My 'open letter' to the Hollywood producer, Adam Cushman of Film 14 LLC who has scammed me, and is refusing to return my audiobook production money. Authors beware! Read on...
To Adam Cushman (Producer and Owner of Film14 LLC, LA, California)
cc. Dustin J. Sloan (Attorney at Law, RASKIN GORHAM ANDERSON LAW, 11333 Iowa Ave., LA, CA 90025)
Date: 10th July 2023
Open letter re. Your breach of contract in my Audiobook contract for The Babel Apocalypse, and your lawyer’s intimidatory, abusive and unethical approach
Dear Mr. Cushman, It has come to my attention that your lawyer has been engaged in a type of abusive approach to litigation, sometimes known as Strategic Lawsuits against Public Participation (SLAPPs). Over the weekend, your lawyer has been contacting third parties that you or he believe I may have been in touch with, threatening legal action against them, if they publish materials relating to my legal claim against you.
This is a threat to freedom of the press and the rule of law, a principle under which all persons, institutions and entities are equally subject to the law. This approach aims to prevent publication of matters of public importance and interest, particularly as it relates to the publishing and entertainment industry. Victims may include journalists, Youtubers, activists, public commentators and others.
In addition, these intimidatory actions by your lawyer, against third parties otherwise unconnected to my claim against you, may be in breach of the California Bar Rules of Professional Conduct, as they have no substantial purpose other than to embarrass, delay, or burden a third person. This behaviour by your lawyer, on your instructions and acting on your behalf, may prompt disciplinary charges against your lawyer for engaging in conduct that is prejudicial to the administration of justice.
This abusive behaviour follows an intimidatory letter I received from your lawyer on 7th July 2023. In that letter I was threatened with a defamation lawsuit unless I sign an NDA and retract public statements about your breach of contract.
Consumer law affords me the right to speak out, in the public interest, about my experiences, good or bad, when interacting with service providers and product providers. Freedom of speech laws grant me further rights in terms of expressing genuinely held and sincere views and opinions, grounded in observation and experience.
In light of this abusive conduct, I feel compelled to make this letter addressed to you an ‘open letter’, which will be hosted on my website: www.vyvevans.net under my ‘Language Creates…’ blog, exploring the issues, as I see them, so that others can assess for themselves, without being “shut down” with threats from your lawyer.
Contracted services for an Audiobook I contracted you to produce an Audiobook of my novel The Babel Apocalypse (www.songs-of-the-sage.com) for publication in September 2023. You provided the actor James Duval, to narrate the Audiobook. I paid $5,250 in advance, with the same amount to be paid upon completion, making $10,500 in total. This was a large amount for an Audiobook production but I understood and believed I was paying for a premium product, with a notable actor, who would receive a fee of $5,000 for his services.
In return you guaranteed, as per contract, that the Audiobook would be recorded in an “industry-standard sound studio” and that the production of the Audiobook “adheres to all technical requirements and specifications stipulated by ACX (the parent company of Audible), to ensure that the Audiobook be accepted for sale on that and similar audiobook retail platforms.” The contract also stipulated that the Audiobook would represent a faithful rendition of the print book.
You had between thirty and sixty days from date of signing, June 8th 2023, to produce the Audiobook, so as to achieve these contractual obligations. And following that, the Audiobook was to be published in September, in time for the busiest sales period for books, over the winter holiday season.
What went wrong? Pretty much everything. After one week, you sent through two brief audio samples, the opening couple of paragraphs from the Prologue and Chapter 1, as well as the opening credits. These “samples” were provided so that I could approve the sound quality, pronunciation and acting style.
It was obvious to the naked ear that the audio quality was not to industry-standard. For instance, there were intrusive and unpleasant ‘pop’ sounds on the plosives produced by the actor, on sounds such as ‘p’ and ‘b’. This implied that a pop filter had not been used, nor an omnidirectional microphone, which are standard features in an industry-standard sound studio.
There were mispronunciations and omissions of narrated text, which suggested the actor’s work was not being checked, or he was working alone (without an industry-standard production team on site to assist him). This was the case despite my having sent you a detailed 16 page pronunciation guide.
Finally, the excerpt from Chapter 1 lacked energy and charisma, and the Opening Credits did not follow the contracted script in the Contract.
You claimed the ‘pop’ sounds would be removed in editing and the omissions would be re-recorded. You sent me, the next day, a second sample from the opening paragraphs of Chapter 1, which provided evidence of better energy from the actor.
And in response, I sent you an extensive listing of all the omissions found in just these few paragraphs from the two samples. I impressed upon you that the complete and edited versions of these two chapters (Prologue and Chapter 1) needed to be checked by someone in your team, not least so that I received faithful renditions for final approval.
Two weeks later, you finally sent me the complete and edited versions of: Opening credits, Prologue and Chapter 1. These were now the complete chapters, which you claimed were the “Master” files and had been edited in light of previous feedback on the brief ‘samples’.
To my dismay, many of the same problems persisted, including parts of sentences missing entirely, which had been pointed out in the original ‘samples’. Moreover, the full Chapter 1 appeared to be similar to the sample of Chapter 1, Take 1, from two weeks prior—that lacked energy. It was clear that the audio of the three new ‘Master’ files was not to industry-standard, and the voice actor’s narration was not being checked for accuracy.
This had, by that point, become a Sisyphus endeavour for me. I had provided extensive feedback (on sound quality issues and omitted text, detailing examples of problems), provided scripts and pronunciation guides, which you assured me would be included in the complete, edited ‘Master’ files, and yet these were largely not addressed. This meant continual effort on my part, despite this being advertised as a premium product, without actual reward.
What happened next? When I confronted you with these issues over email during the course of July 3rd, and asked whether the audio was being recorded by the actor unsupported and alone, perhaps in his home, you responded by asserting, in an email to me of July 5th 2023:
“There’s been no breach or "grift." Our recording environment is up to ACX standards and is not being conducted in the actor’s bedroom.”
It was obvious to the naked ear that the audio quality of the complete, edited ‘Master’ files was below industry-standard. And it was hardly reassuring to have merely the actor’s bedroom eliminated as the sound recording venue.
I was further disconcerted that after my complaints about quality, you immediately removed the audio files from the shared online location, on July 3rd without explanation.
However, I had already downloaded them, and commissioned an ACX audio lab analysis. As this demonstrates, none of the “Master” files you provided met ACX technical specifications. See below:
This meant that your claim that: “Our recording environment is up to ACX standards” was a clear falsehood (as now conceded by your lawyer in his letter of July 7th discussed below, who finally admits a low quality “audio mic” was being used).
You subsequently attempted to justify the problems I had pointed to, by asserting after the fact, that the “Master” files were in fact “raw” and not fully edited and were simply for me to get a sense of the voice acting and performance style. This is a clear attempt to re-write history, and cover the lack of care and professionalism, and the contractual failure in evidence.
Your lawyer, in his letter of July 7th, followed this up with further falsehoods, claiming I had been supplied with four voice styles of Chapter 1 to choose from. This is a clear untruth and easily disproven by the email record. I received just two very brief samples of Chapter 1: Take 1, and Take 2. I selected Take 2.
Yet the full “Master” version of Chapter 1, which was sent to me via online folder, two weeks later as the “Master” audio, had been through editing.
But this “Master” audio, which you claimed had been edited so as to resolve the audio problems, and omissions was noticeably of less good quality than the original ‘Take 2’ of Chapter 1, that I had selected. And all the same ‘pop’ sounds on plosives were still present.
Was an industry-standard mic and sound studio used? Despite your previous claim that “Our recording environment is up to ACX standards”, your lawyer concedes in his letter of July 7th that this was untrue.
While he claims, for the first time, that:
“The narration was recorded in an industry-standard sound studio (owned by the sound engineer)”
your lawyer acknowledges, also for the first time, that the “Master” audio files you sent to me were not recorded on an industry-standard microphone. And now concedes that:
“the sound engineer may also use a broadcast microphone…” while admitting that such audio “is not the quality” that you promised me as per the contract.
Recall, you assured me in writing that the ‘Master’ audio files you sent me (two weeks after the initial samples had been approved—namely the complete versions of ‘Opening Credits’, ‘Prologue’, ‘Chapter 1’—were recorded in an ACX standard environment. But this is now disproven, both by the ACX audio lab analysis, and your lawyer’s admissions in his letter of July 7th. You lawyer is admitting that I was receiving audio files not recorded on an industry-standard microphone, in breach of what was agreed, and contradicting what you informed me on July 5th in writing.
From this it is clear, that through your lawyer, you are attempting to rewrite history and cover up for your breach of contract. Indeed, if the complete, ‘Master’ audio files had been recorded in an industry-standard sound studio, why would the voice actor be required to narrate entire chapters on a low-quality audio microphone, after I had already previously approved the voice acting? This would then require him to needlessly re-record the same chapters on the high-quality microphone, creating additional work and expense for you (in an industry-standard sound studio, if there was one), and needlessly requiring additional effort and time from the actor and production team (if there was one). This is an obvious falsehood, and will not stand.
Your justification for retaining $1,250 from my advance You justified retaining monies paid in advance, after cancellation of the contract, by stating you are entitled to charge a cancellation fee of $500, plus $750 “for recording and assemblage time over the past 3 weeks”. You further informed me that you had been working on this daily. You cited this figure without providing invoices or other details for these apparent expenses over three weeks.
Your lawyer, in his letter of July 7th, for the first time claimed a sound studio had been used, without giving details of address, or who owns it.
In light of this, it is difficult to see how you justify your claimed expenses of $750, if the three weeks-worth of audio had taken place in an industry-standard sound studio.
The average cost of a recording studio in LA is $64 per hour (see a sample listing here): https://www.peerspace.com/venues/los-angeles--ca/recording-studio
This means, that for three weeks audio recording, on a daily basis as claimed, assuming an eight hour day, for five days per week, the total average rental cost would be 8 hours x 15 days @$64 which amounts to: $7,680.
Even if we assume the cheapest studio, at around $25 per hour this is still: $3,000. And that doesn`t even include travel expenses for the actor and the actual actor’s fee and the fee for the sound engineer and narration checker, nor for the editing and mixing costs of the producer.
But you claim a much lesser figure of $750 for expenses. This provides further evidence that an industry-standard sound studio was not used. You appear to be simply putting your finger in the air, and trying to come up with a sum to unfairly retain.
Consequences: Anticipatory breach of contract Your insistence that audio set-up was to ACX standards, when it was demonstrably not, means that, under Californian law, which is the legal jurisdiction of the contract, you have repudiated the contract.
That is, by your statements and acts, you have indicated that you will not be able to substantially perform your contractual duties before they became due.
In slightly different terms, this is an anticipatory breach of contract. As such, I do not need to wait for the sixty day contractual term to be reached in order to conclude the contract has been breached and thereby to cancel it, seeking restitution.
And in order to minimise your liability to me, I immediately identified this breach of contract, and as is my legal right, given the contract was in effect null and void, asked for my entire advance payment back.
I did this in order to minimise your liability by still allowing me to source another Audiobook producer, to have the product on sale, as planned for September. The aim here was to avoid you becoming liable for compensatory and punitive damages for the anticipatory breach of contract, by missing the publication deadline of September.
Your refusal However, you refused to give me my money back. You wished to retain $1,250 from my initial advance, which you claimed was for “cancelation” and “assemblage” costs. And thus, you were only willing to reimburse $4,000.
This position was repeated by your lawyer in his letter of July 7th. But in addition, your lawyer made the reimbursement of the $4,000 that you freely agree I am owed, contingent on my signing an NDA and retracting public statements about the case.
This obviously amounts to a form of blackmail. Money you agree I am owed is being held hostage, unless I do not draw attention to your breach of contract. Needless to say, I won’t accede to these forms of abusive legal threats and strictures.
Worse for you, as you have been made aware, by refusing to reimburse that portion of the money you agree I am owed, this is an aggravating circumstance. This ensures I cannot find and pay a new production team in a timely manner. You therefore become liable for my projected loss of Audiobook sales from September onwards, which is likely to be a significant claim, in the order of tens of thousands of dollars, for compensatory damages.
Solution You have been twice given reasonable deadlines to reimburse my full advance, to avoid further legal action and liability. As it became clear from your actions, which appeared to be callous and unreasonable and indifferent to my feedback and concerns, and given your market is “indie” authors such as myself, I reluctantly decided in the public interest, to publicise my experiences with you. Indie authors tend to be private individuals, who are vulnerable precisely because they do not have larger institutional support. As such they are especially susceptible to unscrupulous service providers who take advantage of them and provide an indifferent or contractually sub-standard service.
Should you still wish to avoid legal action, with those involved called as witnesses, including the actor James Duval, then you have until 12 noon, tomorrow, 11th of July 2023, Pacific Time, to reimburse my advance in full. That will end legal proceedings in this matter.
However, once a lawyer is retained by me, legal expenses will begin to add up for both parties—and I will hold you liable for mine. Moreover, my compensatory and punitive damages will accrue as I will be losing substantial Audiobook sales from September, for which you will become liable.
Finally, do note, I will not be signing an NDA. I deplore the use of abusive threats from lawyers to suppress matters of public interest and service. Hence, I reserve the right to discuss this case with activists, campaigners, journalists and others.
I trust you are sufficiently informed.
Vyvyan Evans Ph.D