Tuesday, October 29, 2013

NEW BLOG

We have moved the Entertainment Law Resources blog to our newly redesigned website: www.marklitwak.com

For the most recent updates visit the new blog.


The Blog can be reached at New Blog Link


SEC Proposes Crowdfunding Rules
By Mark Litwak


The Securities and Exchange Commission (“SEC”) has finally proposed, for comment, new Regulations for Crowdfunding to implement the requirements of the Jumpstart Our Business Startups Act (“JOBS Act”), enacted on April 5, 2012. More than one year overdue, the SEC has released a 585-page comprehensive report with its proposed rules and underlying rationale.

The public has 90 days to offer comments on the rules. Therefore, it is likely that entrepreneurs seeking to raise capital will have to wait at least another six months or so before the agency finalizes its rules. The proposed regulations prescribe a rigorous registration process for portals, handled by both the SEC and the Financial Industry Regulatory Authority (“FINRA”), Wall Street’s self-policing body. The rules also establish record-keeping and anti-money laundering procedures.

Under existing regulations, it is difficult and expensive for a company to legally raise small amounts from ordinary investors. Crowdfunding will allow investors with an annual net income or net worth of less than $100,000 to invest up to five percent of that amount, or $2,000, whichever is more, every 12 months. Investors with an annual income or net worth exceeding $100,000 can invest up to ten percent of their annual income or net worth every 12 months. On the other hand, promoters are limited to raising $1 million during a 12-month period.
Until now, crowdfunding has been generally limited to donations. Websites such as Kickstarter have been very successful in raising funds for various artistic endeavors, like films. However, these sites do not offer equity or profit sharing in the business. Typically, donors receive T-shirts, an invite to the wrap party or festival premiere, a screen credit, or some other nominal benefit; however, they do not share in any revenue derived from the movie.

Under the recommended rules, transactions must be conducted through an intermediary that is registered as a broker or is registered as a new type of entity called a “funding portal.” The rules would require these intermediaries to deliver educational materials that explain how the offering process works and the risks associated with investing in crowdfunding. The materials could be in any electronic format, including videos. Investors will be required to represent that they have reviewed the materials and understand the risks they are taking. The portals would also be required to obtain a fidelity bond and maintain coverage for the duration of its registration.

The proposed rules will restrict advertising by directing investors to the portals, which will contain more specific information and various disclosures. They will also restrict intermediaries from promoting an offering unless they clearly disclose any past or future compensation every time that there is a communication. Likewise, the portals must disclose to potential investors how they are compensated.

The suggested rules would promote online social media by requiring intermediaries to provide the means, for investors who have opened accounts, to post comments about the offering on the portal, which would be available for both investors and the public to see. 

Portals would be required to notify investors that they have 48 hours to cancel their commitment to invest. Moreover, funds would be directed to banks where they would be held until the offering was completed or cancelled. If a target amount is not raised, the funds would be returned to the investor.

Surprisingly, the SEC intends to allow funding portals to be based outside the United States. The recommended rules would require a non-resident funding portal to appoint an agent for service of process in the United States, and to certify and provide opinion of counsel that the funding portal can provide the SEC with prompt access to its books and records and can submit to onsite inspection and examination. 

There are a growing group of companies that have already indicated they intend to become funding portals. According to FINRA, approximately 36 companies have already submitted the voluntary Interim Form for Funding Portals indicating their intention to act as funding portals under the JOBS Act.

Overall, the SEC has struck a sensible balance between protecting investors and assisting startups in seeking a cost effective way to raise funds through crowdfunding.

The proposed rules can be reviewed at:

To submit comments, go to:  http://www.sec.gov/cgi-bin/ruling-comments?ruling=s70913&rule_path=/comments/s7-09-13&file_num=S7-09-13&action=Show_Form&title=Crowdfunding

Thursday, September 05, 2013

Film Finance Webinar September 20, 2013 12:00 PM to 1:00 PM with Mark Litwak

I will be participating in a one hour Webinar for the California State Bar Entertainment and Sports Law Interest Group. 

The panelists will describe basics and potential benefits of various finance structures, highlighting practical experience and advice.  The presentation will cover significant securities law requirements and recent developments, including donation-based efforts and proposed crowdfunding rules under the JOBS Act.

Panelists: Mark Litwak, Law Offices of Mark Litwak and Associates and John Cones, Law Offices of John W. Cones.  Moderated by Adam Brezine, Bryan Cave.

Presented by the State Bar of California, Intellectual Property Law Section. Open to lawyers and non-lawyers alike. Lawyers  receive MCLE credit. 

Saturday, August 03, 2013




Mark Litwak was interviewed about the movie industry on the KBeach radio show the Kaine Perspective on August 1.

The entire show was recorded and can be listened to: Listen to Radio Interview



Saturday, July 20, 2013

Midnight in Mississippi William Faulkner v. Sony Pictures


By Mark Litwak

In 2011 Sony Pictures Classics released the hugely popular movie “Midnight in Paris,” written and directed by Woody Allen. The story centers on the character Gil Pender, a disillusioned Hollywood screenwriter who longs to be a serious novelist.   Pender, played by Owen Wilson, is on vacation in Paris with his fiancée, played by Rachel McAdams.  

Pender feels he is living in the wrong time, and soon is magically transported to the Bohemian Paris of the 1920s, where he meets such luminous figures as Ernest Hemingway, Gertrude Stein, F. Scott Fitzgerald, Pablo Picasso and Salvador Dali. This gives him the occasion to talk to his artistic heroes about his own work. 

 At one point Pender accuses his fiancée of having an affair. Incredulous, the finance asks where he came up with such a notion. He mentions Hemingway, Fitzgerald and Gertrude Stein, which even his fiancée realizes are long dead, and she scorns the notion. Pender replies, “The past is not dead! Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.”  

The inclusion of this short quote in the movie motivated Faulkner Literary Rights, LLC (“Faulkner”), which manages the Faulkner’s literary estate to bring suit for copyright infringement and unfair competition against Sony in federal court in Mississippi.  The quote is from the Faulkner book Requiem for a Nun set in the fictional Yoknapatawpha County, Mississippi.

It is unusual for a copyright infringement lawsuit to be based on the use of such short quote in a movie. Granted, Faulkner is a famous, acclaimed author, but what was borrowed here was an eight-second line of dialogue in a 94-minute movie. The movie is not based on the plot of any of Faulkner’s stories, but is an original creation from the imagination of Woody Allen.

Sony did not contest any of the facts as alleged in the lawsuit and moved for the court to summarily dismiss the complaint. A motion to dismiss challenges the legal sufficiency of a lawsuit, and the court needs to decide, assuming all the facts pled are eventually found to be true, whether there is a plausible legal claim. If the plaintiff is unable to prevail, even if it can prove all the facts it has alleged, there is no point in trying the case before a jury, and the court can decide the outcome as a matter of law.

Under the fair use doctrine, copyright law allows the right of the public to draw upon copyrighted works to produce separate works of authorship. Such uses include fair comment and criticism, parody, news reporting, teaching, scholarship, and research. Thus, a movie or literary critic does not need permission to include a small quote from a work being reviewed. It is sometimes said of writers, that if you borrow extensively from another’s work, you are a thief; but if you borrow bits from thousands, you are a scholar. Of course, the scholar adds value by synthesizing information from prior works and creating something new. This is what known as a “transformative use.” Here, however, Woody Allen’s use of the Faulkner material is not part of a literary review or news reporting. Woody Allen is borrowing the quote for use in an entertaining movie, which was a huge commercial hit, grossing $151 million at the box office.

In determining whether the use of a copyrighted work is a fair use, courts weigh four factors: 1) the purpose and character of the work; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion borrowed in relation to copyrighted work as a whole; and 4) the potential adverse effect on the market for, and value of, the copyrighted work.

In applying these factors to a specific factual situation, it can often be difficult to predict whether a use will fall within the doctrine. Generally speaking, a greater amount of material may be borrowed from non-fiction works than from fictional works. Clearly, a writer can borrow historical facts from a previous work without infringing upon the first author’s copyright, because of both the fair use doctrine and because historical facts are not copyrightable. Moreover, since factual works, unlike works of fiction, may be capable of being expressed in relatively few ways, only verbatim reproduction or close paraphrasing will be an infringement.

One encounters a lot of grey areas in applying the fair use doctrine. It is safe to say that a schoolteacher will be protected if she photocopies a Newsweek article and distributes it to her class on one occasion. If the schoolteacher, however, photocopies an entire textbook and distributes it to her students in order to save them the expense of purchasing their own texts, this would not be a fair use. But there are many situations that lie between these two extremes; and in those cases it can be difficult to predict whether the fair use doctrine will be an adequate defense.

In one case a biographer paraphrased large sections of unpublished letters written by the famous author J.D. Salinger. Although the public could easily read these letters at a university library, the author had never authorized their reproduction. Salinger brought suit and succeeded in prevented their publication.[1]
In another case, publisher Larry Flynt made disparaging statements about the Reverend Jerry Falwell on one page of Hustler magazine. Without permission, the Rev. Falwell reprinted several hundred thousand copies of the page and distributed them as part of his own fund-raising effort. Flynt then sued Falwell. Here the court found this was a fair use, perhaps because the copying did not reduce sales of the magazine, which was already off the market.[2]

After reviewing all the facts, Michael p. Mills, chief judge of the United States District Court Northern District of Mississippi, found in favor of Sony and dismissed the complaint. The Faulkner quote at issue was considered to be “of miniscule quantitative importance to the work as a whole… [and] no substantial similarity exists between the copyrighted work and the allegedly infringing work.” Moreover the judge said that it was:

…highly doubtful that any relevant markets have been harmed by the use in Midnight. How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen’s film, is more likely to suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all.

The court found that Sony’s use of the quote was a fair use. However, the fact that Sony had to incur considerable legal fees to defend itself, might will discourage an independent filmmaker with modest resources to rely on the fair use doctrine.

The full decision can be read at: Decision  




[1] Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987).

[2] Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526 (C.D. Cal. 1985).

Monday, June 24, 2013

Trouble from People Portrayed in Your Work, Part II


The right of publicity is the right of individuals to control the use of their name and likeness in a commercial setting. You cannot place an image of another person on your brand of pickles without their permission. Celebrities can earn large fees from this right by endors­ing products. Some celebrities earn more money from licensing their name or image  than they can earn from their career. According to Forbes magazine, Tiger Woods made in excess of “$100 million in annual off-the-course earnings” in 2009, compared to $21 million on the golf course.

The right of publicity is similar to the appropriation form of invasion of privacy. The principal difference is that the right of publicity seeks to ensure that a person is compensated for the commercial value of his name or likeness, while the right of privacy seeks to remedy any hurt feelings or embarrassment that a person may suffer from such publicity.

Celebrities may have difficulty making an invasion of their privacy claim because they necessarily sacrifice some solitude and privacy by virtue of their fame. How can a celebrity claim that the unauthorized use of his likeness on a product embarrassed and humiliated him while at the same time that person willingly appears in television commercials? By thrusting themselves into the public eye, celebrities waive much of their right of privacy. On the other hand, celebrities have an especially valuable property right in their names and likenesses. Most courts have held that the Right of Publicity extends to everyone, not just celebrities. But clearly the right is most valuable for celebrities because they can license their rights for large sums.

Under either a publicity or privacy theory, subjects can recover for some unauthorized uses of their names and likenesses. A prob­lem arises, however, when one person's publicity/privacy rights come in conflict with another person's rights under the First Amendment. Suppose a newspaper publisher wants to place a picture of Cher on the front page of its paper because she has done something newsworthy. Is her permission needed? The answer is no.

Although Cher's name and likeness is portrayed in the newspaper, this "product" is also a form of "protected expression." Products such as books, movies and plays are modes of expression protected under the United States constitution.  The First Amendment allows journalists to write about others without their consent. Otherwise, subjects could prevent any critical reporting of their activities. When one person's right of publicity conflicts with another person's rights of free speech under the First Amendment, the latter often but not always prevails.

However, when the likeness of Elvis Presley is used on an ashtray, there is no expression deserving protection. The seller of this product is not making a statement or expressing an opinion or view about Elvis. He is simply trying to make money by exploiting the name and likeness of Elvis. Since there are no competing First Amendment concerns, the right of publicity in this instance might well preclude the unauthorized use of Elvis’s likeness. In summary, the law draws a distinc­tion between products that contain protected expression and those that do not.

The right of publicity is derived from state law and these laws vary significantly.  In some states the legislature has enacted statutes that specifically address the scope and duration of the right. Other states rely on the common law, also known the law of precedent that arises from case decisions made by judges.   
Courts have struggled with the issue of whether the right of publicity descends to a person's heirs. In other words, when a celebrity dies, does his estate inherit his right of publicity? Can the estate continue to control the use of the celebrity's name or likeness, or can anyone use it without permission?

Some courts have held that the right of publicity is a personal right that does not descend. These courts consider this right similar to the right of privacy and the right to protect one's reputation (defamation). When a person dies, heirs don't inherit these rights. Suppose, for instance, that you were a direct descendent of Abraham Lincoln. An unscrupulous writer publishes a biography falsely claiming that Abe Lincoln was a child molester. You couldn't sue for defamation or invasion of privacy because you did not inherit these rights from your ancestor. Perhaps this is why many scandalous biographies are not published until the subject dies.

In California prior to 1984, courts held that the right of publicity was personal and was not inherited by one’s heirs.  In 1984, however, the California legislature changed the law. Civil Code Section 3344.1 provides that the right of publicity descends for pro­ducts, merchandise and goods, but does not descend for books, plays, television and movies. The statute was recently amended to extend protection so that heirs can enforce this right for up to 70 years after the death of a celebrity.  In California, a form available on the Secretary of State’s website is required to register a claim as successor-in-interest for the right of publicity.  Code Section 3344.1 requires any person claiming to be successor-in-interest to the rights of a deceased personality register their claim with the Secretary of State's Office.   Other states have their own registration requirements.  

A similar statute, California Civil Code Section 3344 prohibits the unauthorized use of the name and likeness of living individuals. Both statutes provide exceptions for uses in the news and public affairs arenas in an attempt to balance First Amendment rights against rights of publicity and privacy.

An interesting case is Hicks v. Casablanca Records, which concerned a movie made by Casablanca Records called "Agatha." The movie was about the well-known mystery writer Agatha Christie. The story was a fictionalized account of the 11-day disappearance of Christie in 1926. The film portrayed her as an emotionally unstable woman engaged in a sinister plot to murder her husband's mistress. An heir to Christie's estate brought suit to enjoin Casablanca from distributing the movie, alleging infringement of Agatha Christie's right of publicity.

The Christie estate lost the suit. The court found that Casablanca's First Amendment rights outweighed the estate's right to control the name and likeness of Christie. Because of this case and other similar rulings, we can conclude that a person’s right of publicity does not prevent others from including a person’s name, features or biography in a book, motion picture, news story.

However, the First Amendment rights of journalists and filmmakers don’t always prevail. The United States Supreme Court weighed the Right of Publicity against first amendment rights in the case of Zacchini v. Scripps-Howard Broadcasting. Zacchini also known as the “human cannonball,” was shot from cannon into a net 200 feet away at a county fair. At one performance,  a local news reporter videotaped his entire act and broadcast it as part of the local news without his consent. He objected and filed suit.  The court held in his favor explaining that the value of his act depended on the public’s desire to witness the event, so televising it detracted from the demand of people willing to pay to see his act.

The Court recognized Zacchini’s Right of Publicity and rejected the news broadcaster’s First and Fourteenth Amendment defenses. In so doing, the Court noted that the decision was not merely to ensure compensation for the performer; rather, it was to provide “an economic incentive for him to make the investment required to produce a performance of interest to the public.” So it cannot be said that the First Amendment rights of journalists are always paramount to subjects right of publicity.


UNFAIR COMPETITION

The law of unfair competition prevents a person, for instance, from establishing a movie studio and calling it "Paramount Pictures" if he/she is not affiliated with the well-known company. A person would also be barred from displaying the Paramount logo or using any other mark that might mislead or confuse consumers by leading them to believe that films are genuine Paramount movies when they are not.

The names of persons and businesses may become associated in the public mind with a supplier of products or services. The name can thus acquire a secondary meaning, and the supplier can acquire trademark rights even if he does not register the name as a trademark. In Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., the defendant exhibited a pornographic movie, "Debbie Does Dallas," which portrayed a "Texas Cowgirl" engaged in sex acts. The character wears a uniform strikingly similar to that worn by the Dallas Cowboys Cheerleaders. Ads for the movie showed the character in the uniform and included such captions as "Starring Ex-Dallas Cowgirl Cheerleader Bambi Woods."

The Dallas Cowboy Cheerleaders brought suit alleging that they had a trademark in the particular combination of colors and the design of their uniforms. The court agreed and issued an injunc­tion against further distribution of the film. Filmmakers should take note that if they portray people or products in a way that is likely to confuse the public as to the origin of a product, they may be liable for unfair competition.

Monday, May 06, 2013

TROUBLE FROM PEOPLE PORTRAYED IN YOUR WORK



As an entertainment attorney, I am often called upon to assist writers who have gotten themselves into trouble because they do not understand how their work may infringe the rights of others. A writer who learns the fine points of the law through trial and error is receiving an expensive education. Here is a brief explanation of how to protect yourself.

I. FICTIONAL CHARACTERS

If your script or film contains fictional characters -- characters from your imagination -- you generally do not need to obtain any permissions or releases. However, if there is a chance that the public could mistake your imaginary characters for real people, you could be liable if you have thereby infringed their rights.

You can protect yourself by making sure your fictional characters cannot be mistaken for real people. Give characters unusual names that no living individual would have. Check the phone book to see if any people with your character's name reside at the location portrayed in your story. If there is a person in that community with the same name or a similar one, consider changing the locale or setting the story in a fictional locale. Add a disclaimer at the beginning of the film stating that any resemblance to persons living or dead is purely coincidental.

If fictional characters are drawn from another's literary work, you might be infringing that author's copyright unless the work has gone into the public domain, or your use is considered a fair use. You may borrow personality traits, so long as you do not infringe another's copyright. The first author to create a hard-boiled private eye, for example, cannot prevent other authors from creating their own hard-boiled private eyes.

Characters that have a visual component, such as comic book characters, are more likely to be protected under copyright law. Moreover, if you borrow the name of someone else's character you may be infringing trademark rights they have in the character, and engaging in unfair competition.

As explained later, in some circumstances you may have the right to portray real-life individuals without their permission, especially if those persons are public figures or public officials.

II. FICTIONAL CHARACTERS BASED ON REAL INDIVIDUALS

A writer's imagination necessarily draws upon one's life experiences and people the writer has met. A writer can freely borrow ideas, historical facts, personality traits of characters, and themes from other copyrighted work without liability. These items are not copyrightable.

If a fictional character is loosely based on a real-life individual, and the public cannot identify the real-life individual from the context in which the fictional character is portrayed, there is little risk of liability. On the other hand, suppose you wrote a novel about the widow of a former American president assassinated in Dallas, and the widow character later marries a Greek shipping tycoon. Although, you have labeled the book a "novel," said that it is a work of fiction, and given the characters fictitious names, readers may nevertheless believe you are writing about Jackie Kennedy. If you defame her, or otherwise invade her rights, she may have a good cause of action against you. You can be liable for defaming an individual even if you do not name her.

An interesting case is Leopold v. Levin. The plaintiff, Nathan Leopold, pled guilty in 1924 to kidnapping and murdering a young boy. Because of the sensational nature of the crime, the case attracted international notoriety, which did not wane over time.

In 1956, Levin, the defendant, wrote a novel entitled Compulsion. The framework for the novel was the Leopold case, although Leopold's name did not appear in it. The book was described as a fictionalized account of the Leopold murder case. A motion picture based on the book was released with fictitious characters who resembled the actual persons from the case. The promotional materials referred to the crime but made it clear that the story was a work of fiction suggested by real-life events. Leopold sued for invasion of privacy. After the novel was published, but before the movie was released, Leopold published his own autobiography.
The court was faced with the issue of whether Leopold, who had fostered continued public attention after having engaged in an activity placing him in the public eye, had a right of privacy in a fictitious account of that activity, or in the use of his name in promoting such an account. The court found against Leopold, stating that books, magazines, and motion pictures are forms of public expression protected by the First Amendment. The court noted that while the book and movie were "suggested" by Leopold's crime, they were evidently fictional works. The novel and film depicted portions of Leopold's life that he had caused to be placed in public view. The court did not consider the fictionalized aspects highly offensive, which is the standard for determining invasion of privacy.

The court noted that a documentary account of the Leopold case would be constitutionally protected. Also, an entirely fictional work inspired by the case would be protected if matters such as locale were changed and the plaintiff was not identified.

III. PORTRAYING IDENTIFIABLE PERSONS

A person's right to privacy has to be balanced against other people's rights under the First Amendment. If Kitty Kelly wants to write an unauthorized biography about Frank Sinatra, she can do so without his permission. Likewise, Mike Wallace and his "60 Minutes" camera crew can film others without their permission. However, journalists' rights are not absolute. If Mike Wallace placed a hidden camera in a department store dressing room, he would be liable for damages for invading the privacy of customers.

Determining whether a filmmaker has infringed upon the rights of a subject who has not consented to be portrayed can be a complex matter. The status of the subject -- whether he is a public figure or public official, and whether he is alive or deceased -- may be important. Whether the activities portrayed are newsworthy may also be decisive. And, the manner in which a person's likeness is used -- whether in a film or on a coffee cup -- is relevant as well.
The most likely grounds upon which to sue for an unauthorized portrayal are defamation, invasion of privacy, right of publicity, and unfair competition. Let us consider each in turn.

A. DEFAMATION

Defamation is a communication that harms the reputation of another so as to lower him in the opinion of the community or to deter third persons from associating or dealing with him. For example, those communications that expose another to hatred, ridicule, or contempt, or reflect unfavorably upon one's personal morality or integrity are defamatory. One who is defamed may suffer embarrassment and humiliation, as well as economic damages, such as the loss of a job or the ability to earn a living.

The law of defamation can be very confusing because the common law rules that have developed over the centuries are subject to constitutional limitations. To determine the current law, one must read a state's defamation laws in light of various constitutional principles. For example, recent United States Supreme Court decisions have imposed significant limitations on the ability of public officials and public figures to win defamation actions. If a state's law is inconsistent with a constitutional principle, the law is invalid.

There are a number of defenses and privileges in defamation law. Therefore, in some circumstances a person can publish an otherwise defamatory remark with impunity. Why? Protecting a person’s reputation is not the only value we cherish in a democratic society. When the right to protect a reputation conflicts with a more important right, the defamed person may be denied a recovery for the harm suffered.

The most important privilege, from a filmmaker's point of view, is truth. If your remarks hurt someone's reputation, but your remarks are true, you are absolutely privileged. An absolute privilege cannot be lost through bad faith or abuse. So, even if you maliciously defame another person, you will be privileged if the statement is true. Truth is an absolute privilege because our society values truth more than a person's reputation.

Keep in mind that while truth is an absolute defense, the burden of proving the truth may sometimes fall on you. Thus, if you make a defamatory statement, you should be prepared to prove that it is true -- which may not be an easy task.

Another privilege is the conditional common law privilege of fair comment and criticism. This privilege applies to communications about a newsworthy person or event. Conditional privileges may be lost through bad faith or abuse. However, this privilege has been largely superseded by a constitutional privilege applied in the context of statements about public officials or public figures.

Public figures, such as celebrities, or public officials, such as senators, have a much higher burden in order to prevail in a defamation action. They must prove that the defendant acted with "actual malice." Actual malice is a term of art meaning that the defendant intentionally defamed another or acted with reckless disregard for the truth.

Plaintiffs often find it difficult to prove that a defendant acted with actual malice. That is why few celebrities sue the National Enquirer. To successfully defend itself, the magazine need only show that it acted without actual malice. In other words, the newspaper can come into court and concede that its report was false, defamatory, and the result of sloppy and careless research. But, unless the celebrity can prove that the National Enquirer acted with actual malice, the court must dismiss the case. Mere negligence is not enough to create liability when the subject is a public figure or a public official.

B. INVASION OF PRIVACY

The right of privacy has been defined as the right to live one's life in seclusion, without being subjected to unwarranted and undesired publicity. In other words, it is the right to be left alone.
Similar to defamation, the right of privacy is subject to constitutional restrictions. The news media, for example, is not liable for newsworthy statements that portray another in a false light unless the statements are made with actual malice. Unlike defamation, a cause of action for invasion of privacy does not require an injury to one's reputation.

Many defenses to defamation also apply to invasion of privacy. Truth, however, is not a defense. Likewise, revealing matters of public record cannot be the basis for an invasion of privacy action. Express and implied consent are valid defenses. If you voluntarily reveal private facts to others you cannot recover for invasion of your privacy.

Privacy actions typically fall into four factual patterns:

1.     Intrusion into One's Private Affairs

This category includes such activities as wiretapping and unreasonable surveillance. The intrusion must be highly offensive. Whether an intrusion is highly offensive depends on the circumstances. Most people would find it offensive to discover a voyeur peering through their bedroom window. On the other hand, a salesman knocking on your front door at dinner time may be obnoxious but his actions would not constitute an invasion of privacy.

2.     Public Disclosure of Embarrassing Private Facts

One who gives publicity to a matter concerning the private life of another is subject to liability for invasion of privacy if the matter publicized is highly offensive to a reasonable person, and if the matter is not of legitimate concern to the public, i.e., if the information is not newsworthy.

This type of invasion of privacy occurs, for example, where someone digs up some dirt on another person and publicizes it, but the information is not of legitimate interest to the public.

3.     Appropriation

An action for appropriation of another's name or likeness is similar to an action for invasion of one's right of publicity. An invasion of privacy action seeks to compensate the plaintiff for the emotional distress, embarrassment, and hurt feelings that may arise from the use of his or her name or likeness. A right of publicity action, on the other hand, seeks to compensate the plaintiff for the commercial value of exploiting his or her name or likeness.

As with the right of publicity, a person cannot always control another’s use of his name or likeness. While you can prevent someone from putting your face on a pancake mix box, you cannot stop Time magazine from putting your face on its cover if you have been involved in something newsworthy.

4.     False Light

Publicity that places a plaintiff in a false light will be actionable if the portrayal is highly offensive. This type of invasion of privacy is similar to defamation, but harm to a reputation is not required. For example, false light invasion of privacy could entail a political dirty trick such as placing the name of a prominent Republican on a list of Democratic contributors. Although, this person's reputation may not be harmed, he has been shown in a false light.

An interesting false light case is Spahn v. Julian Messner, Inc. Here, Warren Spahn, a well-known baseball player, sued over the publication of an unauthorized biography, alleging that his rights under New York's misappropriation (privacy) statute had been invaded. In the purported biography, the author took great literary license, dramatizing incidents, inventing conversations, manipulating chronologies, attributing thoughts and feelings to Spahn, and fictionalizing events. The invented material depicted the plaintiff's childhood, his relationship with his father, the courtship of his wife and important events in their marriage, and his military experience.

The defendant argued that the literary techniques he used were customary for books aimed at young people. The defendant never interviewed Spahn, any members of his family, or any baseball player who knew him. The author's research was comprised of newspaper and magazine clippings, the veracity of which he rarely confirmed.

The court concluded that the defendant invaded Spahn's privacy. The New York privacy statute protects a public person from fictionalized publication if the work was published with actual malice. Since the defendant writer invented large portions of the book, he obviously knew his statements were untrue. While Spahn could not prevent publication of an unflattering biography simply because he did not like its contents, this fictitious report masquerading as fact was not protected.

Next blog:  THE RIGHT OF PUBLICITY

Self Defense Seminar:
Date: May 21, 2013, New York

This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights, and encouraging the other party to live up to agreements by adding performance milestones, default penalties, and arbitration clauses. This seminar is an all-day class with Mark Litwak. Attorneys may earn CLE credit. Excerpts from Mark’s last seminar in New York on financing films can be viewed at: Link

Volunteer Lawyers for the Arts presents Mark Litwak’s Self Defense Seminar:   Seminar info

Mark Litwak is a veteran entertainment attorney and Producer’s Rep based in Beverly Hills, California. He is the author of six books including: Reel Power: The Struggle for Influence and Success in the New Hollywood; Dealmaking in the Film and Television Industry; Contracts for the Film and Television Industry; and Risky Business: Financing and Distributing Independent Film. He is an Adjunct Professor at the USC School of Law and the creator of Entertainment Law Resources website. www.marklitwak.com

Wednesday, April 03, 2013

Self Defense Seminar in New York May 21, 2013


Tuesday May 21st from 9:30AM - 4:30PM

Mark will be returning to New York City on May 21st to present his Seminar Self Defense for Writers and Filmmakers under the auspices of Volunteer Lawyers for the Arts



Writers and filmmakers need to understand their legal rights and how to defend themselves from those who may seek to exploit them. Production companies and distributors often know all the tricks of the trade, while writers and filmmakers know little about how to protect themselves. 
  
This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights, and by encouraging the other party to live up to agreements by adding performance incentives, default penalties, and alternative dispute resolution clauses. In the event of a dispute, participants learn what remedies are available to enforce their rights. 
  
Related topics include:
  • creative approvals
  • typical compensation and terms of studio contracts
  • merchandising deals
  • negotiating tactics and strategies 
Extensive handouts (see below) will be made available.  

Where:
Proskauer Rose LLP
11 Times Square, New York, NY


Space is Limited. Please register early if you want to attend.

To Register