WRITING STYLE AND METHOD OF EXPRESSION ALONE ARE NOT COPYRIGHTABLE, COURTS RULE

December 29, 2004

In this newsletter:

WRITING STYLE AND METHOD OF EXPRESSION ALONE ARE NOT COPYRIGHTABLE, COURTS RULE

An author of two short plays about Marilyn Monroe sued CBS & Viacom for copyright infringement. The author, David Whitehead, claimed that the CBS television miniseries “Blonde”, infringed his exclusive rights of reproduction and adaptation. The Plaintiff based his infringement claim on a similar style between the two works and on individual elements of the Defendants work that he claimed were strikingly similar to elements of his plays. The Defendants claimed that there was no basis for the suit and asked that the case be thrown out of court.

Judge Richard Roberts of the U.S. District Court for the District of Columbia sided with CBS, granting Defendants’ motion for summary judgment. In granting summary judgment Judge Roberts acknowledged that questions of substantial similarity in copyright claims are often very close questions of fact, but that “summary judgment is proper if evidence of substantial similarity is merely colorable or not significantly probative.”

The court granted summary judgment on the basis that no reasonable jury could find that a substantial similarity in the “total concept and feel” of the two works existed. The plot of one the Plaintiff’s plays involved a posthumous visit from Marilyn Monroe in which she revisits her life’s events. The play is set to the music of Prince and it quickly makes “the audience. …aware that the play requires a suspension of literal belief for Monroe comes back from the dead,” the court wrote. The Defendants’ work on the other hand was “a drama without any of the fantastic qualities of plaintiff’s plays.”

The court quickly did away with Plaintiff’s claim based on similarities in style by stating, “a particular writing style or method of expression standing alone is not protected by the Copyright Act.” The court then proceeded to consider the individual elements that Plaintiff claimed were infringed by the Defendants work. Many of the supposed similarities were not protectable elements at all; rather they were facts of Marilyn Monroe’s life. These factual events were detailed in the various sources Plaintiff cited in the bibliography of his own works, an irony that did not go unnoticed by the court.

Whitehead v CBS/Viacom Inc., 315 F. Supp. 2d 1, 9 (D.D.C. 2004.)

PHIL NIBBELINK FEATURED IN ANIMATION MAGAZINE

Our client, animator Phil Nibbelink, and his project, “Romeo + Juliet, Sealed With A Kiss” are featured in “Skwigly,” a UK-based animation magazine available on the web. The article is available at www.biganimation.com/magazine/news/article.asp?articleid=412&zoneid=3

CONGRATULATIONS TO OUR SUNDANCE ENTRANTS

December 1, 2004

In this newsletter:

CONGRATULATIONS TO OUR SUNDANCE ENTRANTS

Congratulations to our clients whose films have been selected for the upcoming 2005 Sundance Film Festival: Director and Writer Craig Brewer, “Hustle & Flow” (Dramatic Competition) The film stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning.

Producers Eileen Craft and Art Klein, “Marilyn Hotchkiss Ballroom Dancing and Charm School” (World Premiere).

The film stars Robert Carlyle, Marisa Tomei, Mary Steenburgen, Sean Astin, Donnie Wahlberg, David Paymer, Camryn Manheim, Adam Arkin, Sonia Braga, Elden Henson, Ernie Hudson, Miguel Sandoval, Danny DeVito, and John Goodman.

Director and Writer Richard Shepard, “The Matador” (World Premiere) The film stars Pierce Brosnan, Dylan Baker, Hope Davis, Philip Baker Hall, and Greg Kinnear.

The Sundance Film Festival will be held January 20-30, 2005 in Park City, UT. For more details and a schedule of screenings, visit festival.sundance.org/2005/.

LEARN SELF-DEFENSE FROM MARK

November 19, 2004

In this newsletter:

LEARN SELF-DEFENSE FROM MARK Nov. 27–28, CALGARY, CANADA Southern Alberta Institute of Technology

Mark will present his weekend workshop, “Self Defense for Writers and Filmmakers.” During the discussion Mark will cover topics including · character portrayal – defamation, privacy and unfair competition · copyright – limits, duration and protection · contracts – negotiation, conclusion and remedies · financing and presale agreement · film distribution For more information and to reserve your seat, contact Sheila Connell by phone: 403-230-4617 ext. 242; by fax: 403-277-8930; or email: sheila@macphailharding.com

Preferential hotel accommodation rates are available for out of town delegates.

“BUSH’S BRAIN” TO AIR ON SUNDANCE CHANNEL

October 29, 2004

In this newsletter:

“BUSH’S BRAIN” TO AIR ON SUNDANCE CHANNEL

Congratulations to our clients, Joseph Mealey and Michael Shoob. Their documentary, “Bush’s Brain” is set to air on Nov. 1 on the Sundance Channel.

For airtimes, check the Sundance Channel schedule: www.sundancechannel.com/schedule/?schedDate=11/01/2004+06:00:00

For further information about the documentary, visit www.bushsbrain.com/

“DEADBEAT CLUB” WINS DEEP ELLUM FILM FESTIVAL

“The Deadbeat Club,” by client Israel Luna, was given the 2004 Deep Ellum Film Festival Audience Award for Best Feature Film at the festival’s awards ceremony on Thursday, Oct. 21.

“The Deadbeat Club,” based on a true story written and directed by Israel Luna, was shot in HD on location in West Texas. Luna’s film, which the Dallas Voice heralds as “a sharp film that bursts with color…” is an inspiring and amusing story about a 15-year-old high school misfit who overcomes a tragic loss by uniting an unlikely group of friends.

Congratulations Israel.

PRODUCTION TAX INCENTIVE BECOMES LAW

Congress has passed, and President Bush has signed, legislation that gives a tax break to movies made in the U.S. This is the first federal tax incentive law to stop runaway productions.

Under the new law, independent producers may write off a movie in a single year if it has a budget of $1 million-$15 million and 75% of that budget is spent in the United States. The limit goes up to $20 million if the movie is made in a low-income area of the U.S.

Under this legislation, the cost of producing qualifying films can be fully deducted from income for tax purposes in the year the expenditures occur. This contrasts with prior law which provides that the cost of producing a movie is recovered over several years.

This tax break is a tiny piece of a $136 billion corporate tax bill.

Additional information is posted on the DGA web site: www.dga.org/thedga/leg_rp_updte-102204.php3?§ion=thedga&oldsection=&oldpage=
MARK’S UPCOMING SPEAKING ENGAGEMENTS

Oct. 30, Los Angeles, CA CALIFORNIA LAWYERS FOR THE ARTS Film Business Seminar at Southwestern University School of Law. Call 310-998-5590 or email UserCLA@aol.com.

Nov. 5, New York, NY SWISSAMERICAN FILM FESTIVAL Email info@swisscinema.org for more information.

Nov. 6, New York, NY VOLUNTEER LAWYERS FOR THE ARTS NEW YORK. Mark will conduct his “Self-defense for Writers and Directors” seminar for New York Volunteer Lawyers for the Arts. He will explain how writers and directors can prevent problems from arising by properly securing underlying rights and by encouraging the other party to live up to agreements by adding performance milestones, default penalties and arbitration clauses. Participants will also learn what remedies are available to enforce their rights in the event of a dispute. Call 212-319-ARTS, ext. 10 to register or request more information.

Nov. 27–28, CALGARY, CANADA Southern Alberta Institute of Technology Mark will present his two-day workshop, “Self Defense for Writers and Filmmakers.” During the discussion Mark will cover topics including
· character portrayal – defamation, privacy and unfair competition
· copyright – limits, duration and protection · contracts – negotiation, conclusion and remedies
· financing and presale agreement
· film distribution

For more information and to reserve your seat, contact Sheila Connell by phone: 403- 230-4617 ext. 242; by fax: 403-277-8930; or email: sheila@macphailharding.com

Preferential hotel accommodation rates are available for out of town delegates.

iHOLLYWOOD FORUM PRESENTS “THE DIGITAL STUDIO” AT AFM

September 30, 2004
In this newsletter:

iHOLLYWOOD FORUM PRESENTS “THE DIGITAL STUDIO” AT AFM

On Nov. 2, iHollywood Forum will hold its annual industry summit and showcase about digital technology’s transformation of film and television production. Attendees will learn about digital rights management and legal implications of digitization and distribution of media and entertainment.

The forum also offers an opportunity to network with potential clients, including top Hollywood dealmakers, producers, directors, editors, production companies, writers, content creators, investors and studio executives. In addition, attendees can earn MCLE credit. Mark will moderate the panel, “Distribution and Financing for Digital Films: Challenges and Opportunities.”

This year’s iHollywood Forum is conducted in partnership with the American Film Market. The conference will be held at Laemmle Theatre, 1332 2nd Street, Santa Monica, CA from 9 a.m. – 6 p.m.

Tickets are $125 for a Basic ticket; $195 for a Deluxe ticket, which includes networking lunch and cocktail party). Register using Discount Code “DS25” to save $25.

MARK’S UPCOMING SPEAKING ENGAGEMENTS Oct. 2-3, UCLA

Mark will be teaching a UCLA Extension course on Financing Independent Features and Negotiating a Distribution Agreement, Oct. 2-3. During the seminar, participants will examine how independent films are financed and distributed. Seminar 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 filmmakers can protect themselves by watering down warranties, getting added to the E&O policy, using the lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q6736U.

Oct. 30, Los Angeles, CA CALIFORNIA LAWYERS FOR THE ARTS Film Business Seminar at Southwestern University School of Law. Call 310-998-5590 or email UserCLA@aol.com.

Nov. 27–28, CALGARY, CANADA Southern Alberta Institute of Technology Mark will present his two-day workshop, “Self Defense for Writers and Filmmakers.” During the discussion Mark will cover topics including
· character portrayal – defamation, privacy and unfair competition
· copyright – limits, duration and protection
· contracts – negotiation, conclusion and remedies
· financing and presale agreement
· film distribution

For more information and to reserve your seat, contact Sheila Connell by phone: 403- 230-4617 ext. 242; by fax: 403-277-8930; or email: sheila@macphailharding.com. Preferential hotel accommodation rates are available for out of town delegates.

HOLLYWOOD FILM CONFERENCE

This year Mark will be chairing the Hollywood Film Conference, part of the Hollywood Film Festival, which will be held from Friday, October 15 to Sunday, October 17 at the Arclight Cinemas 6360 Sunset Blvd., in Hollywood. The conference will feature top industry speakers who will discuss financing and distribution of films.

In the past seven years over 600 industry professionals have participated as panelists in the conference, including executives from Columbia/TriStar, Fox Searchlight, MGM Studios, Miramax, NBC, New Line, Paramount Classics, Samuel Goldwyn Co., Seventh Art Releasing, Strand Releasing, Twentieth Century Fox, Showtime Networks, Walt Disney, and agents from CAA, ICM, William Morris and Writers & Artists among others. Additional info can be found at: www.hollywoodawards.com/conferences_film.html

SUICIDE BLONDE WINS JUDGEMENT AGAINST RGH/LIONS SHARE PICTURES

September 16, 2004

In this newsletter:

SUICIDE BLONDE WINS JUDGEMENT AGAINST RGH/LIONS SHARE PICTURES

On September 10, 2004, we were successful in having Judge James A Bascue of the Los Angeles Superior Court confirm an Arbitration Award we had previously won against RGH/Lions Share Pictures.

Our client, Suicide Blonde Productions, Inc., initiated arbitration against RGH/Lions Share Pictures for failure to live up to its distribution agreement obligations for the motion picture, “Suicide Blonde.”

In confirming the award, the Court granted Suicide Blonde $254,297.26 in damages, an amount that included $185,750 in lost revenue. Furthermore, the Court permanently enjoined RGH/Lions Share from advertising, selling, distributing, manufacturing, or shipping the picture, ordered RGH/Lions share to return all materials related to the picture, and required RGH/Lions Share to pay all reasonable attorneys fees and costs in securing the confirmation of the Arbitration Award.
MARK’S UPCOMING SPEAKING ENGAGEMENTS Oct. 2-3, UCLA

Mark will be teaching a UCLA Extension course on Financing Independent Features and Negotiating a Distribution Agreement, Oct. 2-3. During the seminar, participants will examine how independent films are financed and distributed. Seminar 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 filmmakers can protect themselves by watering down warranties, getting added to the E&O policy, using the lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q6736U.

Oct. 30, Los Angeles, CA California Lawyers for the Arts Film Business Seminar at Southwestern University School of Law. Call 310-998-5590 or email UserCLA@aol.com.

HOLLYWOOD FILM CONFERENCE SPECIAL OFFER

This year Mark will be chairing the Hollywood Film Conference, part of the Hollywood Film Festival, which will be held from Friday, October 15 to Sunday, October 17 at the Arclight Cinemas 6360 Sunset Blvd., in Hollywood. The conference will feature top industry speakers who will discuss financing and distribution of films.

In the past seven years over 600 industry professionals have participated as panelists in the conference, including executives from Columbia/TriStar, Fox Searchlight, MGM Studios, Miramax, NBC, New Line, Paramount Classics, Samuel Goldwyn Co., Seventh Art Releasing, Strand Releasing, Twentieth Century Fox, Showtime Networks, Walt Disney, and agents from CAA, ICM, William Morris and Writers & Artists among others. We have a special Offer for subscribers of this newsletter: more than 50% off the regular price of $495.00. Just mention that you heard about the conference from this newsletter and you can purchase admittance to the 3-day conference for only $195.00. Additional info at: www.hollywoodawards.com/conferences_film.html

FINANCING INDEPENDENT FILMS by Mark Litwak

Independent films can be financed in a variety of ways. In addition to a filmmaker using his own funds to make a movie, the most common methods are: 1) loans 2) investor financing 3) borrowing against pre-sales (a loan against distribution contracts) 4) distributor-supplied financing.

LOANS

Loans can be secured or unsecured. A secured loan is supported or backed by security or collateral. When one takes out a car or home loan, the loan is secured by that property. If the person who borrows money fails to repay the loan, the creditor may take legal action to have the collateral sold and the proceeds applied to pay off the debt. An unsecured loan has no particular property backing it. Credit card debt and loans from family or friends may be unsecured. If a debtor defaults on an unsecured loan, the creditor can sue for repayment and force the sale of the debtor’s assets to repay the loan. If the debtor has many debts, however, the sale of his property may not be sufficient to satisfy all creditors. In such a case, creditors may end up receiving only a small portion of the money owed them.

A secured creditor is in a stronger position to receive repayment. In the event of a default, designated property (the secured property) will be sold and all the proceeds will be applied first to repay the secured creditor’s debt. Unsecured creditors will share in whatever is left, if anything.

The advantage of a loan, from a legal point of view, is that the transaction can often be structured in a fairly simple and inexpensive manner. A short promissory note can be used and the transaction often is not subject to the complex security laws that govern many investments. Thus, there is usually no need to prepare a private placement memorandum (PPM). Keep in mind that if the agreement between the parties is labeled a “loan,” but in reality it is an investment, the courts will likely view the transaction as an investment. Giving a creditor a “piece of the back-end,” or otherwise giving the creditor equity in the project, makes the transaction look like an investment. Read the full article at: www.marklitwak.com/articles/general/financing.html

MARK TO TEACH AT UCLA OCT. 2-3

September 3, 2004

In this newsletter:

MARK TO TEACH AT UCLA OCT. 2-3

Mark will be teaching a UCLA Extension course on Financing Independent Features and Negotiating a Distribution Agreement, Oct. 2-3. During the seminar, students will examine how independent films are financed and distributed. Seminar 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 the lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q6736U.

CONGRATULATIONS TO OUR CLIENTS

This Friday marks the Los Angeles theatrical opening of “Bush’s Brain,” an explosive new documentary film that introduces the country to Karl Rove, the man known as “Bush’s Brain,” the most powerful political figure America has never heard of.

The film chronicles the history of the Karl Rove-George Bush relationship and reveals Rove to be the Wizard of Oz behind the curtain, the man who is pulling the strings in the current White House.

“Bush’s Brain” is a primer on Rove’s political shenanigans for the past two decades. After seeing it, you’ll have a far deeper understanding of how the White House operates and how they will approach the campaign in the coming months, leading up to the November 2 election.

The film opens this Friday, September 3, at the Laemmle Sunset 5 in West Hollywood, the Laemmle Town Center in Encino and the Laemmle One Colorado in Pasadena. Visit the official Web site at: www.bushsbrain.net

HOLLYWOOD FILM CONFERENCE SPECIAL OFFER

This year Mark will be chairing the Hollywood Film Conference, part of the Hollywood Film Festival, which will be held from Friday, October 15 to Sunday October 17th at the Arclight Cinemas 6360 Sunset Blvd., in Hollywood. The conference will feature top industry speakers who will discuss financing and distribution of films.

In the past seven years over 600 industry professionals have participated as panelists in the conference, including executives from Columbia/TriStar, Fox Searchlight, MGM Studios, Miramax, NBC, New Line, Paramount Classics, Samuel Goldwyn Co., Seventh Art Releasing, Strand Releasing, Twentieth Century Fox, Showtime Networks, Walt Disney, and agents from CAA, ICM, William Morris and Writers & Artists among others.

We have a special Offer for subscribers of this newsletter: more than 50% off the regular price of $495.00. Just mention that you heard about the conference from this newsletter and you can purchase admittance to the 3-day conference for only $195.00. Additional info at: www.hollywoodawards.com/conferences_film.html

BUSH’S BRAIN PREMIERES

August 24, 2004

In this newsletter:

HOLLYWOOD FILM CONFERENCE SPECIAL OFFER

This year I will be chairing the Hollywood Film Conference, part of the Hollywood Film Festival, which will be held from Friday, October 15 to Sunday October 17th at the Arclight Cinemas 6360 Sunset Blvd., in Hollywood. The conference will feature top industry speakers who will discuss financing and distribution of films.

In the past seven years over 600 industry professionals have participated as panelists in the conference, including executives from Columbia/TriStar, Fox Searchlight, MGM Studios, Miramax, NBC, New Line, Paramount Classics, Samuel Goldwyn Co., Seventh Art Releasing, Strand Releasing, Twentieth Century Fox, Showtime Networks, Walt Disney, and agents from CAA, ICM, William Morris and Writers & Artists among others.

We have a special Offer for subscribers of this newsletter: more than 50% off the regular price of $495.00. Just mention that you heard about the conference from this newsletter and you can purchase admittance to the 3-day conference for only $195.00.
Additional info at: www.hollywoodawards.com/conferences_film.html

BUSH’S BRAIN PREMIERES

Congratulations to our clients’ filmmakers Joseph Mealey and Michael Paradies Shoob whose film, Bush’s Brain, premiered at a special screening in Los Angeles at the American Cinematheque on August 12. The film is about Karl Rove, the brains behind the success of George Bush, who has engaged in questionable tactics in the pursuit of electoral victory.

The documentary opens in theatres across the nation in late August and early September. In Los Angeles it will open in four theaters including the Laemmle Sunset 5 on September 3. It opens in New York on August 27, three days before the start of the Republican convention. This is likely to be a controversial film, a behind-the-scenes look at the political guru that has guided George Bush in his career.

PROTECTING YOUR STORIES: Borrowed Elements or Stolen Ideas?

July 8, 2004

In this newsletter:

MARK DISCUSSES DISTRIBUTION DEALS AT VSDA, JULY 15

Mark will be speaking on a panel at the Venetian Hotel in Las Vegas at 1:30PM, July 15. The panel, entitled “Distribution Details,” is part of “Had to Be Made Filmmaker Program” at the annual VSDA conference. Mark will discuss what filmmakers need to know to prepare themselves for distribution. He will cover details of a distribution deal and the items needed to make the deal go smoothly, including E&O insurance, chain of title, releases and copyrights, film materials and components, selecting a distributor, and understanding distribution revenue. To attend, register online or call toll FREE: 800-545-1773. VSDA registration info is available at show.vsdahomeentertainment.com/videoshow/V40/index.cvn?id=10019 .

PROTECTING YOUR STORIES: Borrowed Elements or Stolen Ideas?
by Mark Litwak

When writers submit their work, they become vulnerable to theft. As an entertainment attorney, I often hear from writers who believe that they have been ripped off. Usually the writer is a novice without representation who submits a script to an established production company. The company passes on the script or does not acknowledge its receipt. Months or years go by and one day the writer stumbles upon a movie that closely resembles his story, and the credits show a recipient of the writer’s script made it. The writer is convinced that his work was stolen and his copyright infringed. This may or may not be the case.

Many writers do not have a solid understanding of the nature and extent of what copyright law protects, and they may not know that they can also protect their interests under the principles of contract law. Let’s begin with a discussion of copyright law.

Copyright does not protect story ideas, concepts, or themes. So ten authors can write different stories about a doomed romance between lovers from dissimilar backgrounds, resulting in Romeo and Juliet, West Side Story, and other variations. Also, facts and historical incidents are not copyrightable, so numerous authors could each write a biography on George Washington based on the same facts and incidents.

What copyright law does protect is the “expression of the author,” the particular manner in which the writer tells the story, his approach to the material, his voice. In other words, what is protected is the embellishment on the idea, not the idea itself.

Consequently, others are free to borrow uncopyrightable elements from your work. But if they borrow your expression, then they have crossed the line. Granted it may be difficult to tell that an idea has been sufficiently embellished upon rendering the resulting work an expression of an author and protected, but generally the more detailed the story, the greater the protection you will receive.

So how can a writer protect his ideas? By contract. While ideas are not protected by copyright, they are a form of intellectual property, and the recipient of an idea can agree to pay the provider for it. Such an agreement can be an enforceable contract.

In order to understand how a writer’s idea can be protected by contract, let us first review some legal principles. There are different kinds of contracts. Some are written, others are oral. Contrary to popular belief, oral contracts may be valid. However, it is usually advantageous to have a written agreement, if only because it is evidence as to what the parties agreed.

The best way for a writer to protect himself would be to have the recipient of a story idea sign a written agreement. However, it may be awkward for a writer to begin a meeting with such a request. Some producers might be offended or worry about liability. They might want to consult their lawyer. Since writers often experience difficulty just getting in the door to see a powerful producer, asking for a written agreement may not be practicable.

A less-threatening approach would be to enter into an oral agreement with the producer. The writer begins the meeting by simply saying: “Before I tell you my idea, I want to make sure you understand that I am telling you this idea with the understanding that if you decide to use it, I expect to receive reasonable compensation.” The producer most likely will nod her head yes or say, “Of course,” in which case you have a deal. If the producer indicates that she does not agree to these terms, leave without presenting the story.

Since a contract made under these circumstances isn’t in writing, there might be a problem proving its existence and terms. That is why it’s advisable to have a witness or some documentation. You could bring a co-writer, agent, or associate along to the meeting. After the meeting you might send a letter to the producer reiterating your understanding. The letter should be cordial and non-threatening. You could write: “It was really a pleasure meeting with you to discuss my story about singing cat. As we agreed, if you decide to exploit this material, I will receive reasonable compensation.” If the terms set forth in your letter are not disavowed by the recipient, the letter could be considered your agreement. Since the letter has not been signed by the producer, her agreement is implied from the fact that she didn’t object. Of course, if the producer confirms these terms in writing, that would give you even better evidence.

But what if the producer listening to your pitch doesn’t steal your story but repeats it to another producer who uses it? You can protect yourself by also stating: “I am telling you my idea with the understanding that you will keep it confidential and will not tell it to anyone else without my permission.” If the producer nods her head okay or says yes, you have a deal, and you can sue if she breaches her promise.

Hawaii has some very impressive and generous tax incentives

June 16, 2004

In this newsletter:

HAWAII EXTENDS ACT 221

Hawaii has some very impressive and generous tax incentives. Considering all the public criticism of the Act, it was somewhat of a surprise to see state lawmakers pass a bill to extend the program through 2010. While the legislation has not yet been signed by Governor Linda Lingle, her signature is expected soon. The provision that the law be “liberally” construed was deleted, and the granting of credits was limited in some ways. Investors will no longer be allowed to recoup large multiples of their investments in the form of state tax credits. As of July 1, 2004, “multiples” of 2.0 and above will be required to submit evidence substantiating economic substance and business purpose of the transaction. Deals where an investor receives up to one-and-a-half times the amount of the initial investment in the form of tax credits over the life of the credit would be presumed acceptable. The Department of Taxation will have the right to investigate deals where an investor receives between 1.5 and two times the amount of the initial investment in tax credits. This means a Hawaiian investor that invests $100,000 in a film can be assured to receive a return of $150,000 in tax credits over five years. What will need to shown to earn a higher multiple is not entirely clear until the Department of Tax issue guidelines regarding the manner in which economic substance and business purpose may be substantiated. More info is available at www.nasvf.org/web/allpress.nsf/pages/7171

“TO END ALL WARS” TO BE RELEASED ON DVD

June 8, 2004

In this newsletter:

MARK TO TEACH “SELF-DEFENSE” AT UCLA JUNE 12-13

This weekend, Mark will be at UCLA teaching “Self-Defense for Independent Filmmakers: Protecting Your Legal Rights” In this intensive weekend seminar, filmmakers learn how to anticipate problems before they arise in their negotiations with production and distribution companies and create incentives to encourage the companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an unresolvable dispute, participants learn what remedies are available to enforce their rights. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q3515U.

“TO END ALL WARS” TO BE RELEASED ON DVD

Congratulations to our clients David Cunningham and Jack Hafer. The DVD edition of their film, “To End All Wars,” starring Robert Carlyle, Kiefer Sutherland, and Ciarán McMenamin, hits the streets June 15. It’s distributed by Fox Home Entertainment and is available for pre-order on Amazon.com.

MARK’S NEW COLUMN ON ENTERTAINMENT LAW

Mark has begun writing a monthly column on entertainment legal issues. The first article for the column was “Protecting Your Stories: Borrowed Elements or Stolen Ideas?”; the second was “How Distributors Evaluate Films.” Several filmmaker organizations will be carrying Mark’s column in their publications and newsletters. These groups and publications include the Film Arts Foundation’s “Release Print,” “Focus In,” “Hawaii Film & Video” magazine, Imagine, NALIP, New York Volunteer Lawyers for the Arts, and Washington Lawyers for the Arts.

FAQs AND NEW ARTICLES NOW AVAILABLE ON MARKLITWAK.COM

May 18, 2004
In this newsletter:

FAQs AND NEW ARTICLES NOW AVAILABLE ON MARKLITWAK.COM

Our website, marklitwak.com has been expanded with a large, new section devoted to frequently asked questions. You’ll find them by clicking on the FAQ link in the menu bar above. Three recent articles written by Mark have also been posted: "Soft Money in Hard Times" (published in Moviemaker), "Runaway Home" (published in Los Angeles Lawyer) and "Protecting Your Stories" (published in Focus In). You’ll find these PDF articles on Mark’s articles page (click on the Articles link in the menu bar).

MARK TO TEACH SELF-DEFENSE IN JUNE & NOVEMBER DALLAS

On June 4, Mark will be at the Southwest Film, Arts & Television Conference in Dallas to give a talk on intellectual rights and negotiating distribution deals. For more information go to www.swaftconvention.com/filmmakers.asp.

LOS ANGELES

On June 12-13, Mark will be at UCLA teaching "Self-Defense for Independent Filmmakers: Protecting Your Legal Rights" In this intensive weekend seminar, filmmakers learn how to anticipate problems before they arise in their negotiations with production and distribution companies and create incentives to encourage the companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an unresolvable dispute, participants learn what remedies are available to enforce their rights. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q3515U.

NEW YORK CITY

On Nov. 6, Mark will conduct a "Self-defense for Writers and Directors" seminar for New York Volunteer Lawyers for the Arts. He will explain how writers and directors can prevent problems from arising by properly securing underlying rights and by encouraging the other party to live up to agreements by adding performance milestones, default penalties and arbitration clauses. Participants will also learn what remedies are available to enforce their rights in the event of a dispute. For more information or to register, please call Alexei Auld at 212-319-ARTS (2787) ext. 12.

WHAM-O GETS SLAMMED, JUDGE DENIES TRO AGAINST PARAMOUNT

May 6, 2004

In this newsletter:

PRODUCTION ARTICLE ON INCENTIVES IN MAY ISSUE OF LOS ANGELES LAWYER

Mark's article on international film production incentives is running in the May 2004 edition of "Los Angeles Lawyer" magazine. A PDF version of the magazine is available online at www.lacba.org/showpage.cfm?pageid=40.

CONGRATULATIONS TO OUR CLIENTS

Kudos to our clients Joseph Mealey and Michael Shoob. Their film, "Bush's Brain" is an official selection of the TriBeCa Film Festival and will be screening at 7:30PM on Thursday, May 6, at the Tribeca Performing Arts Center 1. Tickets are $10 and are available at the door only. For more information about the Tribeca Film Festival, visit www.tribecafilmfestival.org .

Congratulations to our client Eileen Craft. She is co-producing the film "Mrs. Hotchkiss' Ballroom Dancing and Charm School," which began production this week. The film stars Robert Carlyle, Marisa Tomei, John Goodman, Mary Steenburgen, Sean Astin, David Paymer, Donnie Wahlberg, Camryn Manheim, Ernie Hudson, and Danny DeVito.

WHAM-O GETS SLAMMED, JUDGE DENIES TRO AGAINST PARAMOUNT

Last year's comedy release "Dickie Roberts: Former Child Star" memorably featured a "Slip 'N Slide" in its advertisements and the film. The product's manufacturer, Wham-O Inc., didn't find it so funny and consequently sued the film's distributor, Paramount Pictures, for trademark infringement and dilution. In addition, Wham-O requested a temporary restraining order (TRO). Wham-O had not paid for product placement; Paramount had not contacted Wham-O for permission to include the product in its film.

In a succinct decision that will likely be cited in future trademark infringement and dilution cases, Federal District Judge Marilyn Patel denied Wham-O's requests and rejected its claims.

Wham-O alleged that the "Slip 'N Slide" scene showed its product being misused in a painful and dangerous manner, and therefore diluted its trademark. Furthermore, featuring the product in the film blurred the distinctiveness of its marks and created consumer confusion.

In denying Wham-O's claims, Judge Patel determined that it was "obvious and unmistakable" that the slide was being misused, and the characters even go so far as to say that the slide is being misused. The judge further noted that "it is not unusual for movie producers to use … products and props … to cultivate interest in a film. … Nothing … suggests that [Paramount] used [Wham-O's] marks to imply that [Wham-O] placed its imprimatur on the film; nowhere in [Paramount's] publicity efforts is [Wham-O's] mark unreasonably displayed or abused."

Wham-O, Inc. v. Paramount Pictures Corp., 286 F.Supp.2d 1254, 2003 U.S.Dist.LEXIS 21762 (N.D.Cal. 2003)

Frequently Asked Questions: Writing

Answers from Mark Litwak, Attorney At Law

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.

Question: I am currently working with another writer. He has a completed script. I am doing some rewrites and I hope to shop it around. My questions are: Do I need to option this script and how? Do I get writer's credit? And what would my steps be in registering this work?

Answer: You should have a written agreement regarding your collaboration. If you want an option to purchase rights to the work, you should have a written option agreement. Otherwise, you risk losing rights to the script. After spending a great deal of effort fixing this script, you do not want to find yourself in a position where the author refuses to acknowledge an agreement you did not put into writing.

The work can be registered with the Copyright Office at the Library of Congress (http://www.copyright.gov). The parties determine credit, but if the script is subject to the Writers Guild agreement, the Guild will determine how writing credit is allocated in the event of a dispute.

Question: I want to write a screenplay about the death of a friend that happened 28 years ago. Although I'm changing the names and dates, the way the death occurred will undoubtedly raise a red flag with the family if they are living. Do I need permission from the family of the deceased?

Answer: In regard to writing about people who are dead, you don't have to worry about obtaining the family's permission, since defamation and invasion of privacy rights are considered personal and do not descend to the estate of the deceased. Other secondary characters, however, might have a claim for invasion of privacy if what you reveal is considered offensive, or they may claim defamation if they themselves are shown in a derogatory light and the information is not true. By changing the names and the dates, you make it more difficult for the public to identify the people involved. You may also want to add a disclaimer that none of the characters are real individuals. You may also seek the cooperation of the family so that they will share with you inside information and materials that are not in the public domain, such as diaries, which might be helpful in writing the film.

Question: I had an offer for one of my screenplays — $5,000 U.S dollars. Should I take it or ask for Writers Guild minimum?

Answer: Assuming that you are not a member of the Writers Guild, whether you should accept the offer depends on your stature in the industry, how likely it is that there is another buyer who will pay more, and the identity of the buyer. If the buyer is a major studio or production company, it should pay you at least WGA scale. If you are a beginning screenwriter, and this is a smaller, reputable company, you may want to accept its offer, although it would be best if the payment were for an option on the property rather than for buying outright the motion picture rights to that property. Also, try to negotiate a reversion clause in the event your screenplay doesn't get made.

Question: I am about to enter into a contract to write a script on spec for some would-be producers—a dangerous venture, I know. Do you have any words of wisdom on how to maximize my opportunity to sell a script while minimizing the likelihood of being taken advantage of?

Answer: If you are not being paid for the script, you should retain the copyright to it. Make sure it is not a work-for-hire vesting the copyright in the producers. If they don't like the work, at least you will own it, and you can try to set it up elsewhere.

Question: I am in negotiation with a production company to write a script for hire. They won't have money to pay me until (and if) a film is actually made. What should I be aware of in making this deal?

Answer: You are working on spec. You should write the script on your own without any obligation to them, because after all they aren't making any commitment to you. Thus, if you choose to proceed, you should retain all rights to your script and be free to take it elsewhere later.

Question: I'm a first-time screenwriter currently negotiating an Option/Acquisition agreement with a small independent film group. I have an entertainment attorney working with me. I have two questions, really. My questions: (1) Is it unusual for a first-time writer to receive any percentage points? (2) Can you direct me to a group that might help me contact experienced screenwriters so that I might benefit from their advice?

Answer: It is not unusual for a first-time writer to receive a percentage of net profits. Typically, they receive 5% of 100% of the net profits if they receive sole screen writing credits, and 2.5% of 100% if they receive shared credit. As far as a writers' group, you may want to contact the Society of Journalists and Writers, or the Writers Guild, or the Author's Guild.

Question: I'm in a pickle. I'm writing a show with two college buddies, with only a verbal partnership agreement. MTV wants to buy, but we're hung up over credits. Do you know what the difference is between "Created by" and "Story by"? Does one carry more clout in the industry? Does one indicate ownership? One member of our group has an agent who wants the other two partners who are neophytes kept hidden.

Answer: You should contact the Writers Guild and obtain from them information about the differences in credit. "Created by" is a television credit; "Story by" is used for films. For projects subject to Writers Guild jurisdiction, the guild determines who is entitled to credit. The matter is not open to negotiation. If there is a dispute concerning who is entitled to credit, the Writers Guild will arbitrate and make the final determination.

Question: Release forms seem one-sided, completely in favor of production companies. What protection or recourse can a writer have when he or she signs a release form for the sake of having his or her script considered? Sure, a production company may have something in the works similar to the writer's material, but it seems "release forms" also can open the door for the outright theft of intellectual property without fear of any writer "claims" being made. Once a writer signs a release form, what specific steps can the writer take if a company produces something similar to or even identical to the writer's material?

Answer: Release forms may make it more difficult for you to sue someone for ripping you off, but such forms may not provide a complete shield. California does not, as a matter of public policy, allow release forms to protect people from their own intentional wrongdoing. Consequently, if the person who rips you off does so intentionally, they may be liable regardless of the terms of the release. If, on the other hand, the other party merely is negligent in infringing your work, the release may prevent you from prevailing in an action against the other party.

Question: Can you give us some parameters of what options on scripts are going for these days? What are the percentages? What is standard? Is it based on a percentage of the (proposed or actual) production budget or what? If you would, please give us as much information about an option deal as you can.

Answer: Most scripts that are written are never optioned and they are not produced. So it's hard to generalize. Obviously, the most desirable scripts when they are optioned or bought outright by a major studio, the price can be more than a million dollars. Options typically are 10% of the purchase price. For beginning writers who have never sold a script before or had anything produced, scripts may be optioned for nominal consideration, and the purchase price may be as low as a few thousand dollars. If you agree to option your property, especially for modest compensation, you should ask for a bonus when the movie gets made and a reversion clause that would revert all rights to you in the event the script does not go into production within five years.

Question: I am a freelance screenwriter. I have written two film adaptations based on novels (which I wrote, initially, as an exercise) and am now interested in marketing. I have tracked the film rights to their source and am planning on initiating negotiations for option(s)—having used your work as a reference. At this point I have not sought an agent to help me obtain these rights, nor assist in marketing the work when (more to the point, if) I can obtain the rights. My questions are: I would like to use these works—in addition to my original work—to seek representation. Am I committing any illegal or unethical violations by showing these works to an agent, having not yet gained an option? (Naturally, I would make that point clear, and would not allow the agent to market the work without an option.) And, second, does the agent commit any wrongdoing reading the work? Thank you for your time (and for your previous works, which I have found to be priceless.)

Answer: Creating a derivative work (i.e. a screenplay based on someone else's novel) without permission is usually copyright infringement. Sometimes a fair use, such as a parody, might be protected. From a practical point of view, unless you exploit the screenplay by making a movie based on it, it's unlikely that the novelist would bother to file a lawsuit against you. Moreover, if the screenplay were not produced, it the copyright holder's actual damages would be modest, but if the work was registered in a timely manner, then they could obtain statutory damages and reimbursement of attorney fees.

Question: I have an independent producer interested in my script. I am a first time scriptwriter. They plan to shoot on a million dollar budget. What kind of money should I be looking for? Do I ask for up front money as well as a back end deal? What would you say would be a good deal? Thank you.

Answer: The amount of payment that you should receive is dependent upon your stature and track record and the resources of the independent producer. If this is a very low-budget film, funded with independent financing, I have seen scripts acquired for as little as $5,000 up front. For a million dollar film, a fee of $35,000–$50,000 seems reasonable. If you are going to give your script to someone for a very minimal payment, then it seems to me you should be rewarded handsomely on the back end with a significant deferment and/or participation in the profits. As a general rule, 5% of a production budget goes toward acquisition of underlying life story rights and/or any literary properties and payment for all screenplays and re-writes. However, this 5% figure is somewhat inaccurate for very low-budget pictures or very high-budget pictures.

Question: What are the legalities of using actual business names or organizational names in a Screenplay? For Example: McDonald's, Jackson Memorial Hospital, Outback Steakhouse, etc. I have never known if I can use actual names or if I have to make up the names of hospitals, restaurants, etc.

Answer: Generally speaking, you can use actual names of people, hospitals or restaurants without their permission. However, if you defame these entities by portraying them in a derogatory light, you may be liable for defamation. Likewise, if you invade the privacy of people by revealing intimate details of their lives, you may be liable. If you use these names in any way to indicate that the film was produced by one of these companies, you potentially can be liable for unfair competition and/or trademark infringement. So the answer to your question is that liability is determined by how you use the names. Under the First Amendment, you are permitted to mention other people in books and films without their permission. Before you go into production, it would be a good idea to have your script reviewed by an experienced entertainment attorney to point out any potential pitfalls. Of course, it never hurts to obtain a release. And to play it safe, you may want to have your prop person come up with a pseudo product so there is no chance of liability.

Question: As a general rule of thumb, how much would a revision of an earlier registered (WGA) and copyright registered (LOC) version need to change until it would be a good idea to re-register the new version. If I changed a character name as an example, but nothing in the scene or anywhere else in the screenplay, would I need to re-register it with WGA and LOC? What's the general guideline?

Answer: Depends on how paranoid you are. I would not re-register a script simply because one character's name was changed. However, if you make significant changes to a script, you may want to re-register it because the new material would not be protected under the previous registration. Registration with the Writers Guild simply creates evidence in the case of a plagiarism dispute, evidence that you created the work first. Registration with the Library of Congress creates a public record of your claim of authorship and also may entitle you to certain other benefits such as reimbursement of attorney fees and statutory damages (if the registration was made in a timely manner).

Question: I'm a NYC screenwriter who has written a low-budget script. My friend, an LA film editor for the past 20 years, with several A-movie credits, but who is looking to move to producing/directing, took the script to a producer with several feature credits. The Producer says she can put together a $3 million budget if we bring her a package (a director or lead actor or both) that she can sell. We are currently working on this, with most of the work being done by my L.A.-based editor friend. My questions are: (1) How can we attach my editor friend to the script so he does not get left behind? Should he option the script for a token amount? Should we set up some kind of limited partnership? (2) In a $3 million budget, how much money could I, an unknown, unproduced screenwriter, expect to make? (3) Given that I don't think I'm going to make enough $$ to change my life, how can I remain attached to the production in a meaningful way? Am I looking for a production credit?

Answer: You can attach your writer friend by simply refusing to give an option on the script to a producer unless your editor friend is attached as a co-producer, or the buyer agrees to whatever other terms you insist upon. You can also let your editor friend option the script from you, in which case he would have control over the project, not you. As for how much compensation you can expect to receive, as a rough rule of thumb, no more than 5% of the budget for a film should go to acquisition of story rights, including any life story rights needed, any underlying literary material such as a book, and fees for all the writers and re-writers. This 5% guideline is not accurate for low-budget features, or very expensive features. I would ask for a minimum of WGA scale against 5% of the budget. Be prepared to go down to 3% of the budget. From the point of view of an unproduced screenwriter, the most important benefit will be having credit in a finished film. This will give you credibility and enable you to get a greater fee next time.

Question: I am trying to option a book, I have been a casting director for many years and I know how to get quotes easily on actors and to make offers on names, but in this new area I feel like a student. I know that I need to make an option based on some info as to what the authors of other books may have sold for and even other comparable books may have been optioned for. Where can I get that info? If it were an actor I can call the casting director on his last few films, but this doesn't seem that clear cut.

Answer: As a general rule of thumb, options are often 10% of the purchase price. However, options are negotiable and it is not uncommon today for authors with little clout to grant options for a nominal amount of money in the hope a producer will succeed in turning their book into a film. The purchase price will depend greatly on the demand for the work. A John Grisham novel will go for millions, and the author may refuse to option it at all, insisting on an outright sale. Probably the best source to obtain that type of information you want is to contact an experienced literary agent who actively buys and sells book rights.

Question: My partners and I recently came up with an idea for a TV series that we would like to develop. Part of the angle of the show (and potential problem) is that we would like each episode to be written by non-union, non-professional writers. We would basically be soliciting scripts from the average American (a new writer for every episode). Our writing staff would then re-work the scripts if necessary to prepare them for shooting. Before we start pitching this idea to anyone, we need to know if it's legal to use non-union writers for TV.

Answer: You are under no obligation to become a signatory to the Writers Guild, or any other union. Keep in mind, however, that most experienced and talented screenwriters are members of the Writer's Guild. The work product by non-professional writers may not be very good.

Question: What type of permissions would I need for a book I've written based on the Andy Griffith Show? It's of the "life's lessons from the Andy Griffith Show" kinds of books and does use quotes from the show. I've seen many other Andy books that don't seem to have gotten permission or the blessings of Mayberry Enterprises or Viacom.

Answer: If you extensively quote the Andy Griffith Show, you may be infringing its copyright. If, on the other hand, you are not quoting the material, but simply commenting or critiquing the Andy Griffith Show, then your work will probably be protected as a fair use. It is really a matter of degree. Try to limit your quotes to those instances where it is absolutely necessary. Make sure the quotes comprise a relatively small portion of your overall work.

Question: I have been in touch with a novelist who was interested in selling his action-thriller novel to a studio. I proposed to turn it into a screenplay first to try and get it sold as a "spec," which I thought would be more profitable for both of us. The author owns the rights but my screenplay will only be based on the novel. He has agreed to let me adapt it.

What do you think is the best course of action to make it fair for both of us and avoid any possible future disagreements? I thought that we could share the money equally from any sale, but am I too unprotected or is he taking an unnecessary risk?

Answer: Since the novelist owns the underlying rights, you cannot prepare a derivative work such as a script, without his permission. Consequently, it is very important for you to make sure you have an agreement ahead of time. A particularly difficult issue you may need to resolve will be what happens if a potential purchaser likes the novel but does not want to buy your script. Are you entitled to any compensation for the work you have invested in the script? If you are a screenplay writer without a track record, it is questionable whether turning a novel into a screenplay will make it more profitable. The novel is being sold on the potential to make a good movie. Once the script is completed, the buyer may perceive that that potential has not been realized. There are thousands of novels published every year, far more than the number of movies produced.

As a general rule of thumb, no more than 5% of the final production budget for a film should go toward acquisition of underlying rights (like this novel), payment for any life story rights, (which apparently does not apply here since it is a fictional work), and to pay for all writers and re-writers. Once you write the script, you have no way of knowing how many rewrites, if any, will be required. How that 5% is divided up is dependent upon the stature of the writer and the marketability of the novel.

Question: I am writing a screenplay based on a professional sports team. I use the name, the stadium where they play, etc. However, all my characters are fictional. Still some will find some of these characters and/or the portrayal of their sport unflattering. By using the names of real teams, am I liable? Where is that line I shouldn't cross? Thank you.

Answer: This is a difficult question because the answer depends on the context. If for instance, you have created a screenplay where there is a fictional New York Yankees team that any reasonable viewer would know is not based on real life events, then it may well be protected under the First Amendment. Part of the difficulty here is that if you have a character portrayed in a negative light, or a character whose privacy is invaded, even if given a fictional name, viewers may think that this person represents a real individual. That person could have a claim against you although you did not use their real name. You should write the script you want and then have an experienced entertainment lawyer clear it before you begin production. For more detailed information, you can consult my book, Dealmaking in the Film and Television Industry.

Question: Thank you for your generosity. An entertainment outsider, I have developed treatments for television specials, television series, and television sports competition series using my expertise and relationships in a specific subject matter - each program is designed with specific broadcast or cable networks in mind for casting, broadcast timing, advertisers, and cross-promotion. I do have a connection or slight relationship with CAA agents and other industry insiders. What might be the best route to pitching the concepts and securing a production deal? I am to understand agencies, such as CAA and UT, will consider concepts, package them (using their talent, of course) and pitch networks.

Answer: Unfortunately, writers are not judged solely on their writing ability. Many times, agencies will not even consider looking at a script by a newcomer unless that script is recommended by an existing client, an industry insider, or someone the agency respects. Assuming you are able to get in the door, and meet with agents at a large packaging agency, you may find that they are not particularly interested in pitches from new writers. They will be more interested in completed scripts. These are much easier to sell for a novice screenwriter. Networks and studios generally don't hire beginning writers to write a screenplay until they have demonstrated that they have the ability to write one.

Question: I am a screenwriter and I adapted a script from a novel. However I have a free option on the book, I do not own the rights. I had a producer interested in my script, but he didn't have the money and wanted to pitch the script to other companies. He absolutely wanted to have all information concerning the book and the author. However, I did not want to give him any information until he signed a contract with me. Everyone around told me that if this person didn't want to sign the contract saying that he would hire me as the screenwriter of the film, he was probably going to cheat me because with all the information he could go directly to the author, buy the rights, and give the job to another screenwriter saying that I had no right to work on this book. Do you see what I mean? Since he didn't want to sign a contract with me, I didn't want to give him the information he wanted, and the deal was over. Do you think I did well and what should I do if such a situation occurs again? Your opinion would be of big help.

Answer: If you have a free option on the book, it means you should have the exclusive option to adapt it into a film. If that is the case, and the contract is legally binding during the term of the option, you have nothing to worry about. No one can go around you. That is the whole point of the option—to take the property off the market so that you have the exclusive right to buy it.

Question: I have recently requested to have my script be read by a production company and although it's probably reaching for the stars, I'd like to know what bargaining room (if any) there is for a screenwriter when a production company wants to option a script. What things should I ask for, what things should I hold firm on, and what things should I ask for. And also, should I hire an entertainment attorney to negotiate this for me (I am unrepresented right now). Is there such thing as a basic price (or a decent price) for an option? I have no idea of what would be considered a "decent" proposal to option.

Answer: Your ability to bargain and improve the deal is a function of how desirable the project is and your stature in the industry. Assuming you are a novice writer with no screenwriting credits, and even if you are not a member of the Writer's Guild of America, you should expect to receive at least Writer's Guild scale for your script, be added to the E&O insurance policy, and be included in the screen and advertising credits. If you have a track record, then you would normally receive a bit more than your last deal.

If the script is very desirable (which might occur if an important director or star wants to do it), you may be able to negotiate for much more. I think it is usually a good idea for the purchase price for a script to be tied to the production budget. The writer might ask, for example, for a price equivalent to 3% of the production budget. That way if the movie becomes a major studio picture for many million of dollars, you would receive compensation commensurate with the budget. The parties may agree to floor and ceiling amounts on this fee. Options are typically 10% of the purchase price, but this is negotiable.

If you are not experienced in negotiating these deals it would be wise to have either an agent or attorney represent you. They will likely probably be able to improve the deal enough to offset their cost.

Also, you should try to retain as much rights as possible (e.g. dramatic rights to turn the script into a stage play, radio, live television, book publishing), and if you grant the producer sequel, remake and television spin-off rights, you should receive passive royalties if those rights are later exploited. Finally, try to include in the deal that the producer will hire you do the first re-write, if a re-write is commissioned, and pay you at least WGA scale for those services. And ask for a reversion clause, so if a picture is not made within 5 years, all rights to the script would revert to you.

Question: I have heard that the Son of Sam law in California has been dropped or modified. What does that mean for writers?

Answer: Son of Sam laws were an attempt to prevent criminals from profiting from books and movies about their criminal activities. In the late 1970's,serial killer David Berkowitz, known as the Son of Sam, terrorized New York. His activities were the subject of a great deal of media attention. In an attempt to stop him from profiting from his crimes, while victims went uncompensated, the New York legislature passed what became known as a "Son of Sam law." Ironically, this law was never actually enforced against Berkowitz because he was found incompetent to stand trial, and the statute only applied to convicted criminals. Moreover, Berkowitz voluntarily paid his share of book royalties to victims or their estates. Nevertheless, other statute legislatures thought such a law had merit, and they enacted their own versions of it. The California law was enacted in 1983, and subsequently amended. One part of the California law imposes an involuntary trust on the convicted felon's proceeds from expressive materials (books, articles, television appearances, etc.) that are based on the story of a felony. These monies are held in trust for the benefit of the victims of the crime. In 1991 the United States Supreme Court (Simon & Schuster v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 1991), held that a similar New York statute was unconstitutional because it violated the First Amendment. The California law was arguably less intrusive than the New York law because it was applied only to convicted felons, and exempted materials that made only a passing mention of the felony. In the recent case of Keenan v. Superior Court of California, 27 Cal. 4th 413 (2002), however, the California Supreme Court held that the California statute violates constitutional protections of free speech. What this means to writers, is that if you are planning to contract with a criminal for his cooperation in developing a book or script, you need not be concerned with a Son of Sam law discouraging the criminal from cooperating with you. However, each state has its own version of the law, and there may be a version that is constitutional, and enforceable. Moreover, those laws that have been struck down could be amended to meet the constitutional objections raised by the courts.
Question: A friend and I were working on a script. Together we came up with the initial idea and the major plot points as well as some details along the way. My partner wrote most of the dialogue and the physical screenplay on his computer, fleshing the story out on paper. My question is...would my contributions warrant a writing credit or a story credit? My "partner" doesn't seem to think so since he spent "hours" behind his computer typing it all out. It's a shame that we are bickering like this and this is probably a sign of the debacle to come. Do you have any thoughts on this?
Answer: This question raises a variety of issues concerning copyright ownership, writing credit, the nature of authorship, and the importance of parties clearly agreeing on the nature of their collaboration at the outset of their working relationship.

The two friends could be joint authors of the work, if that was their intent, and share copyright ownership. Or the parties could have agreed that one party was employing the other, and that the employer is the sole copyright owner of the work. Alternatively, one person could be contributing all the creative work that is copyrightable, while the other is merely providing clerical services, such as typing. In this case, the typist would not be considered a copyright owner regardless of how many hours were spent typing. Since it is unclear to me exactly what each party has contributed, and what agreement the parties made, if any, I cannot predict how a court would determine who is the owner of this work. The copyright owner(s) of the work would determine how it is exploited. In the absence of an agreement, certain legal presumptions might apply. If both parties made creative contributions to the work so that it is deemed the expression of both authors, then they might be presumed to be joint copyright owners in the absence of an agreement that provides otherwise.
Credit is entirely another matter. It is allocated according to the parties' agreement. If the writer is a member of the Writer's Guild, and the employer a signatory to the guild, then the credit allocation rules of the Guild would apply. If a party is not given credit they are due, it might be considered an instance of unfair competition if it mislead the public about the origin of the work. In some countries the denial of credit might be considered a violation of the author's moral rights. The United States recognizes moral rights in regard to fine art, but not in the realm of movies.
The bottom line is that it is very important for the parties to have a clear agreement as to the nature of their collaboration before they begin work. This agreement should be in writing to avoid any future misunderstanding. The Writer's Guild has a model collaboration agreement that is available to Writers. There is also one in my book, Contracts for the Film and Television Industry, 2nd Edition (Silman James Press). Otherwise you can end up in a messy situation where it is unclear what the respective rights of the parties are.
Question: If a writer writes a script on spec intended to be a sequel for a movie or movies already released, what are the legal ramifications? For example, if a writer writes a spec sequel for the Aliens or Scream series, can this script be submitted? What qualifies as Fan Fiction and are there any legal issues with it?

Answer: One cannot create a derivative work without the permission of the copyright owner of the original work. A writer who creates a sequel to another writer's work is creating a derivative work. Such a sequel script is likely to be unusable unless permission of the owner of the original work is obtained. An exception is if the original work has fallen into the public domain, which means it is no longer copyrighted. At that point in time, anyone can create a derivative work. So, for example, all of the Sherlock Holmes tales written by Arthur Conan Doyle are now in the public domain. But most works created in the past 75 years are still protected under copyright law.

It is usually a bad idea for a writer to create a derivative work without permission of the owner of the work it is based upon. Sometimes a writer creates such a sequel in order to demonstrate his/her skill and to offer the script as a writing sample. However, the most impressive example of a writer's skill is a completely original work, not one based on another's creation. If you create a derivative work, you run the risk of wasting your time because without the permission of the owner of the original, the script is unusable. It doesn't matter that you are a fan of the original. Submitting such a script may also damage your reputation because it suggests that you are oblivious to the basic rules of copyright ownership.

For the reasons mentioned, Fan Fiction is usually an instance of copyright infringement. For additional information on Fan Fiction go to: http://www.chillingeffects.org/fanfic/

Question: When a scriptwriter wants to adapt a book that has been out of print for at least twenty years, is there a "standard" offering the scriptwriter should make to the author for the rights? Would it involve a one-time payment, or is it based on a percentage of future sales?

Answer: The fact that the book is out of print is not, by itself, a factor in determining whether you need to acquire rights to adapt it into a motion picture. What is relevant is whether the book is still protected under copyright law, or has gone into the public domain. The term of copyright has been changed several times, so one needs to determine when the work was created and published to calculate how long the copyright lasts.

Once the work goes into the public domain, anyone can use it, and no payment need be made. If the work is still under copyright, then you need to negotiate for the movie adaptation rights to the book. The amount to pay for these rights varies depending how desirable the work is. If the book is out of print, that probably indicates that this is not a hot book property at this time. The most sought-after books are usually new books that are about to be published, or books that have become bestsellers. Books that have been around for many years, with the movie still available, can probably be obtained for a modest sum.

Often an option to purchase the rights is taken. The option is frequently ten percent of the purchase price, but this is negotiable. The purchase price can vary from a modest sum to millions of dollars for a best selling book. The purchase price is often an agreed upon amount (e.g., $100,000), but might be determined by the budget for the film (e.g., 2.5% of the budget). Sometimes, authors also receive a small portion of the profits from the film.

Question: I have no agent and I just signed a "free option" with a well-known producer. My script will be tied up for the next 9 months. Did I act too hastily? I know the producer has a solid reputation, but I'm having second thoughts. Am I being paranoid? Should I have waited to get an agent/lawyer who could have worked out a better deal? The purchase price is a low six figures, but getting to that point is far down the road. Was I stupid to jump at the first offer? Thanks.

Answer: I don't know about the wisdom of the deal since I don't know the terms of your deal. Free options are not that unusual. I prefer to have my writer clients paid something, even if it is just a few thousand dollars because I think a payment of money evidences a certain amount of seriousness on the part of the producer. At any rate, since you signed the contract, it is too late at this point to renegotiate it. If the option expires without being exercised, you can proceed with your next option in a more cautious manner.

Frequently Asked Questions: Titles

Answers from Mark Litwak, Attorney At Law

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.

Question: Is it clearly illegal for a studio to use a title from a copyrighted screenplay for its own work? I copyrighted "Ruby Ridge: An "American Tragedy" as the title of my screenplay many months before CBS decided to produce their miniseries, which is not based on my screenplay. Nobody from CBS ever contacted me, and I have not been compensated.

Answer: Titles are not copyrightable. They can sometimes be protected under trademark laws and laws of unfair competition. In order for a title to be protected, it has to be associated with a series of work and distinguish them from other sources of manufacture than yourself. Another way to protect a title is to register the title with the MPAA, the Motion Picture Association of America, and the Title Registration Bureau, which is binding by virtue of a contract that all the participants and the signatory service sign.

Question: Quick questions on movie titles and trademarks. Prior to a movie being announced, marketed, promoted, and released can the movie title be considered a trademark? Are movie titles trademarkable? If a person owned an Internet domain name, e.g., www.XYZ.com and XYZ was the title of a movie that had not been released, and the title had not been used in a previous movie, would that person be infringing a trademark?

Answer: Trademarks protect product and service names, and company names. When a certain name becomes associated with a certain product or service, trademark rights arise. Some of these rights arise simply from use of the mark. Additional protections arise if you decide to register your trademark. Examples of famous trademarks are Xerox, Apple and IBM. If you are in the computer business, you cannot market your computers as Apple computers unless you have the permission of the company known by that name. Likewise, you cannot set up a hamburger stand across the street from McDonald's and call yourself McDonald's, put up golden arches, or in any way try to pass off your hamburgers as legitimate McDonald's hamburgers, when they are not.

However, titles of individual products like a movie are generally not eligible for trademark protection. Only a series of products from a single source, such as sequels or a television series such as Bonanza, can be protected under trademark law. However, for a one-shot project like a movie, the title would not be protected. The title, however, could possibly be protected under the laws of unfair competition once the title has acquired a secondary meaning. A movie cannot have a secondary meaning with the public before it is released. Thus, after George Lucas had produced and distributed Star Wars, another filmmaker could not distribute a movie called Star Wars II, and trade on the goodwill and name recognition of the original. This would be unfair competition, and would violate various federal and state laws. Whether the use of a name on a product or service violates the trademark rights, or violates various unfair competition laws, may be a difficult call.

Trademark rights are often restricted to a geographical area or type of product. For example, if you operate the Acme Hardware Store in Los Angeles, it would not necessarily prevent someone else from opening an Acme Hardware Store in Brooklyn, a location where you do not do business. Likewise, the fact that you operate a Hardware Store under the mark "Acme" would not prevent someone from setting up the Acme Supermarket because people do not associate hardware and food together. In other words, there is little likelihood of confusion.

Another way to protect titles is with registration with the MPAA. This is protection by contract law, through an arrangement between the MPAA companies and any independent producers who choose to join. It is a contract wherein all parties agree not to infringe each other's titles. There are some limitations because the deal is only binding on those people who choose to sign it. If you wish to contact the MPAA Title Registration Bureau, their number is (818) 995-6600.

Question: You have informed readers "there is limited protection by registering a title at the Motion Picture Association of America Title Registration Bureau." Is there similar protection for titles of television programming; i.e., series, specials, etc.? Thank you.

Answer: The title protection offered by the Motion Picture Association of America is limited because the agreement is only binding on signatories. These include all the member organizations of the MPAA, (essentially the major studios), and any independent producers who choose to sign the agreement. The MPAA does not register titles for television programs. For more information, you can contact the Motion Picture Association of America at (818) 995-6600 or go to their Website at http://www.mpaa.org.

Question: I just discovered your website from my screenwriting listserv group and find it very useful ... thanks! I have a question: My first screenplay in progress is called "Thorn of the Rose." I researched the WGA's site to see if this title was a duplication of another screenplay already written and registered but didn't find any resource on their site that listed every name of screenplays registered. Do I have to worry if that title is already taken?

Answer: Titles cannot be copyrighted, although use of a title in a confusing manner may give rise to an action for unfair competition. Of course, there may be a number of films that share the same title. If the other films that share your title are not likely to be confused with your film (perhaps they are very old, or are no longer being distributed) then you do not have much to worry about. Before finalizing your title, you may want to do a title search to see who else may have used the same or similar title. Title searches can be done through Dennis Angel (914) 472-0820 (online at http://www.lawyers.com/dennisangellaw) or Thomson & Thomson (800) 692-8833 (online at http://www.thomson-thomson.com).

Frequently Asked Questions: Setting Up a Company

Answers from Mark Litwak, Attorney At Law

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.

Question: I am an Independent Producer based in Maryland who is in the process of incorporating. Please advise me on how to proceed. Is it true that it's better to incorporate in Delaware rather than Maryland or Washington, DC?

Answer: There may be little or no advantage to incorporating in Delaware if you are going to have an office in another state and pay taxes there as well. Delaware is desirable because it has liberal corporate governance rules, which probably won't matter for a small company controlled by you. You should consult an attorney or tax accountant to determine the tax advantages and liability issues in regards to incorporating, and whether another form of business entity, such as an LLC might be more advantageous.

Question: I'm a low budget ($20,000) filmmaker preparing to shoot a guerrilla style film in New York City. I'm setting up a corporation and can't seem to get a straight answer on what kind I should set up. Option A, a straight-ahead S-Corp. owned by my partner and I, with investment contracts signed between our company and our investors, or we set up an LLC. What are the advantages and disadvantages of each?

Answer: The most common business entities used by filmmakers are corporations (S or C type), limited liability companies (LLC), and limited partnerships (LP). The best vehicle to use depends on the circumstances, which vary. The major factors are taxes and limiting liability.

One reason to form a company is the desire to protect personal assets from potential liability. If a company that is a separate legal entity from the filmmaker produces a movie, then the filmmaker may not be liable for the debts and obligations of the company. However, for the filmmaker to avoid personal liability, he must sign all contracts in the name of the company and not give any personal guarantees.

The limited liability company (LLC) is a relatively new form of business entity, which combines some of the best aspects of partnership and corporate forms of business while avoiding some of the drawbacks of each. Members of an LLC have the same limited liability protection granted limited partners and corporate shareholders. Unlike a corporation, however, an LLC has more flexibility as to how to pay taxes, and can largely avoid the problem of double taxation.

If your investors are passive investors, you need to comply with the security laws. Whether you do this as a limited partnership, an LLC, or some other method, it doesn't much matter. Complying with the security laws is what is expensive. You do this as a limited offering under Reg. D of the federal and various state analogous statutes, you would be limited to 35 unaccredited investors, you cannot do any public solicitation. Whether your corporation signs contracts with investors, or whether the investors are members of an LLC, the security laws apply either way. For a $20,000 film, it's hard to justify the legal work necessary to comply with the law, therefore, I would suggest you might want to structure your deal in such a way that the security laws don't apply. By taking the money as a gift, or having the investors actively participate in producing the movie, you might be able to avoid these requirements.

Question: I am forming a small independent film production company. Like many others in this position, I don't have a great deal of start-up cash and find the cost of incorporation in California to be prohibitive. I've read about a company that can provide legal services for incorporation for something around $100; additionally, it recommends Delaware as an attractive state in which to form the corporation. What legal and practical disadvantages (and what advantages) are there for a company whose main business is feature film production, to incorporate in Delaware? Also, is incorporation by a company offering this service for this low fee likely to be legally sound?

Answer: You can incorporate yourself simply by paying the state filing fees and any other charges. However, if you don't know what you are doing you may set up the company incorrectly, and the consequences may prove costly later. While you are at it, you can also go to a medical supply house, buy a scalpel and perform your own surgery. The point is that in order to correctly set up a corporation, you need a certain amount of expertise to determine among other things whether a corporation is the best business vehicle for you to do business. Perhaps a partnership or limited liability company would be better for you in your circumstances. As for incorporating in Delaware, Delaware has lax rules as far as corporate governance goes, which is important to large public corporations, but that does not necessarily save you much money, because if you are incorporated in Delaware and doing business in California, you are going to be subject to California tax. You should probably incorporate in the state where you have your primary place of business.

Question: My friend and I have shot a no-budget film that has been financed out of our own pockets and through donations from family members. In hopes of the movie being picked up we are planning to form a partnership. Should we go general or limited and do we need to consult with an attorney for the specifics of such a setup.

Answer: With a general partnership, all the partners have control over the enterprise and no one has limited liability. If everyone is comfortable with sharing decision-making and no one requires limited liability, that's the way to go. On the other hand, if you have passive investors, people who are going to put money into the enterprise but not be involved in managing it, a limited partnership would be the appropriate vehicle to achieve those ends. A limited partnership, however, is considered a security, and it needs to comply with the security laws, which can be fairly expensive. In a limited partnership, the limited partners have limited control and limited liability while the general partners in the limited partnership run the enterprise and have unlimited liability.

Question: I'm an independent producer here in St. Louis, and I'm putting together a trailer and business plan for fundraising purposes. I'm still not sure how I should raise money for this film. I've always been told that a "limited partnership" is the way to go, but now I'm hearing about other options (Loan Agreement, Limited Liability, etc). Most of the funds will come from family and friends. Is an LP necessary? And if one is, is it possible I can draft the contracts on my own (without a lawyer doing it) and still have them be legally binding. There are no entertainment attorneys here in St. Louis, and I don't want to pay for something I can do myself. Any advice would be helpful.

Answer: If you are making an arrangement with passive investors, that is investors who put money into the project, expect to share in the profits, and don't have any control over the project, then both state and federal securities laws apply. There is no exemption in the security laws simply because your investors are friends or family. So, technically, if you take money from them and don't comply with securities laws, you are in violation of the law.

A limited partnership provides limited liability to the investors, which is often important to them, and limits their control over the endeavor, which is often something that the general partner, the filmmaker, wants. Yes, you can draft contracts on your own, but that is no guarantee you'll do it correctly. Securities laws are extremely complex, and I would not advise you to do this on your own. If you want to save money, perhaps you should do some of the production legal work on your own.

Question: We have a project and are interested in soliciting investors without violating SEC rules. What can we say that's legal but still gets the point across, and what is illegal?

Answer: The most important thing to say is that you are not making an offer. You are simply having a preliminary discussion with people. In order to take money from investors, you need to either register your company with the SEC, which costs a considerable sum, or fall into one of the limited offering exemptions. A major restriction on these limited offerings exemptions is that you cannot do any public solicitations like mass mailings and cold-callings. And you'll be limited to thirty-five unaccredited investors. An accredited investor is essentially a wealthy, sophisticated investor. Everyone else is an unaccredited investor. If you can live with those restrictions, the cost of complying with securities laws is considerably less but still significant. If you violate the securities laws, you can be subject to civil and criminal penalties.

Question: Putting together a business plan just makes good business sense. However, I gather that it is a legal requirement. Is there a form that the SEC or state requires? If so, does the state supply it or is it boilerplate bought at a stationary store.

Answer: If you are raising money from private investors who will not be actively involved in producing the movie, their interests are called securities and you will need to comply with the state and federal security laws. These laws are very complex, and there are civil and criminal penalties for their violation. This is one area of the law where you need to retain experienced counsel to prepare a limited offering memorandum, usually accompanied with a proposed LLC or Limited Partnership Agreement. Don't do it yourself unless you are the type of person who thinks it would be okay to do brain surgery on yourself.

Question: I want to shoot a low budget film. My question is, is it better to form a corporation or a limited liability partnership?

Answer: The question of what is the best vehicle depends on several factors, primarily liability and taxes. Today most independent filmmakers will either: (1) incorporate, (2) form a limited liability company, or (3) form a limited partnership with their investors being the limited partners. If you set up an entity that is considered a separate legal entity from yourself, this may insulate you from liability should someone be injured during the shoot or a lawsuit arise. Establishing a separate entity may have some tax consequences, however, which could be either positive or negative.

Frequently Asked Questions: Securing Rights

Answers from Mark Litwak, Attorney At Law

DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.

Question: What's the proper procedure in trying to secure the rights to a feature property owned by a major distributor?

Answer: First, determine if the distributor or owner of the rights is willing to option or sell any rights to you. If a major studio has decided not to pursue the project itself, the producer who brought that property to the studio may have a turnaround or reversion clause enabling him/her to regain rights to the property. Moreover, if a distributor optioned a property, and the option lapsed without being exercised, the rights to the property may now reside with the author.

Question: I recently learned of a French book I would like to try and set up as a film here in the U.S. The publisher informed me a French production company is making a French version of the film right now. Is it possible to get English language rights from the producers in France and make the film here in English, or are the film rights tied up in one film/one language?

Answer: You need to contact the owner and review the deal made by him/her with the French company. If the owner licensed all rights to the French company, then you will need to negotiate with the French production company. If the owner, reserved English language rights, you could license them.

Question: I am currently working on an animation project that we have just pitched to a large animation production company. Till this point every company that has seen our project has been interested by the merchandising potential of our character(s) and concept. (We have heard the words "Teenage Mutant Ninja Turtles" many a time over the past year.)

The problem we have had up until this point is that we want to retain at least a good portion of the ownership and rights to our characters and concept. So far we have walked twice just for that reason. We were told it was not possible to keep the rights to our characters and ownership was unheard of in the industry. We have just pitched our idea, and though we have not heard if they plan to develop our concept, I am wondering if we are going to hit the same roadblock. They have told me off the bat that ownership was negotiable, but that was before they saw our material. My questions are: (1) What can I expect in reference to ownership? (2) How much is an idea worth in this business? They have told us that should they decide to develop our idea, they had the capability to finance it in-house (something they say they previously have not been able to do) and I'm almost anticipating them downplaying our idea for the reason of getting more out of the deal. We are essentially greenhorns, and I don't blame them for trying such a thing, but what is a good way to deter or counterattack such a tactic. Any suggestions would be greatly appreciated.

Answer: It is possible to retain merchandising rights. George Lucas did that on "Star Wars." However, your ability to retain merchandising rights will depend upon your negotiating clout and stature in the business. If you are just beginning, you may find it difficult to retain ownership rights.

Besides retaining ownership rights, there is also the issue as to how revenues from exploitation of the material are to be shared. If you gave up ownership rights, but were entitled to significant participation in revenues that were derived from your work, that might be a deal worth considering, if the company is reputable and if you have adequate assurances that you would actually be paid the money due to you.

Question: I've been offered an opportunity to write a screenplay under a Work Made for Hire agreement. I have written several screenplays of my own—the writing isn't the problem—it's the Work for Hire arrangement. Thus far, I've been given a very brief treatment and a contract stating that I essentially claim no rights to the "Owner's" film, which is fine. (I have not signed the contract as yet, by the way.) However, the treatment is very sketchy and in discussion with the owner I've been able to show him where particular aspects of his story might not work.

After researching the issue, he agreed that he had some flaws in his treatment and wanted to know how I thought they should be fixed. Basically, my question is this: What are my responsibilities in this type of relationship? To me it seems there should be a clear line between putting someone's developed story into script format and developing the story, plot, back-story, etc., which is what he's trying to have me do. If I'm developing the story, plot, etc., doesn't that then make me a co-writer? Or is this what "Work Made for Hire" is all about—the writer comes up with the story and the "Owner" gets all the glory?

Answer: The issue of who gets the glory and the credit is separate from who owns the property. In a work-for-hire arrangement, typically the employer owns the copyright to the work. The writer, however, may be entitled to sole or shared screenwriter credit. Keep in mind that if this is a Writers Guild agreement, the producer doesn't have the final say about the writing credit anyway. That's subject to Writers Guild arbitration.

Question: I am writing a book and within the book I would like to include a monologue from a major motion picture. How would I go about getting an "okay" from the motion picture company to do that? Who would I contact?

Answer: The studio that released the major motion picture most likely owns the copyright to it. Sometimes, however, a production company might retain the copyright and simply arrange for distribution by contract. At any rate, you should start by contacting the legal department at the studio that has released the picture to find out who owns the rights to the script. You cannot use a monologue from a major motion picture on another work without violating the copyright of the motion picture. There are a couple of exceptions. If the copyright for the motion picture has expired, then you can use the dialogue, or if you are using just a very short portion of the monologue, it might fall within the fair use doctrine.

Question: I am interested in remaking a variation of an old Hitchcock film. Would you direct me on how I should proceed so as not to incur any legal problems?

Answer: It is unlikely that the old Hitchcock film is in the public domain. Therefore, you will need to secure permission from the copyright owner. A good place to start is the studio that released the film. You should contact their legal department to determine who owns the copyright to the film. It is probably either the producer or a distributor. Then, you need to determine who owns the remake rights.

Question: How does Lucasfilm own the merchandising/licensing rights to all of the "Star Wars" episodes? Wouldn't the studio have control over that? Or do you have to be a heavy hitter like George Lucas to negotiate for that? My real question is this: Say I have a potential franchise movie idea and I would like to control (or at least participate in) the merchandising/licensing opportunities. Who controls those rights to begin with?

Answer: George Lucas was shrewd to reserve the merchandising rights when negotiating his deal with 20th Century Fox. Undoubtedly the studio did not realize how successful his picture would be, and how lucrative the various merchandising spin-offs would become. There is nothing preventing you when you negotiate with a distributor to reserve these rights. That being said, most distributors have awakened to merchandising potential from feature films, and they often insist on controlling these rights. If they pay you enough money, you may want to relinquish the rights.

Question: I am currently working with a member of one of the most popular bands of the Sixties on his story as a screenplay. I need to know what rights and clearances I need to use certain material. I don't mind controversy; I just don't want this project in any legal trouble. Thank you for your time, knowledge, and help.

Answer: The rights you need depend upon what you are planning to do. Certainly if you are going to be using the music of one of these bands, you will need to obtain various rights from the music owners. This may include composers, record companies and publishers of the music, as well as any musicians, vocalists, and lyricists. If you are going to be showing any footage of the band from prior performances, then you will need permission from the copyright owner of those film clips. If you are simply doing a documentary about the band, and not planning to incorporate any of their music, you may not need any rights. Assuming you don't defame them or invade their privacy, you may be protected under the First Amendment. But it seems to me to be particularly difficult to do a movie about a band without using some of their music.

Question: How does one go about obtaining the rights for movies for public viewing as does such stores as Blockbuster and home rental centers?

Answer: Tapes you rent from Blockbuster and other retail home video outlets are for home use only. These retailers do not have the right to license public performance rights. For this you need to contract directly with the copyright owner or licensee, which is often the distributor of the film.