No contracts, now actors don't want it shown

[whatuk]

Hi,
about 4 years ago I made five 5 minute comedy shorts. Initially it was for promoting myself as a director. I contacted a few comedy agencies as I wanted comedians to appear in the films. One agency put forward someone she thought would be interested. I contacted him and we started planning the film.
He put me in contact with 2 friends of his, who also said they would be interested.
So together we wrote and made the shorts, with the idea that when finished we would put them up on youtube, and people would link to them from their twitter accounts, etc.
All in all for them it was a 1 day writing session, and 2 day shoot. As there was lots of post work involved, it was about 6 months post work for me. When the films were finished we contacted a few people about them, and managed to get into a production company who optioned them for a year and wanted to put them forward for low budget pilots. Nothing happened here.
This is the point it all started to go bad. One of the comedians involved loved them, and wanted to put them up on youtube straight away. The other two went very quiet. They have more of a tv presence, and are maybe more worried of what people will think. This is the point that one of them started to talk about contracts. They had been made in a very relaxed way, none of us expected to get this much attention. We just thought it would be a laugh, and everyone agreed that we'd make them, put them up, and as long as everyone got credit and no money was involved it would be fine.
Now we are in the position where we have 5 films, which I spent 6 months making, that I can't use. One very positive actor who just wants them out there, 1 actor who wants a contract and doesn't want it uploaded cause he thinks we should continue to pitch it around, and another who is ignores any correspondence.
Does anyone have any advice on how to move this forward? seems such a shame just to let it gather dust.
I have made a trailer of it, which i have put up online, but i'm scared to show anyone or publicise it through fear of them finding out and wanting it taken down.

 

[gorillaonabike]

No-one on here is a lawyer (to the best of my knowledge) with UK legal experience. You will get lots of advice from US-types on here but UK law is different and really only a UK lawyer with entertainment industry experience will be equipped to answer this question. In addition, there may be other elements which could be critical to the story that we have not heard about.

The short, legal answer based on my understanding of the law is you cannot publish on YouTube based on the information given. The piece of law your are specifically falling foul of is the Data Protection Act, 1998. In accordance with Data Protection legislation, consent should be obtained from any individual who is the focus of a video recording in order to process his/her personal data fairly. No consent means no publishing if the person is the 'focus.'

However, if it was my skin, I'd put the videos up. My rationale is based on the following concept:

- In the UK, a verbal contract is binding and if you have strong evidence they initially verbally agreed to putting the vids up then you would win in court.
- At no point did you mention money. Therefore, if you are not doing this for financial gain and the publishing of the videos will not damage them financially or reputationally, then they cannot obtain financial restitution.
- There is no financial benefit for you.
- You can mitigate any risk prior to a court appearance if they go that far by taking the video down.
- You can reduce any financial risk to effectively zero if the comedians are not famous and you set up an SPV

If you have enough evidence (note, not 'proof,' this is different) there was originally a verbally binding agreement to place the videos on YouTube and there is no money involved, they will find it very difficult to sue you for actual money. The other element is if there is no financial gain, you can always take the videos down before it gets to court or the likely result of a small claims court will be purely and simply to take the videos down, with no court costs payable.

To mitigate any financial risk, if it were my skin, I would personally create an SPV and run it through that which means there would be zero, personal liabilities. It's a hassle but would only cost you £50.

Note that I am not a lawyer and this does not constitute legal advice.

 

[whatuk]

that's great. thanks for your advice.
yeah it's all just such a pain. really gutted we didn't have contracts now. lesson learnt.

 

[FantasySciFi]

To mitigate any financial risk, if it were my skin, I would personally create an SPV and run it through that which means there would be zero, personal liabilities. It's a hassle but would only cost you £50.

Note that I am not a lawyer and this does not constitute legal advice.

I personally would get legal advice first before posting. While US law is different from UK law, my understanding is that an SPV (or LLC in the US) only provides protection for existing not prior projects. You can't be shielded from previous misdealings. Only if you operated under the LLC at the time you created the projects would you be covered. A court could view the new corporate entity as a 'sham' set up after the fact that pierces the corporate veil allowing them to go after you directly. Again, I'm not a lawyer so I am not providing legal advice. While I'd like to say nothing would come from posting them, Murphy's Law suggests otherwise. I'd seek legal counsel. Since it sounds like you intend to profit from these projects, it makes people want their share of the pie.

We all have learning moments, but in this case, tread carefully. One approach might be to simply offer to buy their rights up front now. Draft with a lawyer/solictor a release that grants a full release of rights to you and in consideration you will pay them a one time sum of X. Yes, it's a gamble that you will make that money back, but this contract will allow you to use them as you wish. Similarly a lawyer/solictor could advise you on how many attempts constitute a good faith effort to reach the unresponsive member. Documenting the contacts may show good faith and lend some support should it go to court.

Another route might be to simply re-shoot everything with new actors and with contracts this time. BUT if the original comedians contributed to the script, they have vested copyright interests. You may need to totally re-work the scripts. When you work with the lawyer, be sure to make clear what other contributions they made that need to be transferred. Both of these routes entail work and expense on your part.

It's a mess. And these kind of learning moments are hard. Sometimes the best course of action is to move on and not make the same mistakes. While writing off 6+ months of hard work, you're also walking away from legal headaches and expenses to tackle new projects. They are in the same boat; they can't compel you to mount those clips. Nor can they mount them without your permission. Only you can answer if 5 five minute comedy vignettes are worth it. Good luck.

 

[whatuk]

yeah, we were thinking about reshooting, the only problem is that as we got rid of the set, which took a good week to build, and i'm not sure i could face that again.
thanks for the advice thou. think i just have to write it off.

 

[sfoster]

if you put it online for free, whats the worst that can happen? they get it taken down ??

Doesn't seem any worse than not trying
maybe you could just not tell the actors. if that doesn't both your conscience

 

[whatuk]

yeah i mean it's just a trailer too, not the 5 full episodes. really i just wanted to see what people thought. the problem just comes in, that at the moment it's online and i can use it to direct people to it for work. but if i actively publicise it they probably will find out.

 

[joelhall]

I would strongly urge you to join a guild or union which offers legal advice as part of its membership. The law on these matters (as with many) is quite complex and involves several Acs of Parliament as well as court precedence.