A FEW WORDS ABOUT COMPOSER

JOHN TATGENHORST

(IT'S ONLY SLANDER IF YOU CAN PROVE THE FACTS AREN'T TRUE)

A lot of directors provide liner notes on the merits of the relationship forged with their composers. This is not one of those situations. The following complaint was filed with the American Federation of Musicians on behalf of Jerry Vasilatos and Nitestar Productions.

The American Federation of Musicians never responded.

I cannot urge or advise any independent film-maker enough the importance of consulting with an entertainment attorney before engaging or entering into any contracts with artists talent you employ to work on your projects.

Always, ALWAYS remember to include these three simple words on any agreement you forge with an employee whose work you commission:

WORK FOR HIRE.

Let my error be your education. Here endeth the lesson.

 

March 1, 1996

 

NITESTAR PRODUCTIONS
6430 North Artesian
Chicago, IL 60645

 

Mr. Tom Beranek, Vice President
CHICAGO FEDERATION OF MUSICIANS
175 West Washington
Chicago, IL 60602

Dear Mr. Beranek:

This correspondence serves to notify you of a grievance I wish to file against one of your members regarding extremely inexcusable and unprofessional behavior. The member in question is John Tatgenhorst, of whom I hired two years ago to score my independent film "Solstice - A Christmas Story". As you will find in the attached documents, my dealings with Mr. Tatgenhorst have been on his end, one series of unsubstantiated claims after another leading to a threat by him against myself and Lifetime Television demanding $3,838.36 or possible litigation for copyright infringement arising out of the broadcast of my film on their network. There has never been a question of my owing Mr. Tatgenhorst money under the terms of my contract with him regarding union scale compensation when the film was sold for commercial broadcast, but the amount he demanded with no documentation as to how his figures corresponded with our agreement in the eleventh hour not only jeopardized my film from being broadcast, but interfered with Lifetime's ability to provide a national listing for it in newspapers and T.V. guides. As I will account in the following, this is just the tip of the iceberg in a long pattern of faithless and unethical business practices that I feel obligated to report to your organization.

In February of 1994, John was contracted to provide a 16-minute score for my film "Solstice" at the amount of $5,000 (Document A.) The score was synthesized, and based on a temp track I provided him with. During our negotiations, I agreed to give him publishing rights to the music, so that if the film were shown in other mediums of public performance, he would receive extra moneys through ASCAP. I also agreed to pay him and his musicians a union scale compensation if the film were to be sold for any commercial usage (at this time, the film was a 16mm short intended for film festivals). As a first-time filmmaker, I was learning a lot about the business process associated with producing a film, and based upon Mr. Tatgenhorst's impressive credentials, I trusted him and believed that our agreement was a standard one. In doing so, I also trusted per the agreement he drafted, that publishing rights and music copyright went together, not discovering until much later, that they usually do not.

Upon completion of the score, Mr. Tatgenhorst was paid the $5,000 contracted, and out of my appreciation for his work, I paid an extra $1,000 bringing the total to $6,000 paid. The film was completed, and the sound was mixed at Zenith Audio Services. 16mm prints were struck, and the film was entered into several festivals.

"Solstice" was produced while receiving student credit through Columbia College at a cost of $120,000 with funds from a personal injury settlement I received as a result of the loss of my right leg. Having poured almost all of my money into this effort as an investment in my career as a director, I showed my film to a producer's representative, who agreed to take it to market in an effort to get it shown on television so that I could begin to try and recoup my investment. After taking it to several programmers, Lifetime Television in New York made an offer, and the 48-minute short was sold for an exclusive two year run to be broadcast during the 1994 and 1995 Christmas season.

Wishing to honor my contract with Mr. Tatgenhorst, I called to notify him that the film had indeed been sold and I wanted to find out what was owed him and his musicians (one synthesist and an engineer) under the terms of our agreement. He said union scale dictated $4,000 for the two year run. Although it seemed a little steep, I trusted Mr. Tatgenhorst that this figure was correct and asked that he submit an invoice so that I could issue payment.

What I received from Mr. Tatgenhorst was an invoice stating I owed him $4,000 for the first year's run, and $3,800 for the second year's run, equaling a total of $7,800 on top of the $6,000 already paid bringing the grand total to $13,800 for his 16 minute synthesized score (Document B.) Regardless to say, I was somewhat flabbergasted, and contacted him immediately stating that as I understood it, the amount of $4,000 we discussed was for the two year run, not for each year. He indicated that he would lower that amount (Document C.), but that he had to get the payment in place "very soon" to pay his synthesist, otherwise he would be fined $25 a day by the American Federation of Musicians. He then said he would invoice me for the $4,000 for one year, and overlook invoicing me for the second year (in essence, only "report" to the A. F. of M. that the film was to be aired only one year, to give me a break on "union scale" fee guidelines and scales). While I appreciated this, I nonetheless requested that he provide me with some documentation as to where the quotations were coming from for my record keeping. After initially insisting it was all very complicated how these quotations were figured, he eventually conceded to send me some pages from an A. F. of M. manual (Document D.) to enforce the rates he quoted.

Upon looking over the A. F. of M. documentation Mr. Tatgenhorst submitted to me, a major discrepancy was evident in the rates quoted. For Mr. Tatgenhorst to classify my film in the same category as a feature-length theatrical motion picture was entirely improper, as projects receiving theatrical distribution are earning their money back in ticket sales before they even begin to play in secondary markets. "Solstice" was, and always has been, an independent short film that was produced for student credit and festival exhibition. That it was licensed to Lifetime Television would at least bring in some funds to begin to parlay it's initial cost (although as you can see from my financial records, Documents E. and F., it will never break even). All of this information was available to Mr. Tatgenhorst, and for him to assess theatrical motion picture scale compensation rates to a 48-minute student short was the first of several inconsistencies that I felt, needed immediate investigation.

After consultation with other musicians in town both union and non-union, all of whom stated that on top of what had already been paid for what would usually be defined as a "work for hire", the "union scale" rates as quoted seemed extremely exorbitant, if not suspiciously questionable. I decided to contact the A. F. of M. myself (having finally been directed that this was the organization that could provide me with the information I needed.) I spoke with Mr. Ray Nosal, who was very happy to help out and check into the situation I described. After researching A. F. of M. records, Mr. Nosal informed me that no paperwork had been filed by Mr. Tatgenhorst as he had claimed regarding my film or the "union-scale" rates he quoted. After explaining to Mr. Nosal the classification and scale of my project, he said he would get back to me with proper rate quotations. Admittedly, I was a little stung to feel I had been misled by Mr. Tatgenhorst after trusting him to provide me with accurate information, compounded by the fact he was pressuring me to submit payment because of paperwork he claimed that he filed, but never did. I contacted him again. I told him I needed information regarding the recording session for my records, as well as his synthesist's and engineer's names (Document G.) At this point Mr. Tatgenhorst became very belligerent that I was requesting the information, telling me that if I "wanted to hang out my shingle as a music producer" I could, but until then he insisted he was under no obligation to provide me with the information I requested. He didn't have the time to "educate" me regarding the AF of M's rates and how they applied to my contract with him, but he again insisted that he needed the payment in place immediately because of paperwork he had filed.

I was contacted shortly thereafter by Mr. Nosal, who stated that the closest category that an independent student film could be classified in, was "industrial", and that union scale compensation for this class passing into commercial usage was $1,786.17, much lower than the $4,000 then being quoted by Mr. Tatgenhorst. Mr. Nosal faxed me these rates, which were substantiated by the New York A. F. of M. , along with an agreement for me to sign (Document H.)

Apparently while investigating the matter, Mr. Nosal had contacted Mr. Tatgenhorst for specific information because after receiving Mr. Nosal's instructions, I received a call from Mr. Tatgenhorst. Mr. Tatgenhorst was extremely upset that I had contacted the A. F. of M., stating I could get him in "a lot of trouble". When I replied that it seemed to be the only way I could get an explanation as to how union scale rates were being determined in accordance with our contract, he stated that I should just do what the A. F. of M. told me to, now agreeing that the amount owed was $1,786.17 (and submitting a third invoice, newly adjusted to that amount) - (Document I.)

As "Solstice" was still operating in a deficit, the first payments I received from Lifetime were put towards other unpaid principles that had not received any money owed them, most notably the laboratory that had conformed the film, my producer's representative, and Zenith. On top of that, I was also personally responsible for providing Lifetime with producer's errors and omissions insurance. As this had dragged into the summer of 1995, I sent a correspondence to Mr. Tatgenhorst outlining my concerns regarding what had transpired, and that he could not be paid until more revenue flowed in (Document J.) What I received back was a haughty response (Document K.), with a demand for $3,838.36, and a claim that the A. F. of M.'s quote was wrong (how the A. F. of M.'s quote could be wrong, after his prior instruction that I observe their mandate, is an issue that remains unexplained to this day). In this correspondence, Mr. Tatgenhorst did not address one point I questioned him on regarding his exaggerated quotations, falsehoods regarding filing paperwork with the union nor his frequent admonitions that if I did not submit payment immediately, he would be fined (despite the fact that the A. F. of M. had no paperwork from him regarding our agreement).

I did not reply to this correspondence, feeling that I was dealing with an impossibly unreasonable individual. In my opinion, Mr. Tatgenhorst's behavior has been extremely unethical and grossly unprofessional. From the outset, there had never been any question that moneys were owed in accordance with our agreement, but every effort made on my part to uncover what that "union scale" amount was in accordance with our contract was met with duplicitous and entirely misleading information. As a "professional" musician, I'm sure Mr. Tatgenhorst knew while drafting our original agreement (while I at the time, unfortunately did not), that such work as commissioned constituted a "work-for -hire", the copyright of which is then held by the producer of the film. Publishing and copyright do not go hand-in hand. While I may have been inexperienced at the time, my trust in Mr. Tatgenhorst was founded out of respect for his credentials, and I did not question him. As his behavior throughout the past year demonstrates however, he has flagrantly and with reckless abandon repeatedly breached that trust. I did not hear from Mr. Tatgenhorst by phone or mail again, until December 11, 1995.

In a letter sent by Mr. Tatgenhorst's attorney, Mr. Jeffrey H. Brown of D'Ancona and Pflaum, I was notified that Mr. Tatgenhorst was threatening copyright infringement litigation for use of his score in my film "Solstice", unless I was to submit to him $3,838.36 within a weeks time (Document L.) A duplicate of this letter was sent to Lifetime Television, which was set to broadcast the film on December 24th, two weeks later. I retained my attorney, Mr. Ted Burzynski, to represent me in this matter.

Upon receiving Mr. Tatgenhorst's threat, Lifetime called and informed me that unless the matter was resolved, they would not be able to air my film under fear of liability, and I would be held in breach of the "hold harmless" clause stated within my contract with them (Document M.) They were very concerned, because as long as this threat hung in the air, they would also be unable to list the program in T.V. guides and newspapers because of printing deadlines. I assured them that the matter had not been ignored as Mr. Tatgenhorst's attorney claimed, but that I was unable to pay Mr. Tatgenhorst due to the false information he had been providing me, which to date contradicted the information that the A. F. of M. provided. My attorney Mr. Burzynski contacted Mr. Brown, informing him of the same thing- that there was never any question that Mr. Tatgenhorst was owed money, but that the amount he claimed was in question. After being asked by Mr. Burzynski where Mr. Tatgenhorst's numbers came from to honor our "union scale" clause, Mr. Brown claimed he did not know, but that he would request the information from his client (how an attorney can threaten litigation for an amount of money that has never been substantiated properly in accordance with a business contract is another matter that I also intend to investigate.) Mr. Burzynski's request was submitted on Thursday, December 14th . In order to meet their T.V. listing deadline, Lifetime needed to know that the issue was resolved by 3:00 PM on Monday, December 18th . During the time that transpired, Mr. Burzynski double checked with the New York and Chicago A. F. of M. offices, both of whom confirmed that if any amount was owed, it was $1,786.17. Mr. Brown claimed that his client Mr. Tatgenhorst was awaiting a fax from an unnamed and unspecified source which would confirm and verify his demands, and that the amount could even be more... as high as $8,000 to honor our "union scale" clause and his possession of the publishing rights and music copyright... bringing his total to $14,000 for 16 minutes of synthesized music based upon a temp track, all the while Mr. Brown claiming that Mr. Tatgenhorst was just trying to protect his "creative" rights.

The Monday deadline came and passed, with no fax as promised from Mr. Tatgenhorst. With Lifetime needing to be guaranteed that the matter was going to be resolved with no liability on their part, Mr. Burzynski advised me that in the best interest of getting my program on the air and avoiding liability of my "hold harmless" clause with Lifetime, that I pay the $3,838.36 even though Tatgenhorst had provided no documentation as to where his claims regarding the amount stemmed from. Not having the funds, I had to borrow the money from my family. Mr. Burzynski suggested to Mr. Brown that until the exact amount was substantiated by Mr. Tatgenhorst's pending paperwork, that $3,838.36 would be placed in an escrow account with Mr. Burzynski acting as trustee. Mr. Tatgenhorst's attorney refused. On Tuesday, December 19th, with neither substantiation nor any time to bring the matter before a judge, I had a cashier's check made out by my bank to Mr. Tatgenhorst (Document N) Mr. Burzynski and I personally attempted to deliver the check to Mr. Brown, who would not accept it until checking in with his client Mr. Tatgenhorst, reminding us again that the amount in question might even be as high as $8,000.

While Mr. Burzynski had already guaranteed to Lifetime that the issue was being resolved, he called Mr. Brown on Wednesday morning, December 20th. He told Mr. Brown that if Mr. Tatgenhorst did not accept the $3,838.36 he had originally claimed he was owed, Lifetime would pull the plug on the airing of my film, I would be sued for breach of contract, we would sue John Tatgenhorst for malicious intent to interfere with my business contract, that the matter would be in litigation for years and John would get nothing.

Within an hour, Mr. Tatgenhorst became available and quickly authorized an expedient resolution to the matter and accepted the $3,838.36. Mr. Tatgenhorst did not turn over any "documentation" as he claimed was forthcoming, but at this time it was a moot point because as I had stated previously, there was absolutely no time allowed to resolve this matter properly before a judge. Suffice it to say, the "settlement" agreement was signed under extreme duress (Document O.), but under the circumstance at hand, (with the only alternative left that of Lifetime pulling the program and having to deal with a whole new set of liabilities) there was no other solution. Mr. Tatgenhorst's stalling had provided exactly the results he had intended- to squeeze the money that he had determined he was owed, substantiation and sources be damned.

Lifetime aired the program on December 24th, but not without damage done; as a result of Mr. Tatgenhorst's reckless bullying, the network had to pull the national T.V. guide listings as a precautionary measure. Mr. Tatgenhorst's actions maliciously and with calculated intent threatened my relationship with Lifetime, giving no one any time to interpret the vagaries of our "standard" music production contract. That Mr. Tatgenhorst has to this day, failed to produce the fax that he claimed would substantiate his claims taking precedence over the A. F. of M.'s original mandate, makes me highly suspect, without surprise really, that such documentation even exists.

Has anything I have presented to you demonstrated the actions of an ethical professional?

While I may be guilty of inexperience and trusting Mr. Tatgenhorst at the outset, this does not excuse the gross advantage he has taken in manipulating the law to get what believes he is owed, even at the expense of bullying a first-time filmmaker and leaving an extremely bitter aftertaste as to how other "professionals" conduct business.

As I questioned him in my correspondence with him of June 4th:

A.) After I initially contacted him to satisfy our agreement, why didn't his price quotes follow any A. F. of
M. scale guidelines?

B.) In my original negotiations with him determining the music production fees, $5,000 was agreed upon along with paying the musicians "union scale" if the film were sold for broadcast. On top of that, I allowed him publishing rights, not knowing that publishing rights and copyright do not go hand-in-hand. I submit now- is it ethical behavior to guide a first-time filmmaker in this direction?

C.) Does a self-proclaimed "seasoned" professional suggest that in producing a score like this for an independent film, that he is unfamiliar with the definition "work-for-hire", and that he would conveniently exclude the phrase from a "standard" music agreement?

D.) Is it normal, professional and ethical behavior to submit theatrical feature-film price-scale guidelines, in an effort to collect moneys owed in an agreement drafted for a 48-minute independent, upon it's sale into a secondary market?

E.) Is it unreasonable for the aforementioned filmmaker to request documentation regarding such figures as they correspond with an agreement? Is it further unreasonable to request information regarding a performer and engineer's name for my business records, only to be told it's none of my business?

F.) Is it professional and ethical behavior to attempt to pressure a producer into paying an unsubstantiated figure, under the ruse that paperwork has been filed with the union and that a fine will be enforced if the money is not submitted immediately?

G.) Is it professional and ethical behavior to claim that paperwork has been filed to enforce a rate quotation, when it hasn't?

H.) Is it professional and ethical behavior to instruct a filmmaker to "do what the union says", and then claim the union is wrong, and more money is owed?

I.) Is it professional and ethical behavior to threaten litigation for that amount, all the while claiming even more money may be owed, interfering with a filmmaker's relationship to a network and that network's ability to properly list a program that is being broadcast within a weeks time?

J.) Is it professional and ethical behavior to fail to produce paperwork to substantiate moneys owed in a business contract and refuse to allow the amount in question to lie in escrow until the matter can be resolved properly for interpretation before a judge?

In John Tatgenhorst's mind, the answer to all of the above is "yes". His response to my inquiry of June 4th, refused to directly address any of the questions I raised (Document K.)

I don't know what Mr. Tatgenhorst's relationship to your union is, be it personal or professional. But I do know that when I describe his actions this past December as a "hijacking", a malicious and calculated effort to bully money he thinks he is owed under a threat of litigation for figures he cannot even substantiate beyond your own union's guidelines, what would you call it?

While Mr. Tatgenhorst may be a very talented musician (and this has never been in question), his business acumen is reprehensible. The biggest mistake I made while producing and directing my first film was in believing that others would conduct business fairly and honestly. To date, I've experienced none of this in my dealings with Mr. Tatgenhorst. His attorney's claims that my "inattention and... failure to respond to letters and calls" (Document L) is brazenly untrue and dangerously slanderous. I think I demonstrated plenty of good faith in my dealings with Mr. Tatgenhorst (would providing a $1,000 bonus on top of the $5,000 originally contracted be the action of someone disingenuous? How about also granting publishing rights that he is also currently receiving ASCAP moneys for?) If I did not intend to honor my agreement with this man, I never would have called him in the first place to tell him that "Solstice" had been licensed for broadcast and that I needed to know what "union scale" figures were in order to honor our contract. That he claims this is even a "new usage" of his copyrighted score is questionable in my mind, considering it has not been altered or removed from the original work it was placed within; namely, the 48-minute short feature "Solstice". My research (Documents P. & Q.), indicates it's definition as "supplemental market". None of this matters anymore though, because again, Mr. Tatgenhorst's little stunt provided no time whatsoever for these issues regarding the interpretation of our contract to be resolved before a judge.

As I stated earlier, I went into this first film very inexperienced. Although I am very proud of my accomplishment at seeing it through and even seeing broadcast to a national audience, it has also been a great source of anguish and disappointment that I've had to encounter this proverbial "wolf in sheep's clothing", for there is absolutely no logical reason dictating the circumstances which I fallen prey to as related in this account. It sickens me even further that I cannot remove Mr. Tatgenhorst's contribution to my film and have it replaced- to do so would require sound re-mixing along with new film and video prints struck to remove his name from the credits, expenses that run into thousands of dollars more and that unfortunately, cannot be afforded.

But a "seasoned professional" like Mr. Tatgenhorst, the "best in the business" by his own claims, surely knew this when he drafted our original agreement. It afforded him the opportunity to milk as much as he could out of his 16-minute synthesized score at the expense of a first-time filmmaker's inexperience, by tailoring it so that the copyright remained in his possession while ignoring ethical guidelines that any other "seasoned professional" surely would have been aware of. That I will be obligated to pay him more money if my film is picked up again by Lifetime or sold for home video distribution on top of the $10,000 he has already received makes me ill- not because I have to honor a business agreement, but because the way by which it has thus far been enforced, outside of Mr. Nosal's research, has had no other documented or legal foundation.

Have I in any way been deserving of this situation? If so, please let me know, because I'd like to learn from it beyond what I've already encountered to further guard against it in the future. I do have another film in development as a result of the doors "Solstice" has opened, this one feature-length with a quite sizable and professionally scaled budget. You can rest assured that Mr. Tatgenhorst has succeeded in destroying any possible working relationship in the future, one that I looked forward to before discovering this side of him and being subjected to the indignities of his highly unprofessional behavior. While I now have the education to guard against future occurrences like this one (through making sure that an attorney reviews any future music scoring contracts with a fine-tooth comb), I am still left in the aftermath of this debacle wondering what went wrong. The only thing I can determine as making any possible sense, is that from the beginning, it was just too tempting an opportunity for Mr. Tatgenhorst to draft the agreement he did knowing someone with my inexperience would not understand its implications until it was too late. There is absolutely no ethical justification for it.

Along with the enclosed documents, please note the copy of my cashier's check to Mr. Tatgenhorst so that your organization may invoice him for it's share of the amount to be put forth towards member benefits. I would also appreciate it, since I have no "right" to the information by Mr. Tatgenhorst's claims, that you would look in to and make sure that moneys owed his synthesist and engineer were paid (if he were to be made accountable by your organization, I would sleep better at night knowing the money went where it was supposed to, since his original claims that "paperwork had been filed" were falsehoods.)

I have not taken the filing of such a grievance lightly, and while I apologize for it's length, I hope you understand my need to document all events thoroughly, so that there can be no question of disingenuous motive.

Thank you for your attention in this matter.

Sincerely,

 

Jerry A. Vasilatos

cc: A.F.M. New York
A.F.M. Los Angeles
Ted Burzynski
Jeffrey Smith

 

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