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. “

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 8×10s, 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.

“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.

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.

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.

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………..

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.

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.

Seriously? I think I see a high road over there, I’m gonna take it, thankyouverymuch.

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.

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.”

Is “ironic” the correct word here? The fact that you talk about standing tall, naming names and photographers needing balls, yet you post anonymously?

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.

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.