Friday, December 20, 2002

Hawaii Offers Generous Tax Credits to Film Production Companies

December 20, 2002

In This Newsletter:

Hawaii Offers Generous Tax Credits to Film Production Companies

Hawaii recently enacted some very impressive and generous tax incentives. Hawaii’s high tech investment tax credit provides a 100% return on cash investments in a qualified high tech business (QHTB) on a front-loaded basis over 5 years (35% credit in the year of investment, 25% in the following year, 20% in the second year following, then 10% each in the third and fourth year following). Qualified research activities include performing arts products such as motion pictures. The credit is designed to give a 100% return for investments up to $2 million per year per QHTB. The credit applies against Hawaii income tax liability only. The credit can be taken by individuals and corporations paying Hawaii income tax, and by banks and insurance companies against their franchise and insurance premium tax.

Moreover, if money from outside Hawaii is invested, the tax benefits can be allocated to the Hawaiian investors so they can obtain more than 100% return. So for example, if a Hawaii investor put up $500,000 and an Arkansas investor put up $500,000, the parties could agree to allocate all the tax credits to the Hawaii investor (since the Arkansas investor doesn't pay taxes in Hawaii they are worthless to him anyway). So the Hawaii investors gets back 200% return over 5 years. In return, the Arkansas investor could be given a greater share of the back end, or preferred recoupment.

The production entity would be required to employ or own capital or property or maintain an office in Hawaii, to have more than 50% of its total business activities in performing arts products and to conduct more than 75% of those activities in Hawaii. In other words, 75% of the budget needs to be spent in Hawaii. I currently represent a Hawaiian company that can serve as the production entity that has received a comfort ruling from the Department of Taxation indicating that the company qualifies.

In order to qualify, companies need to stay in business in Hawaii for at least five years, and should have some copyright ownership of the picture. There are many more details but those are the basics. For additional information about Hawaii’s tax incentives, goto http://www.state.hi.us/tax/hi_tech.html.

I am working with a major Hawaiian law firm and a large Hawaiian bank on several co-productions. I am looking for projects that can be shot in Hawaii that have partial financing, preferably at least half the budget from non-Hawaiian sources. Note that there are not many shooting stages or post facilities in Hawaii, so stories that can be shot on location in Hawaii are best.

"Tom Dowd and the Language of Music" to Screen at Sundance
Congratulations to our clients Mark Moormann and Mark Hunt. Their film, TOM DOWD AND THE LANGUAGE OF MUSIC, has been selected for the 2003 Sundance Film Festival's Documentary competition.

The documentary describes the life and influence of Tom Dowd, legendary recording engineer and producer. Dowd helped shape the sounds of a wide variety of pop, R&B, soul, jazz and roll & roll artists including Ron Stewart, Aretha Franklin, John Coltrane, and Eric Clapton.
For more information about "Tom Dowd and the Language of Music," visit http://www.thelanguageofmusic.com/.

Composer Can't Sue for Copyright Infringement
A federal District Court in Los Angeles has ruled that though composer Richard Warren can sue Fox Family Worldwide for breach of contract he cannot sue for copyright infringement, in a case that pitted the "Remington Steele" composer against the media conglomerate.

In the 1980's, Warren signed several composer agreements with the "Remington Steele" series producer, MTM. Some of these agreements did not include the phrase "work made for hire" and none of them specified that Warren's work was "specially ordered or commissioned." The agreements did entitle Warren to the writer's share ofASCAP and BMI performance fees. In addition, if the show were licensed to companies that did not hold ASCAP or BMI licenses, the producer would pay a portion of the license fees to Warren.

Fox Family Worldwide succeeded MTM and assumed the license rights to "Remington Steele." Fox Family eventually signed agreements to license the show to the Christian Broadcasting Network and Princess Cruises, neither of which held ASCAP or BMI licenses when the agreements were signed. Fox Family failed to pay Warren.
Warren sued for copyright infringement and asked that his agreements be rescinded and his full rights to the music copyright be returned because Fox Family never paid the performance fees. The District Court ruled that the agreements Warren signed were in fact work for hire agreements, making Fox Family the rightful copyright holder. Therefore, Warren had no standing to sue for copyright infringement.

The court refused to grant Warren's request for rescission, stating that, "where…there is an express contractual obligation to pay royalties, the remedy for breach is clear, and the implication of a right to rescind is not necessary."
The District court granted Fox Family's motion to dismiss the lawsuit.Warren v. Fox Family Worldwide, Inc., 171 F.Supp.2d 1057, 201 U.S.Dist.LEXIS 22207 (C.D.Cal. 2001)

Friday, December 13, 2002

Texan Can't Be Sued in California for Releasing DVD Decryption Software on the Web

December 13, 2002

In This Newsletter:

Mark Litwak to Speak at HarvardOn Sunday, December 22 at 2PM, Mark Litwak will give a one-hour lecture on "Self-defense for Filmmakers" at Harvard University.

This free seminar is open to the public and will be held in the Graduate Student Lounge, 2nd Floor, Lehman Hall. Anyone planning to attend should RSVP to Valerie Weiss at vhweiss@fas.harvard.edu. You must arrive on time as the entrance doors will be locked at 2PM.

For more information, please visit the Dudley Film Program website at http://go.to/dudleyfilm.

"Levity" to Open 2003 Sundance Film Festival
Congratulations to our client Echo Lake Productions. Their film, LEVITY, has been selected to screen as the opening night film at the 2003 Sundance Film Festival. The directorial debut of screenwriter Ed Solomon (MEN IN BLACK), the film will be distributed in the U.S. by Columbia TriStar and internationally by Canal+. The film stars Billy Bob Thornton, Morgan Freeman, Holly Hunter, and Kirsten Dunst.
For more information about Levity, visit Echo Lake Productions' website at http://www.echolakeproductions.com/intheaters/intheaters.htm.

Texan Can't Be Sued in California for Releasing DVD Decryption Software on the Web

In a ruling that has the DVD industry worried, California's Supreme Court has decided that the state has no jurisdiction in a trade secret infringement lawsuit involving the Web-based LiViD video project and California's DVD Copy Control Association.
The DVD Copy Control Association alleged that LiVid's founder, Matthew Pavlovich, infringed its trade secrets in posting code on the Internet that could unscramble its encryption software. Furthermore, the Association argued that the movie industry, with so many companies based in California, would suffer if DVDs could be illegally copied at leisure. The case should therefore be adjudicated in California.

In a 4-3 decision, the California high court said that it had no personal jurisdiction over Pavlovich, who lives and works in Texas and was a student in Indiana when he first posted the decryption code, known as DeCSS.

The majority stated that Pavlovich had no apparent California contacts. Furthermore, that although his software was posted on the Web, his site "merely posts information and has no interactive features." There was nothing on the Website to show there was any intent, express or implied, to directly target California and its DVD and movie industries. As Pavlovich did not have sufficient "minimum contacts" in the state and had no intent to impact state business, he could not be sued in California

The majority expressed concern that if Websites like Pavlovich's, which contained nothing more than information and no interactive features, could be the basis for jurisdiction, then "mere use of the Internet would subject the user to personal jurisdiction in any forum where the site was accessible."

The dissenters in the case argued that though Pavlovich had never established a residence or business address in California, the code he posted on the Internet could be used by anyone in every state, including California.

In addition, the dissenters stated that Pavlovich knew or should have known that posting DeCSS to his Website would harm the DVD and movie industries, and he knew or should have known that these industries are primarily based in California. Therefore, Pavlovich did target California's DVD and movie industries.
It is expected that the case will be brought for consideration before the U.S. Supreme Court.

Friday, November 22, 2002

Unauthorized Depiction of Real People Does Not Violate Rights Says Federal District Court

November 22, 2002

In This Newsletter:

Unauthorized Depiction of Real People Does Not Violate Rights Says Federal District Court

A Federal District Court has ruled that the unauthorized depiction of relatives of deceased members of the crew featured in "The Perfect Storm" does not violate their rights of privacy, nor is it commercial misappropriation under Florida law. Claims by a surviving member of the crew were also dismissed.

In the case brought against Warner Bros. and its co-defendants, Judge Anne Conway ruled that movies are not a "commercial purpose" under a Florida statute and so the use of real people's names in a film does not violate the statute. Even if movies were covered under the statute, the film is protected by the First Amendment and so there would be no grounds to sue on this issue.

The plaintiffs argued that since the movie was a fictionalized account, the statute should apply. Judge Conway found that fictionalization was "immaterial," as the statute has never been interpreted to include falsity as a factor.

Judge Conway also dismissed plaintiffs' claim of false light invasion of privacy argument, determining that the deceased family members' privacy interests could not be legally represented by their living relatives. Invasion of privacy is a personal right that does not descend to one's heirs. As for the relatives themselves, the judge said they were not falsely depicted in the film, so they had no standing.

Finally, plaintiffs unsuccessfully argued that the film disclosed private facts. The judge ruled that this claim requires the disclosed facts to be both private and true, whereas the plaintiffs contended that the disclosed facts were false.

Motion for Summary Judgment was granted to Warner Bros.
Tyne v. Time Warner, 204 F.Supp.2d 1338, 2002 U.S.Dist.LEXIS 9912 (M.D.Fla. 2002)

“Pendulum” to Show on Cinemax
"Pendulum," from our client Charles Acosta, will be running on Cinemax later this month.

Winner of the 2001 Deep Ellum Film Festival "Best Dramatic Feature" Award, and official selection at the 2001 Hollywood Film Festival and San Marco Film Festival, "Pendulum" is a crime/suspense story about power and gender. A woman police detective (Rachel Hunter) tries to crack a murder case whose facts are covered up by a boys' club. The film also stars James Russo and Matt Battaglia.

"Pendulum" airs Nov. 30 and Dec. 16 on Cinemax. Check local listings for showtimes.
Click here to go to the "Pendulum" website: http://www.pendulumfilm.com/home.htm

“To End All Wars” to Open at L.A.’s Arclight Cinemas
Our client, producer Jack Hafer, is proud to announce a one week exclusive engagement of the film, "To End All Wars," at the ArcLight Cinemas in Hollywood from December 6 – 12.

"To End All Wars" is based on a true story about four Allied POWs who endure harsh treatment at the hands of their Japanese captors during World War II while being forced to build a railroad through the Burmese jungle. Ultimately they find true freedom by forgiving their enemies. The film stars Robert Carlyle and Kiefer Sutherland. The film has been shown at many festivals including Toronto and Telluride.
Click here for the "To End All Wars" website: http://www.toendallwars.com/Call Arclight Cinemas at 323.464.1478 for tickets and show times or visit them on the web at http://www.arclightcinemas.com.

Mark Litwak Discusses Dead Celebrity Rights in Nov/Dec. SCREENTALK
What privacy rights to dead celebrities have? In the November/December issue, four entertainment attorneys, including Mark Litwak, answer common questions filmmakers ask about what can and can't be done with a celebrity's name and likeness in a project.Screentalk can be found on newsstands and online at http://www.screentalk.org.The November/December table of contents is available at http://www.screentalk.org/currentissue.htm.

Saturday, November 09, 2002

Novel May Have Infringed Non-Fiction Book

November 9, 2002

In This Newsletter:

Novel May Have Infringed Non-Fiction Book

It is well established under copyright law that historical facts are not copyrightable. Facts, ideas, themes, subject matter and titles are inherently not eligible for copyright protection. Thus, a novelist can freely borrow facts from encyclopedias, newspapers and other source books and incorporate these facts in his own a fictional work. Moreover, actual quoted comments from third parties should not be copyrightable since they are not original to the author -- and originality is one of the requirements for copyright protection. An interesting case brought in Utah, however, has resulted in a ruling that the author of a non-fiction book might have a claim against a novelist who borrowed information from his work.

The Plaintiff was a W.W. II veteran who wrote a memoir about his experiences including participating in the Bataan Death March. The defendants are Dean Hughes the author of the "Children of the Promise" series of novels and his publisher. The novels portray the life of a Mormon family. A portion of one novel closely follows the Plaintiff’s actual experiences as told in his non-fiction book.

The federal district court granted defendants motion to dismiss because a non-fiction book is entitled to minimal protection under copyright law, and because the novel borrowed only unprotected facts. But the Court of Appeals reversed, and sent the matter back to the trial level.

The Appellate court said that while “supersubstantial similarity” must ordinarily be shown in infringement cases based on borrowing from factual compilations, such as telephone directories, the non-fiction book here contained more creative effort and original expression. Therefore, the appropriate standard that should have been used by the lower court was “substantial similarity.” The court noted that both books contained identical scenes, and the novelist had borrowed the actual remarks of persons as quoted in the non-fiction book. While borrowing such third-party quotes would usually not be a basis for copyright infringement (because third party quotes are not original to the book author), the court reasoned that the quotes here were more likely paraphrased remarks. The court noted that the author did not contemporaneously record the actual words spoken, and thus the quoted material is more likely to be the author’s expression based on his recollection of what others said, rather than the actual words that were spoken.
Jacobsen v. Deseret Book Co., 287 F.3d 936, 2002 U.S. App. LEXIS 7351 (10th Cir. 2002).

Mark Litwak to Speak at the Deep Ellum Film Festival
I will be presenting a special workshop on November 16, 2002 at the upcoming Deep Ellum Film Festival in Dallas, Texas. The three-hour seminar explores how independent films are financed and distributed. Topics include financing via pre-sales, debt and limited partnerships, negotiating tactics, typical contract terms, cross-collaterization and creative accounting. Particular attention is paid to how producers and filmmakers can protect themselves by watering down warranties, getting added to the E & O policy, using lab access letter to retain possession of the negative, utilizing termination and arbitration clauses.
Details: Admission $20Deep Ellum Film Festival HeadquartersSaturday, November 16, 2002 from 2:00 pm to 5:00 pmLimited to 50 peoplePlease RSVP to Workshop@def2.org include name, phone numbers, and address
I will also be participating in a panel discussion on November 17 at 11:00 AM on “Film Distribution... I've made a film, how do I sell it?" This panel explores the many facets of independent film distribution, and how an independent filmmaker can better his odds.Deep Ellum Film Festival: http://www.def2.org

Monday, September 30, 2002

Supreme Court to Review Challenge to Copyright Term Extension Act

September 30, 2002

Supreme Court to Review Challenge to Copyright Term Extension Act

On October 9, the Supreme Court will hear oral arguments that will determine the constitutionality of the Sonny Bono Copyright Term Extension Act.

The Act, effective since 1998, extends the length of time an author can retain copyright to their work. Petitioners in the Supreme Court case are challenging the Act, calling it an unconstitutional exercise of congressional power that violates the First Amendment and unduly burdens those who seek to create new works based on old ones. They are hoping the Court will strike down the Act and potentially prevent Congress from further extending the length of time a work may be copyrighted.

The government argues that it has the constitutional right to determine the length of both new and existing copyrights and does not violate the First Amendment.
For more on Eldred v. Ashcroft, see http://eldred.cc/

Internet Entertainment Company Sues Movie StudiosA Web-based video-on-demand company has filed an anti-trust suit against three major movies studios, alleging that the studios are conspiring to kill their online competition.
While the complaint, filed by Culver City-based Intertainer, Inc., accuses AOL Time Warner, Sony, and Vivendi Universal of working together to fix pricing for content on demand, the heart of the suit lies in the question of who will control direct-to-viewer digital distribution.

Last year, the three studios had announced they were joining forces to form Movielink, an Internet video-on-demand service that directly competes with Intertainer.
Intertainer, Inc.http://www.intertainer.com/
Movielinkhttp://www.movielink.com/Read the Intertainer Complaint (PDF file)http://www.intertainer.com/intertainer.pdf

Friday, September 13, 2002

Lucasfilm Can’t Block Pornographic “Star Wars” Parody

September 13, 2002

Lucasfilm Can’t Block Pornographic “Star Wars” Parody

In a brief decision, U.S. District Court Judge Claudia Wilken thwarted Lucasfilm Ltd.’s attempt to block distribution of an animated, pornographic parody of “Star Wars.”
Lucasfilm had tried for a preliminary injunction against Media Market Group, producer or distributor of the porn parody “Starballz,” claming trademark dilution, copyright infringement and trademark infringement.

While the judge said the film “tarnishes the Star Wars family of marks by associating them with a pornographic film that is inconsistent with the image Star Wars has striven to maintain for itself,” she noted that because the film is a parody, Lucasfilm failed to prove that it was likely to succeed on any of its claims.

FTC Warns Web Search Engines to Make Sponsorships Clear
Wonder why some websites are always tops on the hit list?
The Federal Trade Commission has been wondering the same thing and has issued a recommendation that all search engines clearly show which companies have paid for positioning.

Prompted by a complaint letter filed by an anti-commercialism organization, the F.T.C. conducted an investigation into whether search engine companies misled its users by quietly inserting advertisements into search results.

The F.T.C. determined that while most search engines usually distinguish paid advertisements from unpaid listings, the disclosures were not sufficiently clear in some cases.

“As a general matter, clear and conspicuous disclosures would put consumers in a position to better determine the importance of these (paid inclusion) practices in their choice of search engines to use,” the F.T.C. wrote.
For the complete FTC response, see http://www.ftc.gov/os/closings/staff/commercialalertletter.htm. For the letter sent to the search engine companies, see http://www.ftc.gov/os/closings/staff/commercialalertattatch.htm.

25 New Faces
Congratulations to Craig Brewer for the distinction of being named one of the “25 New Faces of Indie Film” in the summer issue of Filmmaker Magazine. Craig’s low budget feature, “The Poor and Hungry” is a love story between a car thief and a cello player set in Memphis, Tennessee. The film has been shown on the Independent Film Channel.
August 6, 2002


Film Finders Offers Free Listings

Film Finders, a 15 year-old feature film tracking service and database for distributors seeking to buy films and also for film festivals for their programming purposes wants to list your feature for free! They will also grant you temporary free access to their website which lists all world companies currently buying and selling films plus all films currently available in the world markets. Lastly, they provide unique consulting services especially designed for independent producers and will send you info describing these services. Contact: PeterBelsito@filmfinders.com. Go to http://www.filmfinders.com/

Court Declines To Dismiss Lawsuit Against Publisher Of “Hit Man.”
Generally, publishers are well protected by the First Amendment’s guarantee of free expression. But when Paladin Enterprises, published the book “Hit Man, A Technical Manual for Independent Contractors” it may have gone too far. A hit man allegedly attempted to murder plaintiff Bobby Joe Wilson in accordance with the book’s instructions. While the attempted murder failed, the victim and her son were injured. They sued the publisher for aiding, abetting and conspiring to commit assault and battery. The publisher asked the court to dismiss the lawsuit. Federal Magistrate Thomas Coffin rejected the publisher’s First Amendment defense citing the prior case of Rice v. Paladin Enterprises which concerned another lawsuit against the same publisher arising from another reader’s criminal actions. Wilson v. Paladin Enterprises, 186 F. Supp.2d 1140, 2001 U.S. Dist.LEXIS 23661 (D.Or.2001).

Monday, July 15, 2002

Lansdown Premier

July 15, 2002

You are invited to attend the Los Angeles theatrical premiere of Lansdown, a film directed by my client Tom Zuber.

Starting FRIDAY JULY 19th the award-winning film will play every day in LA at the LAEMMLE MUSIC HALL located at 9036 Wilshire Blvd. (@ Doheny Dr.), Beverly Hills, CA (310-274-6869). Show times for the first week are:

Friday(7/19): 5:00, 7:10,Saturday(7/20)-Sunday(7/21): 12:20, 2:40, 5:00, 7:10, 9:20Monday(7/22)-Thursday(7/25): 5:00, 7:10, 9:20
Filmmakers and cast will be available for Question & Answer after the 7:10 and 9:20 showings on Friday July 19th, Saturday July 20th, and Sunday July 21st. A ticket stub from any Lansdown showing will earn free admission to after-parties taking place on Friday July 19th at The Continental Supper Club (8400 Wilshire @ Gale), and Saturday July 20th at The Firm (6311 Wilshire @ Crescent Heights). After parties will start at 9pm and run all night.
For story synopsis, critical acclaim and other info click on www.lansdown.net/onesheet-la.
The film has also been theatrically released in New York and New Jersey. Zuber was recently signed by Overbrook Entertainment (Will Smith's management company), and just received an offer to finance and produce a thriller he co-wrote entitled The Fall, which he is attached to direct.

Friday, June 14, 2002

WGA UNVEILS NEW LOW BUDGET AGREEMENT

June 14, 2002

WGA UNVEILS NEW LOW BUDGET AGREEMENT

The Writers Guild has announced a new agreement for indie films with budgets of $750,000 or less. In order for the agreement to apply, all writers on the project must request its use in writing. Moreover, in exchange for the deferral, the writer of an original screenplay must perform all writing services. No other writer can be employed without the approval of the writer of the original script.

The new low budget agreement permits the deferral of all or part of the purchase price for an existing script, and the deferral of all or part of the compensation for a first rewrite. However, upon commencement of principal photography, if the budget is more than $500,000, the Producer must pay the writer at least $10,000.

Full payment of the deferment is due upon receipt of monies from any source after recoupment of the total production cost, or commencement of commercial distribution, whichever occurs earlier.

All other provisions of the MBA continue to apply, including obligations in regard to residuals, credits, pension and health payments and separated rights.

VIDEO RETAILERS CHALLENGE REVENUE SHARING

Revenue Sharing is a practice that allows video retailers to obtain cassettes of films for a reduced cost if the retailer agrees to share rental revenues with the distributor. This permits the retailer to stock numerous copies of new films for a nominal cost. The traditional agreement between studios and retailers required the retailer to buy tapes at the full wholesale price which could be substantial ($20-$50). Because of the first sale doctrine under Copyright Law, retailers could repeatedly rent out the tapes to the public, and retain all the revenue for themselves.

Blockbuster had entered into revenue sharing agreements with a number of major studios. Independent retailers objected on the grounds that this arrangement allowed Blockbuster an unfair competitive advantage. Revenue sharing was not invented by Blockbuster, and independent retailers could obtain tapes on a revenue sharing basis from such companies as Rentrak. The independents charge, however, that the favorable terms granted by major studios to blockbuster were not available to them. Blockbuster’s share of the market rose from 27% to 40% during this period, although other factors may well have been responsible for this growth. Blockbuster is owned by Viacom.
This week the retailers’ case came to trial in U.S. District Court in San Antonio, Texas. Viacom Chairman Sumner Redstone testified that he didn’t ask for any exclusive deal with the major studio suppliers.

If successful, the suit could have a significant impact on how tapes are distributed to the home video market. Of course, Blockbuster recently announced that it was not going to renew some of its revenue-sharing deals. And with the tremendous growth of DVD’s (which are not distributed on a revenue-sharing basis) revenue sharing may come to an end anyway.

Friday, May 24, 2002

DREAMWORKS WINS PLAGIARISM SUIT

May 24, 2002

DREAMWORKS WINS PLAGIARISM SUIT

Dreamworks has prevailed in a copyright infringement lawsuit brought by former Green Beret Keith Idema who claimed the movie AThe Peacemaker@ infringed his novel and screenplay. The infringement claims were dismissed by Judge Audrey Collins in a lengthy 70-page decision which includes a detail analysis of the works and explains why the similarities do not amount to copyright infringement. The similarities included a border-crossing scene and a checkpoint scene, as well as the premise that a nuclear warhead carried in a backpack could destroy much of a city.
Idema v. Dreamworks, Inc., 162 F. Supp.2d 1129, 2001 U.S. Dist. LEXIS 14810 (C.D. Cal. 2001).

UPCOMING UCLA SEMINAR

I will be teaching a UCLA class this summer on Financing Independent Features and Negotiating a Distribution Agreement which is the subject of my next book.
This comprehensive seminar explores how independent films are financed and distributed. Topics include financing via pre-sales, debt and limited partnerships, negotiating tactics, typical contract terms, cross-collateralization and creative accounting. Particular attention is paid to how producers and film makers can protect themselves by watering down warranties, getting added to the E & O policy, using lab access letter to retain possession of their negative, and utilizing termination and arbitration clauses. The seminar includes a handout with a distribution contract, articles, self-defense checklist and other materials.
8.75 hours of MCLE credit available.
Reg# M7896B
UCLA: Public Policy Bldg.Saturday, 10am-5pm,August 10Sunday, 9am-12pm,August 11
To register for the class call UCLA at (310) 825-9971 or visit their website:www.uclaextension.org/entertainmentstudies

Tuesday, April 30, 2002

Lawsuit Filed Against Producer Who Captured Women Baring Their Bodies in Public

April 30, 2002

Lawsuit Filed Against Producer Who Captured Women Baring Their Bodies in Public

A Florida State University student is suing a producer who videotaped her as she exposed her breasts in public on Bourbon Street in New Orleans during Mardi Gras. The footage was included in the production “Girls Gone Wild,” with the woman’s image also put on videocassette covers. The motion picture features women exposing their bodies at Mardi Gras, Spring Break and other events. The plaintiff claimed the producer invaded her privacy and used her image without her consent. The defendant replies that the breast-baring video is a "newsworthy event," and protected under the First Amendment.
The student will have a difficult time winning on an invasion of privacy claim. Courts have held that people do not have a reasonable expectation of privacy in public places. In Gill v. Hearst Publishing, 40 Cal. 2d 224 (1953), the "Ladies Home Journal" published an unauthorized photograph of Mr. and Mrs. Gill in an affectionate pose at a confectionery and ice cream concession at the Farmer's Market in Los Angeles. The Gills were fully clothed and in open public view when a passing photographer snapped their picture without their consent. The photo was used in the magazine as an illustration of a type of "love at first sight," based solely on sexual attraction. Nothing in the article mentioned the Gills or their relationship B they were merely subjects in a stock photo bought to illustrate the story. The court found against the Gills, reasoning that if everyone had the right to stop publication of photos taken without their permission, no photo could ever be published of a street scene or a parade.

The more difficult issue to resolve is whether the “Girls Gone Wild” footage infringes the woman’s Right of Publicity. The Right of Publicity is the right everyone has to control the use of their name, likeness and image on commercial products. A manufacturer cannot put a person’s image on its brand of tomato sauce without that person’s permission. The Right of Publicity is typically exploited in the realm of commercials and endorsements. Some sports stars earn more from licensing their image than they make in salary.

However, when a person’s image is used on a product such as “Newsweek” magazine, the publisher’s rights to free expression under the First Amendment may conflict with the subject’s right to control the use of their name and likeness. In most of these cases, the First Amendment right of free expression has been considered the paramount right. California recognized this principle when enacting Civil Code section 3344 which prevents the use of people’s name and likeness on products and goods but exempts such uses in news, public affairs and sports broadcasts.

LANSDOWN Opens in New Jersey

Congratulations to our client, Tom Zuber, whose film Lansdown opened in New Jersey this past weekend and was the highest grossing film at Hillsborough Cinemas, out grossing movies such as Panic Room and The Scorpion King.
LANSDOWN has been lauded as "a wonderfully eccentric piece of independent film making.”

Critical acclaim for LANSDOWN:
"a well-paced, wryly offbeat noir" - The Boston Herald
"a winner" - Entertainment Today
"the first-time director cleverly blends an exciting mix of stylish dark humor, tense drama and a distinctive technique to tell his moody tale about infidelity" - The American Reporter
"Tom Zuber takes us on a sharp little walk on the dark side... D.W. Warren shows true comedic talent and timing." - Guerrilla Filmmaker
"[Lansdown] scores as a nifty normal-folk-doing-stupid-deadly-things comedy a la 'Fargo'... with Zuber and his cast of unknowns all earmarked as talents to watch." - Daily Variety
The Hillsborough Cinemas are located at 111 Raider Blvd., Belle Mead, NJ.
LANSDOWN will also be opening in New York City and Los Angeles later on this year. LANSDOWN is being distributed by Outrider Pictures. For more information on LANSDOWN visit www.lansdown.net.Starting Friday May 3rd Lansdown will also be playing at the Clearview Clairidge Cinemas at 486 Bloomfield Ave., Montclair, N.J.

Wednesday, April 24, 2002

SELF-DEFENSE FOR FILMMAKERS

April 24, 2002

SELF-DEFENSE FOR FILMMAKERS

This coming weekend (April 27 and 28, 2002) I will be teaching my UCLA extension class on Self-Defense for Filmmakers. This seminar explains how writers and filmmakers can prevent problems by properly securing underlying rights, and by encouraging other parties to live up to agreements by adding performance incentives, default penalties and arbitration 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, and negotiating tactics and strategies. The seminar includes more than 100 pages of useful contracts, checklists, forms and materials. MCLE credit available.

The class is held on Saturday from 10 AM to 5 PM, and on Sunday from 9 AM to 12 PM in room 2250 in the Public Policy Building at the UCLA campus in Westwood.
To register for the class call UCLA at (310) 825-9971 or visit their website:www.uclaextension.org/entertainmentstudies

Wednesday, April 17, 2002

UPCOMING UCLA SEMINARS

April 17, 2002

UPCOMING UCLA SEMINARS

I will be teaching a new UCLA extension class this summer on Financing Independent Features and Negotiationg a Distribution Agreement.
This comprehensive seminar explores how independent films are financed and distributed. Topics include financing via pre-sales, debt and limited partnerships, negotiating tactics, typical contract terms, cross-collaterization and creative accounting. Particular attention is paid to how producers and filmmakers can protect themselves by watering down warranties, getting added to the E & O policy, using lab access letter to retain possession of their negative, and utilizing termination and arbitration clauses. The seminar includes a handout with a distribution contract, articles, self-defense checklist and other materials.
8.75 hours of MCLE credit available.
Reg# M7896BUCLA: Public Policy Bldg.Saturday, 10am-5pm,August 10Sunday, 9am-12pm,August 11

Monday, April 08, 2002

The Importance of an Assignment Clause

April 8, 2002

The Importance of an Assignment Clause

A recent case by the Ninth Circuit Court of Appeals makes clear why it is important to include an express provision allowing assignment when entering into an exclusive copyright license. The court held that a licensee cannot transfer its exclusive rights without the copyright owner’s consent.

The case concerned a cartoon character called AMC Teach, which was owned by Nike. Nike granted Sony an exclusive license to use the character in certain specified ways. The license did not address whether Sony could sub-license its rights. Sony subsequently transferred all its rights to a person who used the character on educational materials. Nike objected.

This case illustrates how important it is for production companies to obtain written consent to assign their rights when they license underlying works, such as books, scripts and music. Without an assignment clause permitting assignment, the production company may not be able to assign its rights to third parties. Moreover, if a production company goes bankrupt, its assets would include the right to distribute its productions. But if the rights to use the underlying works in those productions, such as music on the soundtrack, could not be assigned, then these motion pictures might be worthless. Gardner v. Nike, Inc., Download PDF

Craig Brewer wins Rockefeller Fellowship
Congratulations to our client writer/director Craig Brewer who has just been awarded a Rockefeller Foundation Media Art’s Fellowship. 22 Fellows were accepted this year. A list of the awards can be found at www.RockMediaFellows.org. The award comes with a stipend of $35,000. Craig’s The Poor & Hungry will be playing at the DGA theater on Thursday, May 9, 2002 at 7pm. The screening is open to the public.

Friday, March 15, 2002

UCLA SEMINAR ON SELF-DEFENSE FOR FILMMAKERS

March 15, 2002

UCLA SEMINAR ON SELF-DEFENSE FOR FILMMAKERS

I will be repeating my UCLA extension class on Self-Defense for filmmakers on April 27 and 28, 2002.

Writers and filmmakers need to understand their legal rights and how to defend themselves from those who may seek to exploit them. This seminar explains how writers and filmmakers can prevent problems by properly securing underlying rights, and by encouraging other parties to live up to agreements by adding performance incentives, default penalties and arbitration 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, and negotiatĂșing tactics and strategies. The seminar includes more than 100 pages of useful contracts, checklists, forms and materials. MCLE credit available.

The class is held on Saturday from 10 AM to 5 PM, and on Sunday from 9 AM to 12 PM in room 2250 in the Public Policy Building at the UCLA campus in Westwood.
To register for the class call UCLA at (310) 825-9064 or visit their website: www.uclaextension.org/entertainmentstudies

BERMUDA FILM FESTIVAL

This year’s Bermuda Film Festival will take place from April 12-18. As a member of the board of advisors to the festival I look forward to returning to beautiful Bermuda and enjoying the festival. I will speaking on Monday, April 15 on the topic AFilmmakers Take Note, Placing Music in your Film.

I am pleased to have arranged as the opening night film “To End All Wars” (www.toendallwars.com), produced by my clients Director David Cunningham and Producer Jack Hafer. “To End All Wars” was shown recently at the Telluride, Toronto and Mill Valley Film Festivals to great acclaim. The film will be the closing night film at the Methodfest film festival in Pasadena on April 18, 2002. This powerful WW II picture stars Kiefer Sutherland and Robert Caryle. We regret that the subject of the film, POW survivor Ernest Gordon, recently passed away.

Check out the Bermuda film festival at: http://www.bermudafilmfest.com/

FESTIVAL LIST

Now visitors to my website can directly add or revise a festival listing. We have a listing of film and video festivals with contact information. Our new self-upload tool allows you to directly submit information about your film festival by filling out a form online. Please go to to the festival form at: http://www.marklitwak.com/festival.asp. There is no charge for listing your festival.

Wednesday, March 13, 2002

Articles Published

March 13, 2002

Congratulations to our client, director Richard Gale, who was interviewed on a major Australian movie site. http://www.webwombat.com/entertainment/movies/pressure_int.htm

Articles Published
Two articles of mine were published this month. “The Independent” published an article titled “Self Defense for Screenwriters” in their March 2002 issue. This article discusses how writers can avoid infringing the rights of those they mention or portray.
“Script” magazine has just published my article “Protecting Your Stories” which explains how writers can protect their story ideas from theft.

New Address
We have now moved to our new offices at 433 N. Camden Drive, Ste. 1010, Beverly Hills, CA 90210. The move went smoothly except that Pac Bell dropped the ball and our phones and fax were down for a day. We apologize if you tried to reach us and were unable to do so.

Friday, February 22, 2002

CHANGE OF ADDRESS

February 22, 2002

JOB OPENING
We have an immediate opening for a paralegal or secretary to join our law firm. Here is a description of the position:
Busy Beverly Hills entertainment law firm has opening for well-organized, responsible secretary/paralegal. Must type 60 wpm and have at least one year of experience. Requires a person who pays great attention to detail, and has excellent writing, grammar, communication and computer skills. E-mail resume and short writing sample to atty@marklitwak.com. No phone calls please.

CHANGE OF ADDRESS
After 8 years at 9595 Wilshire Boulevard we are moving. Effective February 28, 2002 we are relocating our offices and moving one block away to: 433 N. Camden Drive, Ste. 1010, Beverly Hills, CA 90210. Our telephone and fax numbers remain the same. Our zip code has changed slightly. Our E-mail address is: atty@marklitwak.com

Saturday, February 16, 2002

“The Accountant” nominated for Academy Award

February 16, 2002

“The Accountant” nominated for Academy Award

Congratulations to producer Lisa Blount and writer/director/star Ray McKinnon of Ginny Mule Pictures for their live action short “The Accountant” which has been nominated for an Oscar. Attorney Pete Wilke, who is our securities expert and is Of Counsel to this firm, created the Private Placement Memorandum and handled the production legal work for the picture. I saw the film at the Austin Film Festival this past fall and it was wonderful. It was also shown at Slamdance.

"The Accountant" is a "Farm Comedy." The story centers on a dubious main character who "advises" folks on methods they might use to save the family farm from going the way of too many such farms in America. The film was shot on location in the South on 35 mm. The film, about 40 minutes in length, might best be described as a "dark comedy" that gives the viewer a whole new appreciation (or first time appreciation as the case may be) for the "Accountant's" favorite canned beverage, PBR (Pabst Blue Ribbon beer).
The website for the film is www.ginnymule.com

Friday, February 08, 2002

MANAGER ATTEMPTING TO OPTION SCREENPLAY VIOLATES LABOR CODE

February 8, 2002

MANAGER ATTEMPTING TO OPTION SCREENPLAY VIOLATES LABOR CODE

Agents are licensed by the California Department of Labor. Managers are not. Agents can procure employment for artists, while managers cannot. It is not always clear, however, when a manager’s activities are considered procuring employment. One might think that selling a writer’s finished script is not procuring employment because the writing services have been completed. But a recent decision by the California Labor Commissioner has come to a different conclusion.

A manager attempted to sell two of his client’s screenplays. After the manager left the management business, the writer optioned the works the manager had previously submitted. The writer didn’t pay the manager a commission on these deals, as the writer was obliged to do under the terms of the management contract. The manager sued. The suit was stayed while the Labor Commissioner determined whether the manager had acted illegally because he was not a licensed talent agent.

The Labor Commissioner concluded that absent compelling evidence that no future services of the writer are contemplated, a manager shopping scripts is procuring employment and violating the labor code if he is not a licensed talent agent. The commissioner noted that screenwriters who sell spec screenplays usually want to be hired to do any rewrites needed, and often they are hired for that purpose. Indeed, in this case, the writer was employed to render additional writing services.

Because the manager acted in violation of the Talent Agencies Act, the management agreement was unlawful, and the manger is unable to enforce its provisions.

HOLLYWOOD PITCH MARKET(TM) - MARCH 2 & 3, 2002

Carlos DeAbreu, the founder of the Hollywood Film Festival, will be holding another seminar in Los Angeles: SELL YOUR IDEA/STORY/BOOK/SCRIPT OR FILM TO HOLLYWOOD BUYERS. The seminar will include two days of intensive Networking. Additional information can be found at: http://www.hollywoodfestival.com/writing/index3.html. I will be one of a number of speakers.

Saturday, January 12, 2002

BORROWING FILM CLIPS DEEMED A FAIR USE

January 12, 2002

BORROWING FILM CLIPS DEEMED A FAIR USE

Under U.S. law it is well recognized that a writer can quote from another writer’s copyrighted work. A reviewer, for example, can quote a short passage from a book that is being reviewed. The doctrine permitting this use is known as the fair use doctrine.
While copyright principles apply to filmmakers and other authors who create copyrighted works, it has never been clear to what extent film clips can be borrowed under the fair use doctrine. The practice of many cautious producers is to license clips, even of very limited duration. Two recent federal cases shed some light on the issue, and they may encourage producers to forgo licensing short clips.

The plaintiff (P) in both cases was a person who had acquired copyrights to many movies produced by American International Pictures (AIP). In the first case, the P complained about the use of clips from AIP movies in a documentary about AIP titled “It Conquered the World” produced by the American Movie Classics (AMC) cable channel. While the P had initially agreed to accept a $36,000 license fee for use of the excerpts for cable exhibition, the P apparently changed her mind and ultimately declined to sign the license agreement. Instead, the P sought an injunction which the court refused to issue.
The judge reasoned that AMC’s use of the clips would likely be considered a “Fair use.” The court stated, “Just as a parody” needs to mimic an original to make its point... and a biographer is permitted to quote his subject, so too a documentary about two film makers should be permitted to sparingly show clips of the subject’s works.
Here the filmmaker took five clips ranging from 10 seconds to 54 seconds, with an average length of 26 seconds.

The second suit filed by the P was a result of the Arts & Entertainment (A&E) series “Biography.” A& E used clips from the AIP documentary in a piece about actor Peter Graves titled “Peter Graves: Mission Accomplished.” The program used 20 seconds of footage from a trailer that had been used to promote the exhibition of “It Conquered the World.” This excerpt amounted to less than one percent of A&E’s 70 minute program. The court dismissed the P’s case on a motion for summary judgment.
These cases illustrate that filmmakers may be able, under the fair use doctrine, to take short excerpts from pre-existing films without licensing the footage. Of course, it never hurts to have a license, and there is no assurance that other courts will follow these decisions.
The cases are Hofheinz v. AMC Productions, Inc., 147 F. Supp. 2d 127, 2001 U.S. Dist. LEXIS 1591 (E.D.N.Y. 2001); and Hofheinz v. A&E Television Networks, 146 F. Supp. 2d 442, 2001 U.S. Dist. LEXIS 8616 (S.D.N.Y. 2001).