Dear Spike Lee
juanluisgarcia.com
juanluisgarcia.com
I have heard/experienced a dozen similar stories recently. I have a friend who left a huge agency to freelance–only to have another small agency work him to the bone and take advantage of him almost exactly like the story here.
YES I ABSOLUTELY GET THAT THE ONUS IS ON THE FREELANCER/SUB TO GET THEIR CONTRACTS IN PLACE ...
But, seriously, these people are ridiculous. A bunch of salespeople in suits tossing around buzzwords so they can land a job taking advantage of a big company's big budget. Everything is a pitch or a comp or a big lead.
My advice to all freelance hackers and designers: if you meet someone who says they work at an agency, (a) tell them you're a janitor and (b) run away.
c) Tell them you don't do spec work, because you're not a moron - fuck you pay me.
Agency finds naive freelancer, offers a job for exposure & other bullshit, overwhelms with fixes/updates, pretends being dissatisfied/offended, refuses to pay. This kind of story is as old as freelancing itself, only the names of parties involved change.
PSA for inexperienced freelancers: Nobody will unclog your crapper for a promise of future gigs, designers and programmers shouldn't put up with such scams either. Too many of us gained this wisdom the hard way.
They're parasites and bottom dwellers empowered by the fact that online marketing lowered the entry bar into marketing.
During my 5-year experience with them, I quit in one where I worked full-time, worked with several dozen of these 'agencies', my ex works for one, and I am due payment tommorow by one. I'm drawing a line here (not nudged by this letter, I've come to that decision few weeks back) - I'll never work with them again.
Their job is to suck your soul out, give you peanut shells, and kiss asses to their clients. They're never satisfied with the results, they won't pay the market rate, they abuse their employees. At first agency, I worked 120h a week, for several months, on several ocassions. Ended up in ER twice, lost an organ (gallbladder) and seriously damaged another (chronic gastritis) in short period of time, had micronap hallucinations regulary. Yes, I should've known better. Youthful energy got the best of me. It got best out of all their other employees, almost all who have left "violently". I was 27 at that point.
On a more lighter note - old school marketeers with vision, concept and drive now get even more respect from me. I didn't appreciate them enough when I started, thinking that they're not doing enough "numbers". Tough times for them and it's a shame. They'll be back on horse soon enough, I hope. There ought to be data-sucking ad-providing backlash at one point, right? Tell me it is so.
Correct. And your job as a freelancer is to do the same thing. I feel slightly sorry for this guy, but his failure to get any kind of deal memo or contract in place shows him to be an amateur.
EDIT: I extended my original comment as it was so brief as to be potentially confusing.
As for ripping off his design for the poster - nope. I recognized the visual concept immediately as a fan of Chan Wook Park's original Oldboy of which this is a remake. Here's a publicity still from the film: http://byt.wpengine.netdna-cdn.com/wp-content/uploads/2013/0...
So the notion of a man emerging from a packing case in an empty field is part of the scripted action of the film, not Mr Garcia's idea. The image of a woman in the background is also related to a story element (which I'd prefer not to explain lest it spoil the plot) and I'm willing to bet she appears with similar costuming in the film. The fonts, layout and content of the textual elements are wholly different And far more inspired by the publicity materials of the Korean original.
The marketing company should not be employing Mr Garcia's material on their social networking pages. However, it's unsurprising that whoever is in charge of the social media marketing would assume that any and all art assets were the products of a work-for-hire agreement as that is normal practice within the industry. however, this also has to viewed in the light of:
Early in the conversation the agency told me that I could publish the work as my own for the “exposure” so since I knew I was not going to getting paid I put the posters in my portfolio.
This is a grey area. An industry portfolio is generally understood to be for exhibition to other clients. Standard practice for cinematographers, production designers and other keys etc. is to either a) negotiate a release for copyrighted materials to be part of a public demo reel or b) to limit access to the demo reel to potential clients, eg by using password-protected videos on vimeo or sending publicity stills privately through email, samples of recorded dialog (if you're a sound person, as I am). And so on. Again, this is the sort thing that is usually established in a deal memo, and such a normal situation that it's typically boilerplate.
Without such an agreement, any claim by Mr Garcia that the pictures in his portfolio were official key art in any capacity (even unused) verges on being an implicit appropriation of trademarks, publicity rights, and/copyrighted material (to they extent that they employed any elements from production stills etc.), as distinct from mere 'fan art.'
Now, it's bad that Mr Garcia got no contract in place but I really think there is a bit more to this story, because the first thing any producer learns on anything but the most amateur-hour production is to get legal releases for any and all performances or copyrighted material on a work-for-hire basis. contractual relations are the lifeblood of the film business and even small indie productions with budgets of only a few thousand dollars use boiler plate agreements.
I'm not a lawyer, but I have worked in this field for a decade and I've been party or witness to disputes about ownership of work from both sides of the table. I don't find Mr Garcia's version of events entirely persuasive.
I'm sorry for you feel that way. You can opt-in in making a meaningful and fruitful business relations instead? Shame it's an opt-in, and not opt-out, though. I guess Bible's right on that one.
On a couple of occasions I've rejected a job only to be called up several weeks later when the lower-cost provider the producer contracted with didn't perform, and in cases like that I ask for and get my full fee. It's a tough world.
I am not (well, trying not too when I'm zen enough, unlike now with all this ranting) taking up working with anyone who doesn't see our collaboration as pure win-win situation, and will provide me with more than I ask for, and I provide him with more than he bargained for.
Stress-B-Gone, and life become a real page-turner!
There is no contract between the designer and the design company. And from what he says, he didn't get paid to develop on an hourly rate which means that it's not work-for-hire. And he hasn't been paid, which means that there wasn't an implicit contract or a verbal one that culminated in payment.
That means that the design company won't have any proof that it originated the art (and thus would have copyright of it), nor will it have any proof that it purchased or licensed the art (and thus would have some rights to use it). The designer could likely produce many design iterations that might be quite convincing to a jury that he was in fact the person who generated the designs.
Of course there's no way to be sure that the FBI would take the designer seriously. He's just a "normal guy" and his adversary is large and probably well funded. But that doesn't mean that the "normal guy" is wrong.
"A bunch of salespeople in suits tossing around buzzwords so they can land a job taking advantage of a big company's big budget. Everything is a pitch or a comp or a big lead."
That is indeed exactly the difference between most "agencies" and most small design firms/freelancers.
The agency has salespeople who know how to value and sell the work a freelancer can do, for an order of magnitude or so more money that that freelance will negotiate for themselves. You might think "I could give that company what they want in a few days with WordPress, a great theme I'm already very familiar with, and a solid day's worth of graphic design and css futzing - I'd do it for a friend for a few grand, but they're a big company so I'll see if I can get away with charging them $8 or $10 grand…". And you'd quite likely lose the job to the agency who comes in talking about Business Goals and Website Goals, Audience Demographics, Conversions, SMART metrics, Information Architecture, User Interface and User Experience design, Content Inventories, Conversion focused and SEO focused copywriting, Social Media integration, broader alignment with current marketing activity, leveraging existing business relationships and co-branding key messages - they'll spend two weeks (billing by the hour) talking to key stakeholders and decision makers at the client (while dressed, as you point out, in smart suits), then submit a proposal for a $280,000 project and, in case the budget doesn't stretch that far, a simpler $150,000 version. And they'll also have the known-effective "sales closer" tactics, probably something like "we've got a few slots open in out pipeline next quarter, I'm pretty sure if we could get this approved and signed before the end of the month I could talk finance into a 12% discount on a full upfront payment…"
The _good_ agencies will actually deliver a lot more business value that a freelancer with a good design eye, a folderful of WordPress themes, and a GoDaddy hosting reseller account.
A _bad_ agency will just have search/replaced the company name in their previous pitch powerpoint decks and web project proposal docs - and deliver a not-very-varefully-planned canned-theme WordPress site anyway, probably farmed out for $8k to some freelancer with the promise of heaps of future work and some great exposure…
Knowing which clients are going to get $100k+ value out of a project, then pitching a proposal based on value delivered, rather than hours worked. _That's_ what a successful agency does. (And what most freelancers have very little idea how to do.)
Agency's army of spineless sales people [1] spends a lot of time ass licking many people, one of them happens to love his anus tickled in that manner, then he dumps a bag of money to them, they spend 90% of that money pumping ads, and 10% on development of what's supposed to masquerade as a 'marketing campaign'. Anus-tickle-lover still gets a nice spreadsheet at the end of the month ('Yay, profits!') and they all live happily ever after.
Well, not all. In-house developers crook their spine to the will of their masters and get an occassional team-building event paid for, and outsourced developers get eaten alive in the witch's cabin.
[1] It helps if you're a handsome woman. A fact, sir. No citation needed. Desired even.
(Surely you have seen the occasional great non-literal-ass-licking salespeople working for genuinely great marketing agencies? And agencies that deliver _spectacular_ word and achive magnificent results for clients? I'm quite proud to have been told I came in second with pitches against a few agencies I'm particularly impressed by in my small space here… But I will beat them one day, Oh yes…)
But no, I don't have office, don't usually drink (can't, destroyed a bunch of parts of digestive system).
occasional great non-literal-ass-licking salespeople No. To be perfectly honest, no. Not once. They're pretty disgusting to me.
genuinely great marketing agencies Sure. Rarely, but yes. They don't do FB Ads and AdWords tho.
I'm quite proud to have been told I came in second with pitches against a few agencies I'm particularly impressed by in my small space here… But I will beat them one day, Oh yes…) I'm happy for you being happy and enthusiastic. I was once too. But, I'll take the liberty to advise you - leave the space. Immediately. It's a sulphuric pit. You don't age well there.
Well, all that doesn't hold water unless you're on of them. Are you?
Additionally, he has no apparent way to contact him.
EDIT: I really don't want to point fingers with 0 proof, but Spike Lee happens to be CEO of an ad agency named Spike DDB. https://twitter.com/SpikeDDB
(Knowledge source: Got totally screwed by a business partner via legalese and had all my work stolen, ended up doing half a year of work uncompensated, can't legally talk about it or the partner, and loss < cost of litigation. Ah well, water under bridge.)
That aside, he works as a freelancer in an industry where naming and shaming specific agencies could very well hinder his ability to get future work, so I don't blame him for not doing it.
We never signed any contracts or work-for-hire agreements
...leads to these:
The agency told me that I could publish the work as my own for the "exposure"
I never even got paid the peanuts they owed me
The agency responded by threatening me with legal action and worse
Whenever a client states or implies that "the exposure" will be payment enough, alarm bells should be ringing.
A contract, negotiated up-front, might have prevented the agency from taking advantage of him.
Even if he blew most of the money he was making on lawyers, what then?
Now he puts everything he's ever owned into suing the company?
I did work through an agency for a San Francisco interior designer. The agency's Founder paid me with multiple bad checks. Meanwhile, two years later, my work continues to be used and I remain unpaid for a month of full time work.
I ended up launching a site exposing the guy behind the agency who has a history of writing bad checks. I've received many emails from others he scammed or tried to scam so I find some peace in the fact that when people google his name, a site exposing the guy come up.
1) Get a contract signed up front. If possible, make sure you're allowed to discuss your experience with the firm publicly along the way, so you're allowed to talk about it (good or bad).
2) watch "fuck you, pay me" (http://vimeo.com/22053820)
3) Spike Lee hires a firm that brings him top talent and work, but that firm treats that talent like shit. We (all the netizens!) are giving Spike Lee the benefit of the doubt, as he appears to be unaware of this practice.
4) These agencies need to be called out more often for unfair business practices, no matter how reputable they are. They don't have to like their talent as people, but they must respect their talent and the skills of the community they serve.
As long as you're not publicly mentioning this firm's name, I hope you are privately notifying ALL the designers you know to never work with this agency and mention the firm by name.
Sorry you got shafted like this, but you're clearly making the most of it. Your artwork is great, by the way, keep it up - I suspect this bad egg won't poison your future livelihood ;)
Edit: formatting
Sounds like a move up.
http://www.hollywoodreporter.com/heat-vision/designer-claims...
There are perhaps caveats that I've not considered, but this idea comes to me again and again when I hear this kind of story (again).
Edit: Guess I also have to throw in here that I am continually amazed at the number of people who are afraid to do the dirty work of being in business (drawing up contacts, negotiating, calculating margin, saying NO, etc).
1. The contract will be honoured and
2. The cost of litigation is lower than the unpaid $.
This situation certainly looks like a blatant ripoff to me. I hope Juan Luis Garcia gets a great attorney and hefty amount of money.
That said, this was probably not the kind of controversy Spike Lee needs attached to this project.
side note: Roger Ebert's raving review of Oldboy was what got me to watch the original Oldboy and that spurred a whole new appreciation of independent foreign films for me:
http://www.rogerebert.com/reviews/oldboy-2005
Would've loved to see what he thought about this one, though Ebert's successor only gave the remake 3 stars
http://www.rogerebert.com/reviews/oldboy-2013 http://www.rogerebert.com/reviews/oldboy-2013
I don't really see any parallels between Battle Royale and Oldboy. You might check out The Chaser and Yellow Sea, though.
A similar controversy arose when M. Night Shyamalan sat on the rights for "Life of Pi" for a few years, but was ultimately replaced by Ang Lee. The only one who could master such a job.
With the Oldboy remake it was clear from the beginning that it would lead to a desaster, but apparently the studio owed Spike Lee a big favor.
As the open letter makes very clear - it was bad behaviour on the part of the agency, and Spike most likely didn't know it was going on (and the letter even suggests the agency was actively lying to him about it).
But - Spike is ultimately the one in control of the money-tap the agency is drinking from. While he had "absolutely nothing to do with this", it was no doubt done on his behalf, and he absolutely has the power to fix it. If he says "No, that's not how we do things", then it'll get fixed. (Arguably there are many other people below Spike who could also make that call, but I have some sympathy for the original poster - it would be a great deal of work if it's possible at all, to find out who in the middle management chain of command has sufficient authority to solve this problem and how to contact them directly.)
I think it's 100% plausible that the agency accepted Lee's decision on which poster design to use as "last word", while not fully disclosing (and perhaps even actively deceiving him about) the payment/negotiations/contracts/copyrights with the designer.
I've experienced enough of this with much less prolific projects that I happily keep pretty much everything small time now. Chasing billboards and marquees is almost always a game for lucky people and the already-rich.
Because the exposure was more important than the money. Would have of course been nice if they stated this upfront but they didn't. That's water under the dam at this point.
I have regularly done work for people at no charge.
This has not only led to a great amount of paid work but I've thrown around the names that I've done work for quite liberally and use it the same way the company that sold a treadmill to the White House used to scream in their ads "only one chosen to be used by the President in the White House!!" (when in fact it is a competitive bid almost certainly). So I use those names to book more work. I've even used the names with success when cold emailing here and there. Right on the subject line.
While it is not great that he was lied to, he did agree to put in the work with no guarantee of getting anything.
Consequently the way I look at it even if he feels he was screwed he should have sucked it up and let Spike use it, even for free, and then bragged and gotten out of that what he could until the cows came home.
Instead he reacted emotionally and ends up with nothing. Understanding of course that this is upsetting.
Separately, in looking at his site he does really nice work. So perhaps he shouldn't have done the work on spec in the first place but then again he did say that "the idea of working for you and having my design represent your film blinded me."
In other words if anyone of us had approached him to do work on spec he most likely would have declined very quickly or not treated the transaction the same way.
You have to be smart and not be lead on by advertisers.
http://vitamintalent.com/common/img/vitabites/vitamin-t-agen...
They will screw you every chance they get.
Did you get to the part where they clearly posted his comps on facebook?
Also you are undermining your own argument here if you support the OP's original "agreement" but not copyright to music / movies, when he explicitly states in the post:
"We never signed any contracts or work-for-hire agreements and I certainly never agreed to donating or selling any copyright of my work without a licensing fee."
So he should expect to be paid for his work or it be protected, but musicians shouldn't?
So it's illegal to violate an agreement you didn't enter in? That makes no sense, sugar.
Let's test that: to read this post, you must agree to pay me 5BTC. Have you now committed an illegality? I guess not.
Also you are undermining your own argument here if you support the OP's original "agreement" but not copyright to music / movies, when he explicitly states in the post
He states that they had to written, explicit contact. Care to read my post again?
So he should expect to be paid for his work or it be protected, but musicians shouldn't?
Sure they should, by whoever has an (explicit or implicit) agreement to pay them. Thankfully I haven't, but I still like to reward them when I can for all the joy they brought me.
Yes. Downloading an album or movie without paying for it is illegal. This isn't in dispute.
> He states that they had to written, explicit contact. Care to read my post again?
I read it, your prior post was very short. See my quote above directly from his blog post; there wasn't any contract.
I think it is in substantial dispute. Can you cite a case of someone in the US being successfully prosecuted for downloading? Note that this precludes bittorrent, gnutella, etc situations where downloading means simultaneously uploading.
Outside of the US there are plenty of countries where it has been made explicit in the law that downloading is OK. Some even going so far as to include the uploading portion of torrenting, etc as legal too.
Canada: http://archive.is/W0mdI
Netherlands: http://torrentfreak.com/dutch-parliament-downloading-movies-...
Spain: http://techcrunch.com/2013/09/21/spanish-pirate-site-owners-...
http://en.wikipedia.org/wiki/Operation_Fastlink
http://en.wikipedia.org/wiki/Operation_Site_Down
http://en.wikipedia.org/wiki/Operation_Buccaneer
Note: Just because I don't have any cases offhand of my friends fined for jaywalking, doesn't mean it isn't against the law.
> Outside of the US there are plenty of countries where it has been made explicit in the law that downloading is OK. Some even going so far as to include the uploading portion of torrenting, etc as legal too.
I don't know much about the Dutch law, but it is supplemented by a 'piracy tax', ie, storage devices are more expensive to purchase among other things.
That's putting your arguments into the realm of faith. If those three citations are any indication, your faith is misplaced. All of those were for people doing distribution (e.g. uploading). None of them were for downloading.
I don't think it is much to ask for you to have just one definite case to back up your claim that the legality of downloading is not in dispute. Just one.
Here's one for jaywalking: http://www.huffingtonpost.com/radley-balko/raquel-nelson-jai...
As a point of order, the surest way to admit you are wrong is to tell the other person to "google it." It isn't anyone else's job to prove you are right.
Actually, not where I live. But the point is that the situations are different, because I don't have an agreement with any artist. Whether that makes it illegal to use copyright works was not the issue in discussion. What was being discussed was the supposed hypocrisy of anti-copyright people.
there wasn't any contract.
There's was an implied agreement. Whether he has a legal foot to stand on is irrelevant to this discussion, because we weren't talking about the legality of the situation, but what it should be.
There is also an implied agreement that when an artist asks you to pay $12 for a CD, that you pay for it. This isn't very hard to understand.
Some things are just part of societal existence. You can't opt out of them any more than you can opt out of paying your taxes on profits you make.
That's a particularly poor example.
Supreme Court Justices Rule Police Do Not Have a Constitutional Duty to Protect
http://www.nytimes.com/2005/06/28/politics/28scotus.html
In case you can't get past the paywall (try googling the title and going from there), the summary is that a woman got a protective court order and then she called police and told them her husband had violated the court order. They did not act, and he killed her three kids.
If a court order with explicit instructions to arrest should it be violated isn't enough to move the police into action, simply encountering you isn't worth a hill of beans.
So yes, you didn't. But if you don't agree, you shouldn't watch it. It's a simple deal, regardless of whether or not technology means you could.
Otherwise you can turn it around and ask "when did the artist agree to you watching it without paying" which is pretty similar to the case described here, just replace watching with using.
Why?
when did the artist agree to you watching it without paying
If I own a car made by Toyota, should I need their agreement to offer rides to people?
It's against the law.
> If I own a car made by Toyota, should I need their agreement to offer rides to people?
This argument makes no sense. You can play the music you bought for other people for free, just like giving a free car ride. You did in fact pay for the Toyota, just like you would to purchase an album.
The courts in my jurisdiction disagree, but in any case, I wasn't making a legal argument, but an ethical one. Unless of course you consider that any illegal activity is necessarily unethical, in which case we have nothing to discuss.
You can play the music you bought for other people for free
Not freely, I can't, only under the very restrictive limits of fair use. But I grant you the analogy isn't good. In any case, the point stands: why should I get to decide who can do what with the works (in my case, software) I produce, after I sell them?
A free society implies that should be the default, with well justified exceptions. I don't see decent justifications for copyright.
Why does that make any more sense for instantly-reproducible, yet still not instantly-creatable, goods than for physical ones?
The fact that the latter are scarce and rivalrous. Private property is a mechanism to prevent/reduce conflicts. But I'm not opposed to suggestions for alternative mechanisms either.
I don't know that I agree. I'm more inclined to view private property as a mechanism to encourage productive use of land and other scarce resources. And I see creativity/time/inspiration as a scarce resource.
That first sentence sounds outraged and pointed, but it's not; it's a serious question. Every time this issue comes up, I feel like I read people making similar points, as if they were remotely convincing. I really want to know who, among all the people who are not already on your side on this issue, you think would be persuaded by the logic that "I didn't have a contract with the producer of _Wall-E_, and so I'm not obligated to pay them before downloading and watching their movie." It seems to me that a child can see where the obligation to pay comes from.
The law defines property. Just because IP has different traits then physical property does not make it more real; they are both useful fictions that form the foundation of a functional society. The laws encode our social norms and ideas about property. There is an entirely different set of laws which encodes acceptable behaviors in business practices, such as contract law, which is somewhat of a different area.
There is some very good arguments to be made that the current definitions of intellectual property are severely flawed, and haven't been updated to reflect our social perception or technical needs about what should or shouldn't be property. But there is no reason why "no IP enforcement" is inherently the right solution.
See Against Intellectual Property, by Stephan Kinsella: http://mises.org/journals/jls/15_2/15_2_1.pdf
All property rights, as implemented by our laws, are just as much of a fiction. You just feel that one is more necessary or better then another.
I'm not sure why you feel I would disagree with that, or why would that contradict my position. I'm not a believer in natural laws.
[0] http://christianengstrom.wordpress.com/the-pirate-party-on-c... [1] http://the1709blog.blogspot.se/2012/05/pirate-party-plans-fo... [2] http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/400/60/PDF/G0...
And taking credit for someone's work is not remotely the same as copying it without their permission, attribution intact. Can you not tell the difference?
Yes you can. The value is in the time and creative process that went into creating the creative work.
A contract that says I will pay you $1000 to create a piece of open source software, is still a valid and enforceable contract, even though I won't own the software in the end.
If there were not copyright at all, then the agency wouldn't have had the promise of future revenue to lure the designer into the deal in the first place.
If everyone knew up front that once the work was done it would be free to the world, there would have been no misunderstanding, and the designer would have had an easier time insisting on getting paid properly up front.
If you publish something in public for all the world to see, don't expect random strangers to just hand you money for the privilege of seeing it.
But if someone tells you they will pay you for your work, and then when you spend two months working on it, they refuse to pay and furthermore pass the work off as their own, that's fucked up no matter what the copyright laws are in your country.
Are you trolling?
Even the extreme open source advocates would agree that, if you commission a guy to do some work for you for an agreed price, you should pay him.
Besides, what the movie makes doesn't matter. He'd be suing the ad agency that ripped off his design, not the producers of the movie.
Welcome to the world of people who give you praise and acolades but give you nothing in return. They are consumate smoke blowing up your ass thieves.
Contract in hand and no matter what you should own all intelectual property rights. The reason they chose you was because they thought you would roll over for a belly rub and instead all you got for your efforts was a kick in the head.
Ever go see a movie and see all these companies that flash accross the screen before the movie starts? You have no idea what they do? well those are the companies subcontracted out to market, advertise, invest and promote the movie and those adds are important because if you are somehow in the privy of someone who promises 20% of your investment return if you fund a movie they will mention those companies and your will say "OH! so thats who you are!" RUN QUICK!
in the privy of someone who promises 20% of your investment return if you fund a movie they will mention those companies and your will say "OH! so thats who you are!" RUN QUICK!
Why would anyone wants a 20% return? I want 100%+ return on an investment.
Are you trying to say that 80% is to have my company name on that stupid screen?