April 26, 2004
In this newsletter:
THE COURT DISMISSES "RUGRATS" INFRINGEMENT CLAIM AND REPRIMANDS PLAINTIFF'S LAWYER FOR FAILING TO WITHDRAW
Philip Cargile sued Viacom for basing the characters from the Nickelodeon series, the "Rugrats," on his cartoon characters, the "Go-Burns." Cargile claimed that in 1991 and in 1992, he gave copies of his cartoon characters to a member of the Florida Film Commission who was supposed to meet with Nickelodeon.
Viacom denied Cargile's allegations and filed a motion for summary judgment to dismiss the case. Viacom provided evidence that the Rugrats were created by an independent production company in 1989, and a pilot for the series aired in 1990, before Cargile allegedly submitted copies of his cartoons. Viacom also argued that Cargile failed to file his lawsuit within the statute of limitations of four years for contracts, and of three years for trade secret claims. Cargile filed his lawsuit in 2000, more than nine years after Rugrats first aired.
District Judge Stephan Mickle granted Viacom's summary judgment motion. The Judge stated that the case could be dismissed based on the statute of limitations argument alone. The Judge also found that the similarity between the Go-Burns and the Rugrats was so "slight" that it could not support Cargile's allegation that Viacom used his cartoon characters. In addition, Cargile did not provide any evidence of an implied agreement with Viacom to maintain the secrecy of his characters or to pay for their use. Furthermore, the member of the Commission who allegedly had a meeting with Nickelodeon died, and therefore, Cargile's claim that the meeting actually took place could not be corroborated.
Viacom also sought monetary sanctions against Cargile's attorney under Rule 11 of the Federal Rules of Civil Procedure for failing to withdraw from the case after Cargile refused to dismiss the case voluntarily. The Judge did not grant Viacom's request for monetary sanctions but he reprimanded Cargile's attorney for not withdrawing from the case, and thus failing to act in accordance with his duties under Rule 11 and the rules of professional conduct. Cargile v. Viacom International, Inc., 282 F.Supp.2d 1316, 2003 U.S. Dist.LEXIS 21097 (N.D.Fla. 2003)
MARK TO TEACH AT NEW YORK VOLUNTEER LAWYERS FOR THE ARTS
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.
RISKY BUSINESS IS NOW AVAILABLE
Mark's latest book "Risky Business" is now available for purchase and delivery via UPS through his website at www.marklitwak.com/store. "Risky Business" is the comprehensive nuts-and-bolts guide to setting up an independent production project. Starting with the basic organization of the company and the preparation of production, collaboration, and screenplay agreements, it covers in detail everything from raising money via loans, presales, and investors through finding, contracting with, and policing the finished project's distributors.
Monday, April 26, 2004
Friday, April 23, 2004
HE COURT DISMISSES CLAIM THAT THE OWNERS OF THE COMEDY CENTRAL INFRINGED RIGHTS WHEN THEY AIRED A CLIP OF A SHOW
April 23, 2004
In this newsletter: T
HE COURT DISMISSES CLAIM THAT THE OWNERS OF THE COMEDY CENTRAL INFRINGED RIGHTS WHEN THEY AIRED A CLIP OF A SHOW
Sandy Kane, a host of a late-night public access television program, “The Sandy Kane Blew Comedy Show,” in which she sings, dances and makes explicit jokes, filed a lawsuit against Comedy Central for copyright and trademark infringement, and for defamation and violation of her right of publicity.
A clip from Kane's show was shown on a segment of "The Daily Show" called "Public Excess." In the clip, Kane was dancing in a bikini and the title of her show appeared in the background. The clip was shown on a full screen for less than a second and then it was minimized but remained on air for another five seconds. In addition, a portion of the clip was used in a commercial promoting "The Daily Show," along with other clips from segments of "The Daily Show." The promo's announcer proclaimed "The Daily Show: comprehensive, extensive, offensive," and as he pronounced the word "offensive," the clip with Kane dancing in a bikini came on.
Federal District Judge George Daniels granted Comedy Partners' (the owners of Comedy Central) motion for summary judgment and dismissed all of Kane's claims. Judge Daniels ruled that "The Daily Show's" use of the clip from Kane's show protected from copyright infringement because it was a fair use. The Judge found that "by airing [the] clip in a segment called 'Public Excess' and adding some derisive commentary, [Comedy Central] unquestionably used her material for the purpose of criticism." The Judge also stated that "the use of the clip on a commercial for 'The Daily Show, coinciding with the announcer's warning that some material on the show may be 'offensive,' puts the clip into a critical context."
Furthermore, Judge Daniels ruled that viewers would not switch to watching "The Daily Show" just because it aired a clip from Kane’s show. Thus, the use of the clip by "The Daily Show" would not affect the market for Kane's show.
As to Kane's trademark infringement claim, Judge Daniels dismissed it because the use of the clip in "The Daily Show" did not create an impression that someone besides Kane herself was the owner of the trademark of "The Sandy Kane Comedy T.V. Show.
In addition, the Judge rejected Kane's claim that "The Daily Show's" use of her clip violated her right of publicity. He ruled that Kane's name or likeness was not used "primarily for advertising or trade purposes." He also found that the use of the clip fell within the New York Civil Rights Act's "newsworthy" exception for "entertainment and amusement."
Finally, the Judge also dismissed Kane's claim that she was defamed. "The Daily Show" announcer's reference to Kane and her performance as "offensive" was clearly "protected expression of opinion."
Kane v. Comedy Partners, 2003 WL 22383387. U.S. Dist. LEXIS 18513 (S.D.N.Y. 2003)
In this newsletter: T
HE COURT DISMISSES CLAIM THAT THE OWNERS OF THE COMEDY CENTRAL INFRINGED RIGHTS WHEN THEY AIRED A CLIP OF A SHOW
Sandy Kane, a host of a late-night public access television program, “The Sandy Kane Blew Comedy Show,” in which she sings, dances and makes explicit jokes, filed a lawsuit against Comedy Central for copyright and trademark infringement, and for defamation and violation of her right of publicity.
A clip from Kane's show was shown on a segment of "The Daily Show" called "Public Excess." In the clip, Kane was dancing in a bikini and the title of her show appeared in the background. The clip was shown on a full screen for less than a second and then it was minimized but remained on air for another five seconds. In addition, a portion of the clip was used in a commercial promoting "The Daily Show," along with other clips from segments of "The Daily Show." The promo's announcer proclaimed "The Daily Show: comprehensive, extensive, offensive," and as he pronounced the word "offensive," the clip with Kane dancing in a bikini came on.
Federal District Judge George Daniels granted Comedy Partners' (the owners of Comedy Central) motion for summary judgment and dismissed all of Kane's claims. Judge Daniels ruled that "The Daily Show's" use of the clip from Kane's show protected from copyright infringement because it was a fair use. The Judge found that "by airing [the] clip in a segment called 'Public Excess' and adding some derisive commentary, [Comedy Central] unquestionably used her material for the purpose of criticism." The Judge also stated that "the use of the clip on a commercial for 'The Daily Show, coinciding with the announcer's warning that some material on the show may be 'offensive,' puts the clip into a critical context."
Furthermore, Judge Daniels ruled that viewers would not switch to watching "The Daily Show" just because it aired a clip from Kane’s show. Thus, the use of the clip by "The Daily Show" would not affect the market for Kane's show.
As to Kane's trademark infringement claim, Judge Daniels dismissed it because the use of the clip in "The Daily Show" did not create an impression that someone besides Kane herself was the owner of the trademark of "The Sandy Kane Comedy T.V. Show.
In addition, the Judge rejected Kane's claim that "The Daily Show's" use of her clip violated her right of publicity. He ruled that Kane's name or likeness was not used "primarily for advertising or trade purposes." He also found that the use of the clip fell within the New York Civil Rights Act's "newsworthy" exception for "entertainment and amusement."
Finally, the Judge also dismissed Kane's claim that she was defamed. "The Daily Show" announcer's reference to Kane and her performance as "offensive" was clearly "protected expression of opinion."
Kane v. Comedy Partners, 2003 WL 22383387. U.S. Dist. LEXIS 18513 (S.D.N.Y. 2003)
Wednesday, April 07, 2004
MARK'S NEWEST BOOK, "RISKY BUSINESS," ABOUT TO BE PUBLISHED
April 7, 2004
In this newsletter:
MARK'S NEWEST BOOK, "RISKY BUSINESS," ABOUT TO BE PUBLISHED
"Risky Business" is the comprehensive nuts-and-bolts guide to setting up an independent production project. Starting with the basic organization of the company and the preparation of production, collaboration, and screenplay agreements, it covers in detail everything from raising money via loans, presales, and investors through finding, contracting with, and policing the finished project's distributors. We will receive copies from the publisher any day now. The book is not yet in bookstores. To order visit the bookstore on Mark's website: www.marklitwak.com/store.
The complete table of contents is below:
PREFACE FILMMAKER SELF DEFENSE CHECKLIST ORGANIZING YOUR COMPANY Choice of Business Entity Sole Proprietorship General Partnership Limited Partnership Corporation Limited Liability Company (LLC)
COLLABORATIONS AND CO-PRODUCTIONS International Co-Productions Production Incentives FINANCING
INDEPENDENT FILMS Loans Contract: Promissory Note Contract: Promissory Note with Guarantee Borrowing Against Pre-sale Agreements Investor Financing Registration and Exemptions 504 Offering 505 Offering 506 Offering Intrastate Offering Exemption Accredited Investor Exemption California Limited Offering Exemption Anti-Fraud Provisions Distributor Supplied Financing Finders
ATTRACTING INVESTORS Checklist for Film Investors
TACTICS AND STRATEGY IN ARRANGING DISTRIBUTION How Much is My Film Worth? How Distributors Evaluate a Film Sources of Revenue Increasing Your Leverage Film Festivals Working the Festival Circuit Balancing Risks and Rewards The Acquisition/Distribution Agreement Investigate the Distributor
THE DISTRIBUTION AGREEMENT Principle Terms of a Distribution Agreement Territory Media Term Distribution Fee Distribution and Marketing Expenses Advances and Guarantees Consultation Rights Warranties and Representations Accounting Arbitration Insurance Termination Assignment Allocation of Package Revenue Security Interest Governing Law Territorial Minimums Access to Master Materials Return of Materials Delivery
WHEN A DISTRIBUTOR DEFAULTS Selecting a Distributor Creative Accounting Conducting an Audit How Revenue is Divided Creative Accounting Pitfalls Accounting Terms Defensive Tactics A Filmmaker’s Bill of Rights
LOOKING FORWARD APPENDIX - DISTRIBUTION Delivery Checklist Certificate of Origin Statement of Prior Distribution Statement of Distribution Restrictions and Obligations Major Deal Points: Acquisition/Distribution Agreement Copyright Security Agreement
GLOSSARY OF TERMS
The book also includes the following template contracts:
CONTRACTS Co-Production Agreement Distributor Sales Agency Agreement Finder Agreement International Distribution License Agreement Lab Access Letter International Distribution Agreement (Filmmaker-friendly version) International Distribution License Agreement
In this newsletter:
MARK'S NEWEST BOOK, "RISKY BUSINESS," ABOUT TO BE PUBLISHED
"Risky Business" is the comprehensive nuts-and-bolts guide to setting up an independent production project. Starting with the basic organization of the company and the preparation of production, collaboration, and screenplay agreements, it covers in detail everything from raising money via loans, presales, and investors through finding, contracting with, and policing the finished project's distributors. We will receive copies from the publisher any day now. The book is not yet in bookstores. To order visit the bookstore on Mark's website: www.marklitwak.com/store.
The complete table of contents is below:
PREFACE FILMMAKER SELF DEFENSE CHECKLIST ORGANIZING YOUR COMPANY Choice of Business Entity Sole Proprietorship General Partnership Limited Partnership Corporation Limited Liability Company (LLC)
COLLABORATIONS AND CO-PRODUCTIONS International Co-Productions Production Incentives FINANCING
INDEPENDENT FILMS Loans Contract: Promissory Note Contract: Promissory Note with Guarantee Borrowing Against Pre-sale Agreements Investor Financing Registration and Exemptions 504 Offering 505 Offering 506 Offering Intrastate Offering Exemption Accredited Investor Exemption California Limited Offering Exemption Anti-Fraud Provisions Distributor Supplied Financing Finders
ATTRACTING INVESTORS Checklist for Film Investors
TACTICS AND STRATEGY IN ARRANGING DISTRIBUTION How Much is My Film Worth? How Distributors Evaluate a Film Sources of Revenue Increasing Your Leverage Film Festivals Working the Festival Circuit Balancing Risks and Rewards The Acquisition/Distribution Agreement Investigate the Distributor
THE DISTRIBUTION AGREEMENT Principle Terms of a Distribution Agreement Territory Media Term Distribution Fee Distribution and Marketing Expenses Advances and Guarantees Consultation Rights Warranties and Representations Accounting Arbitration Insurance Termination Assignment Allocation of Package Revenue Security Interest Governing Law Territorial Minimums Access to Master Materials Return of Materials Delivery
WHEN A DISTRIBUTOR DEFAULTS Selecting a Distributor Creative Accounting Conducting an Audit How Revenue is Divided Creative Accounting Pitfalls Accounting Terms Defensive Tactics A Filmmaker’s Bill of Rights
LOOKING FORWARD APPENDIX - DISTRIBUTION Delivery Checklist Certificate of Origin Statement of Prior Distribution Statement of Distribution Restrictions and Obligations Major Deal Points: Acquisition/Distribution Agreement Copyright Security Agreement
GLOSSARY OF TERMS
The book also includes the following template contracts:
CONTRACTS Co-Production Agreement Distributor Sales Agency Agreement Finder Agreement International Distribution License Agreement Lab Access Letter International Distribution Agreement (Filmmaker-friendly version) International Distribution License Agreement
Thursday, April 01, 2004
TIMES SQUARE BUILDING AND BILLBOARD OWNERS GET A SECOND SHOT AT SONY
April 1, 2004
In this newsletter:
TIMES SQUARE BUILDING AND BILLBOARD OWNERS GET A SECOND SHOT AT SONY
The owners of buildings and billboards in Times Square filed claims against Sony Pictures for altering the way the building and billboards appeared in real life at the time the movie was filmed. In “Spider Man,” images of the buildings and billboards were digitally altered.
Owners of the buildings and billboards claim that in the movie scenes of Times Square, Sony digitally inserted other companies’ ads and signs in order to “generate revenue.” Sony, on the other hand, argues that the reason they changed the appearance of Times Square is in order to create a more “artistically satisfying [in] appearance.” The real appearance of Times Square was too “advertising-encrusted” for the movie.
Sony scanned the images of the Times Square buildings and billboards with a laser light beam, and then digitally created new images for the movie. Owners of the buildings and billboards claim that under New York state law, this digital alteration violated their trademark and trade dress rights and amounted to “trespass.” They also filed federal law claims against Sony.
Both federal and state law claims of the Times Square’s owners were dismissed by federal District Judge Richard Owen. Times Square’s owners appealed and the federal appellate court affirmed the dismissal of federal causes of action. However, in a Summary Order marked “May Not be Cited as Precedential Authority,” the appellate court has vacated Judge Owen’s dismissal of the owners’ state law claims “with prejudice” and remanded the state law claims with instructions that they be dismissed “without prejudice.” For the owners, dismissal “without prejudice” means that they may file their claims in state court, if they decide to do so.
In its decision, the Court of Appeals concluded that the owners’ state law claims should not be dismissed because their allegations of trespass were “an unsettled question of state law.” The case was dismissed before Sony could show that its digital alterations had “artistic relevance” to the movie and were therefore protected under the First Amendment. Sherwood 48 Associates v. Sony Corp., 76 Fed.Appx. 389, 2003 U.S.App.LEXIS 20106 (2nd Cir. 2003).
CLARIFICATION
In my last newsletter, I discussed the arbitration award won by my client, Florida Film Investment Company against RGH/Lions Share. Mention was made of a license between RGH/Lions Share to a home video label, Singa Home Entertainment, which is also managed by Eric Louzil a principal of RGH/Lions Share. Singa, in turn, attempted to license the film to Pathfinder Pictures, which is not a company affiliated or connected in any way with RGH/Lions Share, Singa or Eric Louzil. I want to make it clear to my readers that Pathfinder was not a party to the arbitration proceeding, and was not accused of any wrongdoing in this matter at all.
In this newsletter:
TIMES SQUARE BUILDING AND BILLBOARD OWNERS GET A SECOND SHOT AT SONY
The owners of buildings and billboards in Times Square filed claims against Sony Pictures for altering the way the building and billboards appeared in real life at the time the movie was filmed. In “Spider Man,” images of the buildings and billboards were digitally altered.
Owners of the buildings and billboards claim that in the movie scenes of Times Square, Sony digitally inserted other companies’ ads and signs in order to “generate revenue.” Sony, on the other hand, argues that the reason they changed the appearance of Times Square is in order to create a more “artistically satisfying [in] appearance.” The real appearance of Times Square was too “advertising-encrusted” for the movie.
Sony scanned the images of the Times Square buildings and billboards with a laser light beam, and then digitally created new images for the movie. Owners of the buildings and billboards claim that under New York state law, this digital alteration violated their trademark and trade dress rights and amounted to “trespass.” They also filed federal law claims against Sony.
Both federal and state law claims of the Times Square’s owners were dismissed by federal District Judge Richard Owen. Times Square’s owners appealed and the federal appellate court affirmed the dismissal of federal causes of action. However, in a Summary Order marked “May Not be Cited as Precedential Authority,” the appellate court has vacated Judge Owen’s dismissal of the owners’ state law claims “with prejudice” and remanded the state law claims with instructions that they be dismissed “without prejudice.” For the owners, dismissal “without prejudice” means that they may file their claims in state court, if they decide to do so.
In its decision, the Court of Appeals concluded that the owners’ state law claims should not be dismissed because their allegations of trespass were “an unsettled question of state law.” The case was dismissed before Sony could show that its digital alterations had “artistic relevance” to the movie and were therefore protected under the First Amendment. Sherwood 48 Associates v. Sony Corp., 76 Fed.Appx. 389, 2003 U.S.App.LEXIS 20106 (2nd Cir. 2003).
CLARIFICATION
In my last newsletter, I discussed the arbitration award won by my client, Florida Film Investment Company against RGH/Lions Share. Mention was made of a license between RGH/Lions Share to a home video label, Singa Home Entertainment, which is also managed by Eric Louzil a principal of RGH/Lions Share. Singa, in turn, attempted to license the film to Pathfinder Pictures, which is not a company affiliated or connected in any way with RGH/Lions Share, Singa or Eric Louzil. I want to make it clear to my readers that Pathfinder was not a party to the arbitration proceeding, and was not accused of any wrongdoing in this matter at all.
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