your salary for the work; i.e; the band.
I suggested to everyone to emotionally take a step back for a second and maybe consider a few analogies to see if their claim of ownership might stand up legally. I suggested that we stay in the “arena” if you will, so that it remained an environment that we’re all intimately familiar with. Here’s what we came up with.
- Okay, let’s start with a simple and obvious one; show carpenter.
Production hires show carpenter. The carpenter over the course of a couple of weeks designs and manufactures numerous physical items and props that are used during the show. Two weeks into the tour, the carpenter develops a crappy attitude and gets fired. (I know, it’s a stretch right?) The carpenter in a fit of rage takes his chop saw and hammer out and destroys everything he built or he simply backs up a truck and loads all of “his” work up and heads for home. Was he within his rights to do so? The show now has no props etc. for the next show. Was he justified in doing so? What rights does the band have here?
- Not convinced? Okay, how about production manager?
Production manager spends months of time putting together budgets, creating spreadsheets, itineraries and doing advance work, much of which is stored on his computer or in paper documents. Just before the tour starts the production manager gets into a huge argument with the manager and the manager sends him packing. Who retains ownership of all the advance work in its digital or even paper form?
- Still not convinced? How about content creation?
Band hires a video director/editor to assemble video footage for the big screens during each song in the show. Video dude acquires the footage and builds an EDL for the show. But things don’t work out with the lighting designer and he agrees to depart, amicably no less. But he states “hey that video is my creation, my creativity was used to build those shots and that EDL for your show, if I leave that content and EDL goes with me” Really? Does he really have that right?
- Here’s one a little closer to home; lighting designer.
Band pays lighting designer to program and maybe even operate their lighting production. A week into the tour the band fires lighting designer/operator. The lighting designer/operator in a fit of rage promptly clears the console stating “let the bastards play in the dark tomorrow night for all I care”. Was he with-in his legal rights to do so? What does the band do for tomorrow night’s show?
Store these scenarios and your answers in your memory banks for a minute, because you’re going to need to recall them at the end of the next segment and see if you still feel the same way.
Recently I saw this very situation play out before my very eyes while doing some one-off work for an artist. For the record, I will not reveal any names of band, engineer or lawyers here, but I assure you this is real and actually transpired. Who the act was is of no significance, so leave it alone, but what transpired IS important so pay attention here.
The band was contracted for a series of one-off events after the end of their tour. They wanted to bring along the tour monitor engineer and FOH engineer for the one off shows. The FOH engineer declined and so I was hired to do the one-offs but the monitor engineer agreed to do the events. That is; right up until he was told that he would not be retained at the conclusion of the one-off events. This did not make the monitor engineer happy and in an attempt at retribution he departed with the show file for the monitor console in hand and left his replacement to start from scratch. Because these were one-off shows – corporate shows to boot – there would be little to no time for extensive sound checks and/or rehearsals to provide time for a new mixer to build an adequate file that would meet the bands expectation left by the other file. Read as; the production and band members were counting on the established monitor console build to help facilitate the transition to a replacement engineer and also offset the time constrains for the coming events.
What transpired over a couple of hours was tense, but predictable once the tour manager got wind of what had happened. He immediately contacted the band’s legal representative who in turn immediately reached out to the monitor engineer to apprise him of the scope of his actions and the possible legal ramifications and informed him that he could be held liable for damages related to the show.
Mixer dudes and dudettes, are you hearing what I’m saying? If not, let me clarify with an example. Let’s hypothesize a worst case scenario and say that in the story I referred to above, that at the end of the show, the corporate rep who hired the band is extremely dissatisfied with the performance by the band and demands some financial relief from the huge fee they paid to the band to appear. Please remember; this part is a hypothesis not what actually transpired at this event. The band when confronted by their manger tells him “I don’t know what was going on but we couldn’t hear a thing all night – I don’t know why are monitors were all of a sudden so different but I was really struggling to hear and perform”. (Does this actually sound familiar to anyone???) Band and manager calls in the new engineer to discuss, and as we all know, bad mojo roles down hill very fast and the former monitor engineer is lying in wait at the bottom of that hill face down, clutching his USB key with the show file on it.
Is this your mix?
At the end of the day, who do you think is going be held responsible for this situation? How badly do you think the former engineer wants those files now? Lawyer up son, it’s going to be an expensive battle for you even if you win and you’re likely going to lose because the law is not on your side on this one.
Now, do yourself a favor and stay on point. Remember, this is not at all about whether the replacement carpenter, PM, engineer, mixer, designer, editor etc. was capable or able to do the job quickly in your absence and pull off the show absent of your settings or files. That is a moot point. (nice, I got to use a legal term!) In court, this is simply the case of a disgruntled worker departing with an asset that he built, constructed, edited, programmed etc. for the employer i.e. the band, while in their hire. At its core, this is about assessing damages in favor of the employer as a result of the worker’s departure in possession of created asset that was a work for hire; nothing more, nothing less.
In the calm light of day, these can seem like semantics and ambiguities, when in fact from a legal point of view they really are quite clear. In the business world, these kinds of ambiguities are often clarified with well-tailored, written agreements between the parties in question that set expectations, clearly define work-for-hire and offer departure clauses that are clearly defined.
More often than not, while band members can place great value on our contributions as people and our skills as mixers, because we seldom use contracts we have very little to no leverage at the end of the day if it all goes wrong. Because of this, thinking you can exert punitive damages on your employer by walking off with a key asset owned by them is neither smart nor prudent. Can you imagine a software designer working for a corporation being fired and destroying all the code that he created while thinking “I’ll show them”? Would that be grounds for a lawsuit? Bet the farm on the fact that it would if they felt inclined to pursue it.
But here’s where it gets really interesting in my opinion. As live sound mixers, I don’t remember us ever thinking this way before we had digital consoles. Here’s another great panel question that requires some deep thought. “At the end of the day, how is our work on a digital console any different from our work on an analog console?” At some level, the meaningful, real difference is the portability of the settings; i.e. show files. Although, it could certainly be argued that a pencil-written console and effects ledger with a patch sheet (remember those? I do …) is the analog equivalent of a show file, it just takes longer to load. Would we as engineers be just as liable if we zeroed an analog console and effects upon a hasty departure after being fired? I submit to you that, viewed through eyes of the court, we would absolutely be just as liable. It’s just that with digital console settings and data, the asset is now just as tangible as the carpenter built and destroyed props or the digital files that the production manager erased vs. paper documents he might have shredded upon departure.
Back at the AES session, the light bulb that came on over my head was just how vulnerable and void of leverage we are as “workers for hire” in our profession even though we are often defined as independent contractors by our 1099 status. It’s easy to view yourself as more than that, as a creative collaborator on par with one of the band members i.e. the 5th Beatle. Yep, it’s easy to allow yourself to become conveniently naive about that which you are so passionate. Today we are W9 people who expect to be treated as if we work in the W2 world with all of its benefits and protections. Artist management firms tend to treat us as W9 employers but with many of the W2 restrictions when it comes to work-for-hire and generally speaking the law is a bit more on employer’s side.
What we actually are, are independent contractors who do not use actual contracts. We negotiate and secure our deals with nothing more than a handshake, and many times even less than that. And while there is freedom along with lack of red tape and process that comes with that simple meeting of the hands, there is also great vulnerability. The more time goes on, and the more mature our industry gets, the more those vulnerabilities stand to be exposed. The old saying “a handshake deal is as good as the paper it is written on” has never been more true.
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