A broad coalition of groups influential in documentary filmmaking have come together to issue a joint statement as to what they consider acceptable practices when applying the Fair Use Doctrine to documentary films.
The Statement was authored by the Association of Independent Video and Filmmakers; Independent Feature Project; International Documentary Association; National Alliance for Media Arts and Culture; and Women in Film and Video (Washington, D.C., chapter).
This important Statement will likely be considered by courts in resolving fair use disputes. It can be downloaded for free from the Center for Social Media http://www.centerforsocialmedia.org/fairuse.htm
Many writers and filmmakers are confused about the fair use doctrine and whether they need permission to borrow from copyrighted works. Documentary filmmakers are often uncertain whether they can borrow, and how much they can borrow, to incorporate in their film without a license. Obviously, a filmmaker preparing an expose or even taking a critical look at a subject cannot expect the subject to grant them a license. Robert Greenwald is not going to get, nor did he even bother to ask, for permission from the Fox Network for inclusion of their television footage in his film “Outfoxed: Rupert Murdoch’s War on Journalism.”
If the fair use doctrine applies, no license is needed to borrow from a copyrighted work. It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship. Such uses include fair comment and criticism, parody, news reporting, teaching, scholarship and research. Thus, a movie or literary critic does not need permission to include a small quote from a work being reviewed. It is sometimes said of writers that if you borrow extensively from one author’s work, you are a thief; but if you borrow from hundreds, you are a scholar. Of course, the scholar adds value by synthesizing information from prior works and creating something new.
The Statement addresses common situations faced by filmmakers such as when can they quote works of popular culture without permission, and when will an incidental use of background music or visuals on a television set be considered a fair use.
In determining whether the use of a copyrighted work is fair use, courts weigh four factors:
1) The purpose and character of the work: A non-profit educational use is more likely to be considered a fair use than a commercial use. A commercial use is one that earns a profit.
2) The nature of the copyrighted work: There is greater public interest in allowing borrowing for scientific, biographical and historical works than for entertainment works.
3) The amount and substantiality of the portion borrowed in relation to copyrighted work as a whole: Taking one sentence from a five hundred page book is more likely to be considered a fair use than taking a sentence from a ten line poem.
4) The potential adverse effect on the market for, and value of, the copyrighted work: If borrowing from the copyrighted work harms the market for it, the use is less likely to be considered a fair use. Borrowing a sentence from a novel and incorporating it in another, completely different kind of work, such as a scholarly work, is unlikely to have any effect on sales of the novel. Likewise, borrowing from a book that is out of print is not likely to have an adverse impact on its sales.
In applying these factors to a specific factual situation, it can often be difficult to predict whether a use will fall within the doctrine. Generally speaking, a greater amount of material may be borrowed from non-fiction works than from fictional works. Clearly, a writer can borrow histori¬cal facts from a previous work without infringing upon the first author’s copyright, because of both the fair use doctrine and because historical facts are not copyrightable. Moreover, since factual works, unlike works of fiction, may be capable of being expressed in relatively few ways, only verbatim reproduction or close paraphrasing will be an infringement.
Writers should be more cautious in borrowing from novels and other fictional works. In one case, the author of the book “Welcome to Twin Peaks: A Complete Guide to Who’s Who and What’s What,” was found to have infringed the television series “Twin Peaks.” The book contained detailed plot summaries and extensive direct quotations of at least eighty-nine lines of dialogue.
One encounters a lot of grey areas in applying the fair use doctrine. It is safe to say that a schoolteacher will be protected if she photocopies a Newsweek article and distributes it to her class on one occasion. If the schoolteacher, however, photocopies an entire textbook and distributes it to her students in order to save them the expense of purchasing their own texts, this would not be a fair use. But there are many factual situations that lie between these two extremes; and in those cases it can be difficult to predict whether the fair use doctrine will be a good defense.
Friday, December 30, 2005
Saturday, December 17, 2005
The Matador Opens December 23
The Matador starring Pierce Brosnan, Greg Kinnear and Hope Davis premieres in New York and Los Angeles on December 23. Written and Directed by our client Richard Shepard, the film was acquired at last year's Sundance Film Festival by Miramax.
The film will be released in other cities in January.
The Matador website: http://www.miramax.com/matador/
Tactics and Strategy in Negotiating the Distribution Deal
By Mark Litwak
Attorney At Law
Many independent filmmakers are surprised at the amount of effort and skill required to secure an equitable distribution agreement. With the dramatic increase in independent production, it is apparent that many filmmakers have mastered the skills needed to secure the money and equipment needed to produce a film. The major obstacle facing many filmmakers is how to secure distribution for their motion picture.
This article explores the tactics and strategies that can be used to obtain a favorable distribution deal for the indie filmmaker.
In negotiating the distribution deal, the relative bargaining power of the parties is determined by the perceived desirability of the film and how much risk each party is willing to take. With a major studio project, the studio has often borne most, if not all, the financial risk. Typically, the studio pays for development, production and distribution. The director/producer is employed by the studio, receives a fee for his services, and may be entitled to a small share of net profits. "Net Profits," however, are defined so that there is little likelihood the employee will ever realize anything from this "back-end" compensation.
On the other hand, when a film is developed and produced by an independent Filmmaker, as an entrepreneur the filmmaker bears the risk of failure. Often the distributor will not have any involvement in the development of the script, or the production of the film. Since the distributor screens a completed work before deciding whether to acquire it, the distributor assumes less risk. The distributor knows exactly what it is obtaining. Consequently, if the Filmmaker has skillfully made a script into an appealing film, the filmmaker may be able to obtain a better deal. Under such a film acquisition agreement, the distributor may agree to share revenue according to a formula that will actually generate monies on the back end, assuming the distributor accounts fairly. If the filmmaker stumbles and creates a film with little appeal, however, no distributor may acquire it, and the loss will be borne entirely by the filmmaker and his investors.
INCREASING YOUR LEVERAGE
When a distributor negotiates to acquire film rights, the distributor often has more clout than the filmmaker. This is a vulnerable position for the filmmaker. The filmmaker, or his representative, must know how to orchestrate the release of the film into the marketplace to achieve maximum leverage. This may entail generating competition through positive word of mouth within the industry. Such "buzz" or "heat" can be encouraged by filmmakers who work the festival circuit and mount a campaign on behalf of their film.
From the filmmaker's point of view, one will obtain a better deal if there is more than one distributor competing for the film. It is not difficult to alert acquisition executives to the existence of a film. Once a start date has been announced, filmmakers begin receiving calls. Acquisition executives track the progress of each film so that they can try to view it as soon as it is completed, and before their competitors see it.
To ensure that acquisition executives are aware of a film, one can send a press release announcing the project to the trade papers and magazines (Hollywood Reporter: (213) 525-2000, Daily Variety: (213) 857-6600, FILM MAKER: 213-932-6060, Moviemaker: 310-234-9234, The Independent: 212-807-1400). These publications will include your film in their listings of motion pictures in development, pre-production and production. Likewise, one should alert Film Finders at (310) 657-6397, a company that tracks films for many distributors.
Here are some other ways to create competition and maximize your leverage:
1) NO SNEAK PREVIEWS: Do not show your film to distributors until it is complete. Executives may ask to view a rough cut. They will assure the filmmaker, "Do not worry. We are professionals, we can extrapolate and envision what the film will look like with sound and titles." Do not believe them. Most people cannot extrapolate. They will view an unfinished film and think it amateurish. First impressions last. The community of acquisition executives is small, and they frequently mingle at screenings and festivals where they compare notes. One acquisition executive bad-mouthing your film, can cause a lot of damage.
The only reason to show an unfinished is if one is desperate to raise funds to complete it. The terms one can secure under these circumstances will be less advantageous than what could obtain for a finished film. If you must show a work-in-progress, exhibit it on a Moviola or flatbed editing table. People have lower expectations watching a film on an editing console than when it is projected in a theater. If you must send out cassettes of an unfinished film, prominently label it so that your viewers are reminded that they are seeing a work-in-progress.
2) SCREEN IT BEFORE A CROWD: It is usually better to invite executives to a screening than to send them a videocassette. If you send a tape to a busy executive, he will pop it in his VCR. Ten minutes later the phone rings and he hits the pause button. Then he watches another ten minutes until his secretary interrupts. After numerous distractions, he passes on the film because it is "too choppy."
You want the executive to view the film in a dark room, away from distractions, surrounded by a live audience enjoying the film. You can rent a screening room at Paramount or other convenient locations, invite all the acquisition executives you can, and pack the rest of the theater with friends and relatives.
Perhaps the best venue to exhibit a picture is at an important film festival. If the film is warmly received, your bargaining position will be enhanced. Another benefit of a festival showing is that it may generate positive reviews. Most publications have a policy of only reviewing films about to be released theatrically. Films seeking distribution are not reviewed. But trade papers and selected publications review films exhibited at major festivals. A positive review can influence distributors.
When you prepare an invitation list, include only those distributors appropriate for the film. If foreign rights are taken, there is no reason to invite foreign sales companies. You are being inconsiderate by wasting their time. Likewise, do not invite an art house distributor to view a beach blanket bingo movie. As soon as the acquisition executive realizes that your film is not for him, he will depart. Do you think a stream of people leaving might adversely affect the perceptions of the rest of the audience?
3) MAKE THE BUYERS COMPETE AGAINST EACH OTHER: Screen the film at the same time for all distributors. Some executives will attempt to get an early look -- that is their job. The filmmaker's goal is to keep potential distributors intrigued. You can promise to let each see it "as soon as it is finished." They may be annoyed to see their competitors at the first screening. But this will get their competitive juices flowing.
Some diplomacy is required to orchestrate a bidding war and not alienate the bidders. You want to firmly push each potential buyer to offer their best terms while maintaining cordial relations with all. Remember, you may want to produce your next project with one of the losers.
4) DO NOT GIVE AWAY YOUR FESTIVAL PREMIER LIGHTLY: Carefully plan a festival strategy. I have seen filmmakers give away their premier to minor festivals and thereby disqualify themselves from participating in major ones. You can participate in lesser festivals later. There is little reason not to apply to a festival if you think you have a chance to participate. If you are not accepted, the buyers will not know unless you tell them.
5) SELL YOUR FILM WHEN BUYERS ARE HUNGRY FOR PRODUCT: Distributors that acquire films for foreign distribution plan their activities around a market calendar. The major film markets are 1) AFM in the fall, 2) Berlin in February, and 3) Cannes in May in Cannes, France. In addition there are a number of important television markets including NATPE in the U.S., and MIP and MIP-COM in France.
Distributors are hungriest for product before a rapidly approaching market when they do not have enough new inventory. A distributor may spend $90,000 or more to attend Cannes, and if it appears the company will have nothing new to sell, panic sets in.. This is the best time to approach a distributor. Do not wait until a week before a market, however, because you need to give distributors enough time to prepare for it. They may need to create a trailer, one-sheet, poster, screeners and advertising. The bumper editions of the trade papers have an ad deadline that is 3-4 weeks before a market. These expanded editions contain product listings by distributor, as well as extensive advertising. The best time to approach distributors is 60-90 days before a market. Assuming a distributor wants your film, it may take a month or more to negotiate the deal.
PROTECTING YOUR INTERESTS
Investigate the Distributor
Always check the track record and experience of potential distributors. Industry insiders know the reputations of executives and their companies. It is newcomers who are most likely to be taken advantage of.
Ask a prospective distributor to send you their press kit. It will likely contain one-sheets from the films they have distributed. Examine the credits. Track down the filmmakers. If you cannot find them, simply ask the distributor for a list of all the filmmakers they have done business with over the past two years. Call the filmmakers. Ask them specific questions: Did they receive timely producer reports? Have they been paid what they are due? Did the distributor spend the promotional dollars promised?
I have established the Filmmaker's Clearinghouse on my website (www.marklitwak.com). The Clearinghouse provides filmmakers with information on distributors similar to what the Better Business Bureau reports on merchants.
PRINCIPAL TERMS OF A DISTRIBUTION AGREEMENT
Territory
The territory is the country or region where the distributor may exploit the film. Worldwide rights mean that the distributor has the right to distribute the film in any country in the world. Some distributors go further and seek rights throughout the "Universe." To my knowledge, no sales have been made to moviegoers on other planets. I once kidded a distribution executive that it was silly to ask for such rights. He conceded that it was unlikely his company would ever need rights beyond Earth. Several weeks later, however, he showed me a fax he had received from NASA asking for permission to exhibit one of his films on the Space Shuttle.
Independent filmmakers frequently enter into more than one distribution deal.
Rights are typically divided into two territories: Domestic and Foreign. Domestic is the United States and English-speaking Canada. Sometimes it may include all of Canada. It may include U.S. territories, possession's & military bases. Foreign rights are usually defined as the rest of the world.
As a general rule, filmmakers should only grant a distributor rights to territories they directly service. Few distributors, other than major studios, serve both the foreign and domestic market. Even the majors use sub distributors in smaller territories. Nevertheless, distributors often try to acquire as much territory and media as they can. They will lay off rights on sub distributors, and take a fee for serving as the middle man.
Most companies that distribute domestically do not participate in international film markets. If you grant such a distributor worldwide rights, they will make a deal with a foreign distributor to handle international sales. This foreign sales company will deduct a distribution fee for its services, and from the remaining amount, the domestic distributor may take a fee as well.
This is not to say that you should never allow a distributor to use sub-distributors. But one needs to understand the kind of distributor you are dealing with, and how it plans to exploit your film. Filmmakers should always determine which media and territories a distributor handles itself, and which it lays off on other companies. Labels can be confusing. Some distributors who sell films internationally call themselves "foreign sales agents." Others prefer to be known as "international distributors." The problem of double-distribution fees can be ameliorated by placing caps on the total fees the distributor and sub-distributors may take.
Most indie filmmakers contract with a foreign sales agent, or international distributor, to take their film to the major international markets. The filmmaker will also contract with one or more domestic companies. If the film does not have any name-actors in the cast, the filmmaker may not be able to obtain a domestic theatrical release. In such a situation, the filmmaker will contract with companies that serve the television and home video markets. Care must be taken in structuring these deals so that their terms do not conflict.
Filmmakers may benefit by contracting with more than one distributor. First, the filmmaker is not putting all his eggs in one basket. If he has one distributor, and it goes bankrupt, all potential revenue is affected. Second, by using different distributors, expenses in one territory will not be cross-collateralized against revenues from another.
When expenses are cross-collateralized, expenses and revenue from different territories are pooled. For example, suppose a film generates revenue of one million dollars abroad. The distributor has incurred $100,000 in recoupable expenses. The distributor is entitled to retain 20% of gross revenues, or $200,000, as a distribution fee. The remaining $700,000 is the filmmaker's share of revenue.
But suppose that in the domestic territory, this film generated 1 million dollars in revenue, and incurred expenses and distribution fees of $1.5 million. So on the domestic side of the ledger, the distributor has a net loss. If the filmmaker has a single distributor for foreign and domestic territories, the distributor can recoup its $500,000 domestic loss from the foreign profit.
Not only can expenses from one territory be crossed against others, but expenses in one media can be crossed against revenues from another. In many instances, a distributor will lose money on a picture's theatrical release and will want to recoup those losses from revenue generated from home video and television.
The remainder of this articles is posted on the Entertainment Law Resources website: www.marklitwak.com
Full Article: http://www.marklitwak.com/articles/film/indie_filmmaker.html
The film will be released in other cities in January.
The Matador website: http://www.miramax.com/matador/
Tactics and Strategy in Negotiating the Distribution Deal
By Mark Litwak
Attorney At Law
Many independent filmmakers are surprised at the amount of effort and skill required to secure an equitable distribution agreement. With the dramatic increase in independent production, it is apparent that many filmmakers have mastered the skills needed to secure the money and equipment needed to produce a film. The major obstacle facing many filmmakers is how to secure distribution for their motion picture.
This article explores the tactics and strategies that can be used to obtain a favorable distribution deal for the indie filmmaker.
In negotiating the distribution deal, the relative bargaining power of the parties is determined by the perceived desirability of the film and how much risk each party is willing to take. With a major studio project, the studio has often borne most, if not all, the financial risk. Typically, the studio pays for development, production and distribution. The director/producer is employed by the studio, receives a fee for his services, and may be entitled to a small share of net profits. "Net Profits," however, are defined so that there is little likelihood the employee will ever realize anything from this "back-end" compensation.
On the other hand, when a film is developed and produced by an independent Filmmaker, as an entrepreneur the filmmaker bears the risk of failure. Often the distributor will not have any involvement in the development of the script, or the production of the film. Since the distributor screens a completed work before deciding whether to acquire it, the distributor assumes less risk. The distributor knows exactly what it is obtaining. Consequently, if the Filmmaker has skillfully made a script into an appealing film, the filmmaker may be able to obtain a better deal. Under such a film acquisition agreement, the distributor may agree to share revenue according to a formula that will actually generate monies on the back end, assuming the distributor accounts fairly. If the filmmaker stumbles and creates a film with little appeal, however, no distributor may acquire it, and the loss will be borne entirely by the filmmaker and his investors.
INCREASING YOUR LEVERAGE
When a distributor negotiates to acquire film rights, the distributor often has more clout than the filmmaker. This is a vulnerable position for the filmmaker. The filmmaker, or his representative, must know how to orchestrate the release of the film into the marketplace to achieve maximum leverage. This may entail generating competition through positive word of mouth within the industry. Such "buzz" or "heat" can be encouraged by filmmakers who work the festival circuit and mount a campaign on behalf of their film.
From the filmmaker's point of view, one will obtain a better deal if there is more than one distributor competing for the film. It is not difficult to alert acquisition executives to the existence of a film. Once a start date has been announced, filmmakers begin receiving calls. Acquisition executives track the progress of each film so that they can try to view it as soon as it is completed, and before their competitors see it.
To ensure that acquisition executives are aware of a film, one can send a press release announcing the project to the trade papers and magazines (Hollywood Reporter: (213) 525-2000, Daily Variety: (213) 857-6600, FILM MAKER: 213-932-6060, Moviemaker: 310-234-9234, The Independent: 212-807-1400). These publications will include your film in their listings of motion pictures in development, pre-production and production. Likewise, one should alert Film Finders at (310) 657-6397, a company that tracks films for many distributors.
Here are some other ways to create competition and maximize your leverage:
1) NO SNEAK PREVIEWS: Do not show your film to distributors until it is complete. Executives may ask to view a rough cut. They will assure the filmmaker, "Do not worry. We are professionals, we can extrapolate and envision what the film will look like with sound and titles." Do not believe them. Most people cannot extrapolate. They will view an unfinished film and think it amateurish. First impressions last. The community of acquisition executives is small, and they frequently mingle at screenings and festivals where they compare notes. One acquisition executive bad-mouthing your film, can cause a lot of damage.
The only reason to show an unfinished is if one is desperate to raise funds to complete it. The terms one can secure under these circumstances will be less advantageous than what could obtain for a finished film. If you must show a work-in-progress, exhibit it on a Moviola or flatbed editing table. People have lower expectations watching a film on an editing console than when it is projected in a theater. If you must send out cassettes of an unfinished film, prominently label it so that your viewers are reminded that they are seeing a work-in-progress.
2) SCREEN IT BEFORE A CROWD: It is usually better to invite executives to a screening than to send them a videocassette. If you send a tape to a busy executive, he will pop it in his VCR. Ten minutes later the phone rings and he hits the pause button. Then he watches another ten minutes until his secretary interrupts. After numerous distractions, he passes on the film because it is "too choppy."
You want the executive to view the film in a dark room, away from distractions, surrounded by a live audience enjoying the film. You can rent a screening room at Paramount or other convenient locations, invite all the acquisition executives you can, and pack the rest of the theater with friends and relatives.
Perhaps the best venue to exhibit a picture is at an important film festival. If the film is warmly received, your bargaining position will be enhanced. Another benefit of a festival showing is that it may generate positive reviews. Most publications have a policy of only reviewing films about to be released theatrically. Films seeking distribution are not reviewed. But trade papers and selected publications review films exhibited at major festivals. A positive review can influence distributors.
When you prepare an invitation list, include only those distributors appropriate for the film. If foreign rights are taken, there is no reason to invite foreign sales companies. You are being inconsiderate by wasting their time. Likewise, do not invite an art house distributor to view a beach blanket bingo movie. As soon as the acquisition executive realizes that your film is not for him, he will depart. Do you think a stream of people leaving might adversely affect the perceptions of the rest of the audience?
3) MAKE THE BUYERS COMPETE AGAINST EACH OTHER: Screen the film at the same time for all distributors. Some executives will attempt to get an early look -- that is their job. The filmmaker's goal is to keep potential distributors intrigued. You can promise to let each see it "as soon as it is finished." They may be annoyed to see their competitors at the first screening. But this will get their competitive juices flowing.
Some diplomacy is required to orchestrate a bidding war and not alienate the bidders. You want to firmly push each potential buyer to offer their best terms while maintaining cordial relations with all. Remember, you may want to produce your next project with one of the losers.
4) DO NOT GIVE AWAY YOUR FESTIVAL PREMIER LIGHTLY: Carefully plan a festival strategy. I have seen filmmakers give away their premier to minor festivals and thereby disqualify themselves from participating in major ones. You can participate in lesser festivals later. There is little reason not to apply to a festival if you think you have a chance to participate. If you are not accepted, the buyers will not know unless you tell them.
5) SELL YOUR FILM WHEN BUYERS ARE HUNGRY FOR PRODUCT: Distributors that acquire films for foreign distribution plan their activities around a market calendar. The major film markets are 1) AFM in the fall, 2) Berlin in February, and 3) Cannes in May in Cannes, France. In addition there are a number of important television markets including NATPE in the U.S., and MIP and MIP-COM in France.
Distributors are hungriest for product before a rapidly approaching market when they do not have enough new inventory. A distributor may spend $90,000 or more to attend Cannes, and if it appears the company will have nothing new to sell, panic sets in.. This is the best time to approach a distributor. Do not wait until a week before a market, however, because you need to give distributors enough time to prepare for it. They may need to create a trailer, one-sheet, poster, screeners and advertising. The bumper editions of the trade papers have an ad deadline that is 3-4 weeks before a market. These expanded editions contain product listings by distributor, as well as extensive advertising. The best time to approach distributors is 60-90 days before a market. Assuming a distributor wants your film, it may take a month or more to negotiate the deal.
PROTECTING YOUR INTERESTS
Investigate the Distributor
Always check the track record and experience of potential distributors. Industry insiders know the reputations of executives and their companies. It is newcomers who are most likely to be taken advantage of.
Ask a prospective distributor to send you their press kit. It will likely contain one-sheets from the films they have distributed. Examine the credits. Track down the filmmakers. If you cannot find them, simply ask the distributor for a list of all the filmmakers they have done business with over the past two years. Call the filmmakers. Ask them specific questions: Did they receive timely producer reports? Have they been paid what they are due? Did the distributor spend the promotional dollars promised?
I have established the Filmmaker's Clearinghouse on my website (www.marklitwak.com). The Clearinghouse provides filmmakers with information on distributors similar to what the Better Business Bureau reports on merchants.
PRINCIPAL TERMS OF A DISTRIBUTION AGREEMENT
Territory
The territory is the country or region where the distributor may exploit the film. Worldwide rights mean that the distributor has the right to distribute the film in any country in the world. Some distributors go further and seek rights throughout the "Universe." To my knowledge, no sales have been made to moviegoers on other planets. I once kidded a distribution executive that it was silly to ask for such rights. He conceded that it was unlikely his company would ever need rights beyond Earth. Several weeks later, however, he showed me a fax he had received from NASA asking for permission to exhibit one of his films on the Space Shuttle.
Independent filmmakers frequently enter into more than one distribution deal.
Rights are typically divided into two territories: Domestic and Foreign. Domestic is the United States and English-speaking Canada. Sometimes it may include all of Canada. It may include U.S. territories, possession's & military bases. Foreign rights are usually defined as the rest of the world.
As a general rule, filmmakers should only grant a distributor rights to territories they directly service. Few distributors, other than major studios, serve both the foreign and domestic market. Even the majors use sub distributors in smaller territories. Nevertheless, distributors often try to acquire as much territory and media as they can. They will lay off rights on sub distributors, and take a fee for serving as the middle man.
Most companies that distribute domestically do not participate in international film markets. If you grant such a distributor worldwide rights, they will make a deal with a foreign distributor to handle international sales. This foreign sales company will deduct a distribution fee for its services, and from the remaining amount, the domestic distributor may take a fee as well.
This is not to say that you should never allow a distributor to use sub-distributors. But one needs to understand the kind of distributor you are dealing with, and how it plans to exploit your film. Filmmakers should always determine which media and territories a distributor handles itself, and which it lays off on other companies. Labels can be confusing. Some distributors who sell films internationally call themselves "foreign sales agents." Others prefer to be known as "international distributors." The problem of double-distribution fees can be ameliorated by placing caps on the total fees the distributor and sub-distributors may take.
Most indie filmmakers contract with a foreign sales agent, or international distributor, to take their film to the major international markets. The filmmaker will also contract with one or more domestic companies. If the film does not have any name-actors in the cast, the filmmaker may not be able to obtain a domestic theatrical release. In such a situation, the filmmaker will contract with companies that serve the television and home video markets. Care must be taken in structuring these deals so that their terms do not conflict.
Filmmakers may benefit by contracting with more than one distributor. First, the filmmaker is not putting all his eggs in one basket. If he has one distributor, and it goes bankrupt, all potential revenue is affected. Second, by using different distributors, expenses in one territory will not be cross-collateralized against revenues from another.
When expenses are cross-collateralized, expenses and revenue from different territories are pooled. For example, suppose a film generates revenue of one million dollars abroad. The distributor has incurred $100,000 in recoupable expenses. The distributor is entitled to retain 20% of gross revenues, or $200,000, as a distribution fee. The remaining $700,000 is the filmmaker's share of revenue.
But suppose that in the domestic territory, this film generated 1 million dollars in revenue, and incurred expenses and distribution fees of $1.5 million. So on the domestic side of the ledger, the distributor has a net loss. If the filmmaker has a single distributor for foreign and domestic territories, the distributor can recoup its $500,000 domestic loss from the foreign profit.
Not only can expenses from one territory be crossed against others, but expenses in one media can be crossed against revenues from another. In many instances, a distributor will lose money on a picture's theatrical release and will want to recoup those losses from revenue generated from home video and television.
The remainder of this articles is posted on the Entertainment Law Resources website: www.marklitwak.com
Full Article: http://www.marklitwak.com/articles/film/indie_filmmaker.html
Wednesday, November 30, 2005
“Survivor” Survives Trademark Infringement Suit Brought by Beach-Themed Product Creator
The company behind Surfvivor, a trademark for beach-themed products, sued the creators of the reality television show “Survivor” for trademark infringement. Despite the confusion reported by Surfvivor that some entities had in the marketplace, the Federal District Court granted summary judgment in favor of “Survivor” and dismissed the case. The Court found that the marks were not similar enough to cause consumer confusion.
Surfvivor appealed immediately, but its action did not survive for long. The Court of Appeals affirmed the District Court’s ruling. The Court of Appeal based its opinion on two strands of thought. First, the Court concluded that no actual confusion existed between the two trademarks. If nearly all of the customers and retailers had no confusion, then “customers were not likely to associate the two products or conclude [they] came from the same source.”
Second, the Court reasoned that Surfvivor did not suffer any damages. For example, no merchants stopped doing business with Surfvivor due to any confusion.
Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 2005 U.S.App.LEXIS 7688 (9th Cir. 2005).
Right of Publicity Does Not Cover the Same Subject Matter as Copyright
A model, June Toney, signed a contract for her photo to be used by Ultra Sheen Supreme Shampoo. The contract ended in November 2005, but Ultra Sheen continued to use Toney’s photo. Toney brought suit under an Illinois right of publicity statute.
The Federal District Court dismissed her suit based on a section of the Federal Copyright Act that preempts state law claims if the subject matter is covered under the Copyright Act itself. The Court of Appeals affirmed the dismissal.
But Toney was not through. She petitioned the Court of Appeals for a rehearing and the Court reversed its previous ruling. The Court reasoned that the Illinois statute protects a person’s “identity,” while the Copyright Act applies to creative works that are fixed in a tangible medium. The Court wrote, “Toney’s identity is not fixed in a tangible medium of expression.” The subject matter was not the same, and therefore not covered under the Copyright Act.
Furthermore, the Court found another distinction. The Illinois statute protects the right to control the commercial value of a person’s identity. The Copyright Act, in contrast, protects the right to reproduce and perform works.
The case was remanded to the District Court to proceed on the right of publicity claim.
Toney v. L’Oreal USA, Inc., 406 F.3d 905, 2005 U.S.App.LEXIS 7897 (7th Cir. 2005).
Surfvivor appealed immediately, but its action did not survive for long. The Court of Appeals affirmed the District Court’s ruling. The Court of Appeal based its opinion on two strands of thought. First, the Court concluded that no actual confusion existed between the two trademarks. If nearly all of the customers and retailers had no confusion, then “customers were not likely to associate the two products or conclude [they] came from the same source.”
Second, the Court reasoned that Surfvivor did not suffer any damages. For example, no merchants stopped doing business with Surfvivor due to any confusion.
Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 2005 U.S.App.LEXIS 7688 (9th Cir. 2005).
Right of Publicity Does Not Cover the Same Subject Matter as Copyright
A model, June Toney, signed a contract for her photo to be used by Ultra Sheen Supreme Shampoo. The contract ended in November 2005, but Ultra Sheen continued to use Toney’s photo. Toney brought suit under an Illinois right of publicity statute.
The Federal District Court dismissed her suit based on a section of the Federal Copyright Act that preempts state law claims if the subject matter is covered under the Copyright Act itself. The Court of Appeals affirmed the dismissal.
But Toney was not through. She petitioned the Court of Appeals for a rehearing and the Court reversed its previous ruling. The Court reasoned that the Illinois statute protects a person’s “identity,” while the Copyright Act applies to creative works that are fixed in a tangible medium. The Court wrote, “Toney’s identity is not fixed in a tangible medium of expression.” The subject matter was not the same, and therefore not covered under the Copyright Act.
Furthermore, the Court found another distinction. The Illinois statute protects the right to control the commercial value of a person’s identity. The Copyright Act, in contrast, protects the right to reproduce and perform works.
The case was remanded to the District Court to proceed on the right of publicity claim.
Toney v. L’Oreal USA, Inc., 406 F.3d 905, 2005 U.S.App.LEXIS 7897 (7th Cir. 2005).
Friday, November 18, 2005
“Wife Swap” Producer May Proceed with Copyright Infringement Claim Against “Trading Spouses”
RDF Media produced a reality television show called “Wife Swap” that was aired on ABC in May 2004. Shortly after its airing, Fox Broadcasting ran a similar show called “Trading Spouses.” RDF brought suit based on two claims: copyright and trade dress infringement. Fox filed a motion to dismiss all of RDF’s claims.
In response to Fox’s motion, the Federal District Court Judge dismissed RDF’s trade dress claim because a television show itself could not be a trademark. The Court reasoned, “Trademark is concerned with the protection of symbols or elements; it does not protect the content of a creative work of artistic expression as a trademark for itself.”
RDG’s copyright claim withstood Fox’s motion to dismiss. RDF had filed the complaint before all of its episodes had been registered with the Copyright Office. The Court concluded that because the errant registrations were filed by the time the motion was heard no basis existed for dismissing the copyright claim.
RDF Media Limited v. Fox Broadcasting Company, 372 F. Supp.2d 556, 2005 U.S.Dist.LEXIS 12923 (C.D.Cal. 2005).
San Francisco’s Film Art’s Foundation to offer Self Defense Seminar December 10
Writers, directors, and producers must understand their legal rights and how to defend themselves against exploitation by production and distribution companies. In this intensive seminar, filmmakers learn how to anticipate problems before they arise in negotiations and create incentives that encourage companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an un-resolvable dispute, participants learn what remedies are available to enforce their rights.
Mark Litwak is a veteran entertainment attorney with offices in Beverly Hills, California. He writes a monthly syndicated column that appears on the Film Arts Web site as "The Litwak Files," and is the author of six books, including Reel Power, The Struggle for Influence and Success in the New Hollywood, Courtroom Crusaders, Dealmaking in the Film and Television Industry (winner of the 1995 Krazna-Krausz Book Award), Contracts for the Film and Television Industry, and Risky Business. He is the author of the popular CD-ROM program Movie Magic Contracts. In addition, Litwak is a producer's rep, assisting filmmakers in the financing, marketing and distribution of their films.
Self-Defense for Independent Filmmakers: Protecting Your Legal Rights
Sat Dec 10th from 9:00 AM to 5:00 PM
$95/Filmmaker-level members; $145/others.
Film Arts Foundation
145 9th Street, #101
San Francisco, CA, 94103
Call (415) 552-8760 to sign up or for questions or email education@filmarts.org
In response to Fox’s motion, the Federal District Court Judge dismissed RDF’s trade dress claim because a television show itself could not be a trademark. The Court reasoned, “Trademark is concerned with the protection of symbols or elements; it does not protect the content of a creative work of artistic expression as a trademark for itself.”
RDG’s copyright claim withstood Fox’s motion to dismiss. RDF had filed the complaint before all of its episodes had been registered with the Copyright Office. The Court concluded that because the errant registrations were filed by the time the motion was heard no basis existed for dismissing the copyright claim.
RDF Media Limited v. Fox Broadcasting Company, 372 F. Supp.2d 556, 2005 U.S.Dist.LEXIS 12923 (C.D.Cal. 2005).
San Francisco’s Film Art’s Foundation to offer Self Defense Seminar December 10
Writers, directors, and producers must understand their legal rights and how to defend themselves against exploitation by production and distribution companies. In this intensive seminar, filmmakers learn how to anticipate problems before they arise in negotiations and create incentives that encourage companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an un-resolvable dispute, participants learn what remedies are available to enforce their rights.
Mark Litwak is a veteran entertainment attorney with offices in Beverly Hills, California. He writes a monthly syndicated column that appears on the Film Arts Web site as "The Litwak Files," and is the author of six books, including Reel Power, The Struggle for Influence and Success in the New Hollywood, Courtroom Crusaders, Dealmaking in the Film and Television Industry (winner of the 1995 Krazna-Krausz Book Award), Contracts for the Film and Television Industry, and Risky Business. He is the author of the popular CD-ROM program Movie Magic Contracts. In addition, Litwak is a producer's rep, assisting filmmakers in the financing, marketing and distribution of their films.
Self-Defense for Independent Filmmakers: Protecting Your Legal Rights
Sat Dec 10th from 9:00 AM to 5:00 PM
$95/Filmmaker-level members; $145/others.
Film Arts Foundation
145 9th Street, #101
San Francisco, CA, 94103
Call (415) 552-8760 to sign up or for questions or email education@filmarts.org
Monday, November 07, 2005
NALIP AND SAN JUAN CINEMAFEST SPONSOR FREE PANELS ON PITCHING, FINANCING AND DISTRIBUTING FILMS
The Puerto Rico chapter of the National Association of Latino Independent Producers Association (NALIP), in conjunction with the San Juan Cinemafest and the Puerto Rico Film Corporation, will sponsor a full day of free panels on feature film pitching, finance, and distribution for indie filmmakers, beginning at 10 a.m. on Thursday, November 10, at the Normandie Hotel in San Juan, according to Frances Lausell, president of NALIP-PR.
Participants will include NALIP Executive Director and independent producer Kathryn Galán, veteran entertainment attorney and producers’ representative Mark Litwak, long-time personal manager and award-winning producer Marilyn Atlas, financing executive Pamela Peak, and Venevisión International Film and Theater Division Manager Julio Noriega.
Kathryn Galán has established NALIP as the preeminent national Latino media organization in the U.S., dedicated to increasing the quality and quantity of Latino/a film, television and documentary projects by supporting Latino/a writers, producers, directors and creative talent and advocating on their behalf. NALIP runs regional programs plus four national Signature programs: the Latino Writers Lab™ held in New York each spring and Santa Monica, California each fall; the intensive 10-day Latino Producers Academy™ held in Tucson, Arizona each summer; a national Conference that welcomes over 600 makers and funders each spring, and the Latino Media Resource Guide™, the go-to source for information on Latino directors, writers, producers, craftspersons, funders, diversity opportunities, distributors, and film programs.
Mark Litwak’s entertainment law practice includes work in the areas of copyright, trademark, contract, multimedia law, intellectual property, and book publishing (“Dealmaking in the Film and Television Industry,” “Risky Business: Financing and Distribution of Independent Film”). As a producers’ rep, Litwak assists filmmakers in the marketing and distribution of their films through such renowned film festivals as Cannes, Toronto, Telluride, and others. At this year’s Sundance Film Festival, three of his clients had films acquired for distribution: HUSTLE & FLOW, which won the Audience Award (Paramount), THE MATADOR (Miramax), and MARILYN HOTCHKISS BALLROOM DANCING AND CHARM SCHOOL (Goldwyn).
Equally at home in the worlds of film, television, and live theater, Marilyn Atlas is a founding member of Women in Film’s Luminas Committee, which supports the portrayal of women in non-stereotypical roles in film and television, and is committed to finding projects that reflect diversity and non-stereotypical characters. Among her credits as a film producer are REAL WOMEN HAVE CURVES for HBO, which won the Audience Award at the Sundance Film Festival, A CERTAIN DESIRE, starring Sam Waterston, and ECHOES, which won the Gold Award at the Texas International Film Festival.
Julio Noriega heads up the film and theatrical division for Venevisión International, which over the past 30 years has been one of the most important providers of Spanish language programming for Latin America and the world, positioning its productions in more than 20 languages and currently reaching 97% of the entire U.S. Latino population, thanks to its association with Univisión Communications.
“NALIP-PR’s mission is to help develop and expand Puerto Rico’s film industry and film community,” said Lausell. “By organizing activities such as this one, we hope to provide an opportunity for local filmmakers to obtain practical information directly from working professionals in the industry, as well as a giving them a chance to network and establish contacts which could prove of great value in the future.”
Contact: Frances Lausell
Phone: 787-268-0063
Cell Phone: 787-640-5290
E-mail: isladigital@aol.com
DEAL MAKING PUBLISHED IN KOREAN LANGUAGE
Mark Litwak's book "Dealmaking in the Film and Television Industry, 2nd Edition" has been republished in Korea by Easy Books. We have a limited number of these books for sale at $25 plus shipping. Call (310) 859 9595 if you would like to purchase one.
Dealmaking is the first self-defense book for everyone working in the film and television industry, addressing a general, non-attorney readership, it is a fascinating, highly accessible and practical guide to current entertainment law peculiarities and "creative" practices. Armed with this book, filmmakers can save themselves thousands of dollars in legal fees as they navigate the entertainment business's shark-infested waters. Whether you are a professional or wannabe producer, writer, director, or actor, this book can help you make the most of your business dealings while steering you clear of contractual traps. The second edition of this popular book contains hundreds of updates and revisions of the first edition and includes two new chapters: Legal Remedies and Retaining Attorneys, Agents, and Managers.
Participants will include NALIP Executive Director and independent producer Kathryn Galán, veteran entertainment attorney and producers’ representative Mark Litwak, long-time personal manager and award-winning producer Marilyn Atlas, financing executive Pamela Peak, and Venevisión International Film and Theater Division Manager Julio Noriega.
Kathryn Galán has established NALIP as the preeminent national Latino media organization in the U.S., dedicated to increasing the quality and quantity of Latino/a film, television and documentary projects by supporting Latino/a writers, producers, directors and creative talent and advocating on their behalf. NALIP runs regional programs plus four national Signature programs: the Latino Writers Lab™ held in New York each spring and Santa Monica, California each fall; the intensive 10-day Latino Producers Academy™ held in Tucson, Arizona each summer; a national Conference that welcomes over 600 makers and funders each spring, and the Latino Media Resource Guide™, the go-to source for information on Latino directors, writers, producers, craftspersons, funders, diversity opportunities, distributors, and film programs.
Mark Litwak’s entertainment law practice includes work in the areas of copyright, trademark, contract, multimedia law, intellectual property, and book publishing (“Dealmaking in the Film and Television Industry,” “Risky Business: Financing and Distribution of Independent Film”). As a producers’ rep, Litwak assists filmmakers in the marketing and distribution of their films through such renowned film festivals as Cannes, Toronto, Telluride, and others. At this year’s Sundance Film Festival, three of his clients had films acquired for distribution: HUSTLE & FLOW, which won the Audience Award (Paramount), THE MATADOR (Miramax), and MARILYN HOTCHKISS BALLROOM DANCING AND CHARM SCHOOL (Goldwyn).
Equally at home in the worlds of film, television, and live theater, Marilyn Atlas is a founding member of Women in Film’s Luminas Committee, which supports the portrayal of women in non-stereotypical roles in film and television, and is committed to finding projects that reflect diversity and non-stereotypical characters. Among her credits as a film producer are REAL WOMEN HAVE CURVES for HBO, which won the Audience Award at the Sundance Film Festival, A CERTAIN DESIRE, starring Sam Waterston, and ECHOES, which won the Gold Award at the Texas International Film Festival.
Julio Noriega heads up the film and theatrical division for Venevisión International, which over the past 30 years has been one of the most important providers of Spanish language programming for Latin America and the world, positioning its productions in more than 20 languages and currently reaching 97% of the entire U.S. Latino population, thanks to its association with Univisión Communications.
“NALIP-PR’s mission is to help develop and expand Puerto Rico’s film industry and film community,” said Lausell. “By organizing activities such as this one, we hope to provide an opportunity for local filmmakers to obtain practical information directly from working professionals in the industry, as well as a giving them a chance to network and establish contacts which could prove of great value in the future.”
Contact: Frances Lausell
Phone: 787-268-0063
Cell Phone: 787-640-5290
E-mail: isladigital@aol.com
DEAL MAKING PUBLISHED IN KOREAN LANGUAGE
Mark Litwak's book "Dealmaking in the Film and Television Industry, 2nd Edition" has been republished in Korea by Easy Books. We have a limited number of these books for sale at $25 plus shipping. Call (310) 859 9595 if you would like to purchase one.
Dealmaking is the first self-defense book for everyone working in the film and television industry, addressing a general, non-attorney readership, it is a fascinating, highly accessible and practical guide to current entertainment law peculiarities and "creative" practices. Armed with this book, filmmakers can save themselves thousands of dollars in legal fees as they navigate the entertainment business's shark-infested waters. Whether you are a professional or wannabe producer, writer, director, or actor, this book can help you make the most of your business dealings while steering you clear of contractual traps. The second edition of this popular book contains hundreds of updates and revisions of the first edition and includes two new chapters: Legal Remedies and Retaining Attorneys, Agents, and Managers.
Wednesday, October 26, 2005
Suit Brought against WGA
Writer-director William Richert has sued the Writers Guild of America West in Los Angeles Superior Court over its practice of collecting foreign levies for writers who aren't WGA members. Richert claims that the WGA has been accepting foreign collections in 1991 on monies due copyright holders such as taxes on video rentals and purchases of blank videocassettes.
The suit alleges that the WGA has no authority to collect the funds for non-members, hasn't communicated that information to the affected writers and hasn't paid them.
Richert is seeking class-action status for the suit. WGA West president Daniel Petrie Jr. told Daily Variety that the guild's authority to collect the funds for non-members stems from the initial agreements it struck in the late 1980s with the collection agencies.
According to Daily Variety, the WGA currently has $19 million in foreign levies in its accounts and another $4 million of undeliverable funds from the levies.
Hampton’s Film Festival Award Winner
Congratulations to our clients’ producers Jon Stern and Ben Odell and writer/director Stefan C. Shafer whose film, Confess, premiered at the Hampton’s Film Festival in New York October 21. Confess won the Zicherman Family Foundation Award for Best Screenplay.
Risky Business Seminar at UCLA Oct. 29-30
Mark will present his "Risky Business: Financing & Distributing Independent Films" seminar at at UCLA on Oct. 29-30. Those who attend this comprehensive two-day seminar will learn how independent films are financed and distributed. Topics include organizing your company, raising financing via pre-sales, debt and limited partnerships, negotiating tactics, principal terms of the acquisition/distribution agreement, cross-collateralization and creative accounting. Particular attention is paid to how producers and filmmakers can protect their interests by watering down warranties, getting added to the E& O policy, using lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses.
Women in Film Summit October 29- November 1.
Women in Film & Television International Summit October 29 to November 1, 2005.
Mark will speak at the 9 AM panel on Intellectual Property and Copyright issues at WIF Summit. Women In Film Los Angeles will host the 2005 The Summit provides a forum for filmmakers from all over the world to network, greet old friends and forge new relationships. There will be four days of panels, lunches, cocktail parties, screenings and special events with all activities being held at the Park Hyatt Hotel on Avenue of the Stars in Century City.
Women In Film & Television International (WIFTI) is a global network comprised of some 36 Women In Film Chapters worldwide and over 10,000 members dedicated to advancing professional development and achievement for women working in all areas of film, video, and other screen based media.
Additional info at: http://www.wif.org/info_page.cfm?id=18
The suit alleges that the WGA has no authority to collect the funds for non-members, hasn't communicated that information to the affected writers and hasn't paid them.
Richert is seeking class-action status for the suit. WGA West president Daniel Petrie Jr. told Daily Variety that the guild's authority to collect the funds for non-members stems from the initial agreements it struck in the late 1980s with the collection agencies.
According to Daily Variety, the WGA currently has $19 million in foreign levies in its accounts and another $4 million of undeliverable funds from the levies.
Hampton’s Film Festival Award Winner
Congratulations to our clients’ producers Jon Stern and Ben Odell and writer/director Stefan C. Shafer whose film, Confess, premiered at the Hampton’s Film Festival in New York October 21. Confess won the Zicherman Family Foundation Award for Best Screenplay.
Risky Business Seminar at UCLA Oct. 29-30
Mark will present his "Risky Business: Financing & Distributing Independent Films" seminar at at UCLA on Oct. 29-30. Those who attend this comprehensive two-day seminar will learn how independent films are financed and distributed. Topics include organizing your company, raising financing via pre-sales, debt and limited partnerships, negotiating tactics, principal terms of the acquisition/distribution agreement, cross-collateralization and creative accounting. Particular attention is paid to how producers and filmmakers can protect their interests by watering down warranties, getting added to the E& O policy, using lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses.
Women in Film Summit October 29- November 1.
Women in Film & Television International Summit October 29 to November 1, 2005.
Mark will speak at the 9 AM panel on Intellectual Property and Copyright issues at WIF Summit. Women In Film Los Angeles will host the 2005 The Summit provides a forum for filmmakers from all over the world to network, greet old friends and forge new relationships. There will be four days of panels, lunches, cocktail parties, screenings and special events with all activities being held at the Park Hyatt Hotel on Avenue of the Stars in Century City.
Women In Film & Television International (WIFTI) is a global network comprised of some 36 Women In Film Chapters worldwide and over 10,000 members dedicated to advancing professional development and achievement for women working in all areas of film, video, and other screen based media.
Additional info at: http://www.wif.org/info_page.cfm?id=18
Thursday, October 13, 2005
Confess to premiere at the Hampton's Festival
Congratulations to our clients, director Stefan Schaefer, and producers Jonathan Stern and Benjamin Odell.
Their film, CONFESS, will premiere as part of the narrative competition at the Hamptons International Film Festival.
CONFESS charts the exploits of disillusioned ex-hacker Terell Lessor (Eugene Byrd). Employing strategically placed spy-cams, he captures compromising footage of those who slighted him in the past, broadcasting edits via the internet. Recognizing the power of this model, and working in tandem with accomplice Olivia (Ali Larter), he targets CEO's, politicians, and members of the power elite. Soon Terell's every action is front-page news, law enforcement has labeled him a new breed of terrorist, and the movement he spawned is spiraling out of control.
CONFESS will be screening at:
1) 9:00 p.m. on Friday, October 21, 2005 at the UA 4 Theater in East Hampton.
2) 1:00 p.m. on Saturday, October 22, 2005 at the UA 6 Theater in East Hampton.
3) 7:00 p.m. on Saturday, October 22, 2005 at the Panasonic VIP screening room at the South Hampton Inn.
For more information click on
http://www.hamptonsfilmfest.org/
CRAZY LOVE PREMIERS AT HOLLYWOOD FILM FESTIVAL
CRAZY LOVE will premier at ArcLight Cinemas at 6360 West Sunset Boulevard at the Hollywood Film festival on October 22, 2005, at 2 p.m. (Parking entrance on Ivar).
Tickets for CRAZY LOVE are now available through the ArcLight web site.
http://www.arclightcinemas.com
DEAL MAKING PUBLISHED IN KOREAN LANGUAGE
Mark Litwak's book "Dealmaking in the Film and Television Industry, 2nd Edition" has been republished in Korea by Easy Books.
Dealmaking is the first self-defense book for everyone working in the film and television industry, addressing a general, non-attorney readership, it is a fascinating, highly accessible and practical guide to current entertainment law peculiarities and "creative" practices. Armed with this book, filmmakers can save themselves thousands of dollars in legal fees as they navigate the entertainment business's shark-infested waters. Whether you are a professional or wannabe producer, writer, director, or actor, this book can help you make the most of your business dealings while steering you clear of contractual traps. The second edition of this popular book contains hundreds of updates and revisions of the first edition and includes two new chapters: Legal Remedies and Retaining Attorneys, Agents, and Managers.
Their film, CONFESS, will premiere as part of the narrative competition at the Hamptons International Film Festival.
CONFESS charts the exploits of disillusioned ex-hacker Terell Lessor (Eugene Byrd). Employing strategically placed spy-cams, he captures compromising footage of those who slighted him in the past, broadcasting edits via the internet. Recognizing the power of this model, and working in tandem with accomplice Olivia (Ali Larter), he targets CEO's, politicians, and members of the power elite. Soon Terell's every action is front-page news, law enforcement has labeled him a new breed of terrorist, and the movement he spawned is spiraling out of control.
CONFESS will be screening at:
1) 9:00 p.m. on Friday, October 21, 2005 at the UA 4 Theater in East Hampton.
2) 1:00 p.m. on Saturday, October 22, 2005 at the UA 6 Theater in East Hampton.
3) 7:00 p.m. on Saturday, October 22, 2005 at the Panasonic VIP screening room at the South Hampton Inn.
For more information click on
http://www.hamptonsfilmfest.org/
CRAZY LOVE PREMIERS AT HOLLYWOOD FILM FESTIVAL
CRAZY LOVE will premier at ArcLight Cinemas at 6360 West Sunset Boulevard at the Hollywood Film festival on October 22, 2005, at 2 p.m. (Parking entrance on Ivar).
Tickets for CRAZY LOVE are now available through the ArcLight web site.
http://www.arclightcinemas.com
DEAL MAKING PUBLISHED IN KOREAN LANGUAGE
Mark Litwak's book "Dealmaking in the Film and Television Industry, 2nd Edition" has been republished in Korea by Easy Books.
Dealmaking is the first self-defense book for everyone working in the film and television industry, addressing a general, non-attorney readership, it is a fascinating, highly accessible and practical guide to current entertainment law peculiarities and "creative" practices. Armed with this book, filmmakers can save themselves thousands of dollars in legal fees as they navigate the entertainment business's shark-infested waters. Whether you are a professional or wannabe producer, writer, director, or actor, this book can help you make the most of your business dealings while steering you clear of contractual traps. The second edition of this popular book contains hundreds of updates and revisions of the first edition and includes two new chapters: Legal Remedies and Retaining Attorneys, Agents, and Managers.
Tuesday, October 04, 2005
Elizabeth Taylor Wins Lawsuit
Elizabeth Taylor’s Van Gogh painting “Vue de l’Asile et de la Chapelle de Saint Remy” was the subject of a recent suit by the heirs of a prior owner seeking to recover the painting. Margarete Mauthner’s heirs sued Taylor in federal court, 41 years after she purchased the painting from Sotheby’s in 1963. Mauthner owned the painting from 1914 until 1939, when she fled Nazi Germany. Her painting was seized by the Nazis and ended up in Sotheby’s Auction House in London in 1963, which sold it to Taylor.
The heirs claimed that Sotheby’s gave Taylor inconsistent and conflicting information about the history of the picture, which should have alerted Taylor that the validity of the painting’s ownership was in question. This issue was never decided, however, because the Judge dismissed both legal theories the heirs brought forth. The first theory was based on traditional state law based claims for conversion and restitution methods California state law for regaining possession. These claims were barred by the statute of limitations with regards to recovering stolen property, which starts when the purchaser, in this case Taylor, takes possession of the property. She bought the painting in 1963, and therefore the deadline in California to file suit was 1966.
The second theory the heirs relied on was based on the the federal Holocaust Victims Redress Act, the Nazi War Crimes Disclosure Act, and the “findings and declarations of the California legislature.” The Judge reasoned that none of these sources created a basis on which to sue. Courts are reluctant to create a new cause of action Congress has not explicitly created through legislative action. Here, the legislature intended the government to help victims recover their property under current laws.
The heirs claimed that Sotheby’s gave Taylor inconsistent and conflicting information about the history of the picture, which should have alerted Taylor that the validity of the painting’s ownership was in question. This issue was never decided, however, because the Judge dismissed both legal theories the heirs brought forth. The first theory was based on traditional state law based claims for conversion and restitution methods California state law for regaining possession. These claims were barred by the statute of limitations with regards to recovering stolen property, which starts when the purchaser, in this case Taylor, takes possession of the property. She bought the painting in 1963, and therefore the deadline in California to file suit was 1966.
The second theory the heirs relied on was based on the the federal Holocaust Victims Redress Act, the Nazi War Crimes Disclosure Act, and the “findings and declarations of the California legislature.” The Judge reasoned that none of these sources created a basis on which to sue. Courts are reluctant to create a new cause of action Congress has not explicitly created through legislative action. Here, the legislature intended the government to help victims recover their property under current laws.
Wednesday, September 14, 2005
"Screen Door Jesus" Opens in Texas, Holds Hurricane Benefit in Conroe
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
September 14, 2005
"SCREEN DOOR JESUS" OPENS IN TEXAS; HOLDS HURRICANE BENEFIT IN CONROE
On Sept. 28, moviegoers in the Houston area can help the victims of Hurricane Katrina by attending benefit screenings of the film, "Screen Door Jesus" at the Pine Hollow Cinema 6 in Conroe, TX.
The producers of the film, our clients, have pledged all screening proceeds to The Salvation Army and Neighborhood Centers Inc. for their hurricane relief efforts.
"Screen Door Jesus" is distributed by Indican Pictures. It opens Sept. 30 in Houston at the Angelika Theater and the Pine Hollow 6; it opens Oct. 14 at Austin's Regal Arbor Cinema and San Antonio's Regal Fiesta 16. The film is also scheduled to open in Los Angeles and Oklahoma.
Updates and more information are available on the official website.
FANGORIA ANNOUNCES "HUNTER'S MOON"
Congratulations to our client, writer/director Mark Stouffer, who began shooting the horror film, "Hunter's Moon," starring Devon Sawa. This is the first of five genre features for the independent production company. Read more about "Hunter's Moon" on Fangoria.com.
CONGRATULATIONS TO OUR CLIENTS
This week, two clients, Craig Brewer and Amir Mann each began production on their films.
Brewer's "Black Snake Moan," a Paramount Pictures release. The film stars Samuel L. Jackson, Christina Ricci and Justin Timberlake and shoots in Memphis.
Mann's "The Fifth Patient" is being distributed by Shoreline Entertainment. The film stars Nick Chinlund and shoots in Mexico.
Congratulations, Craig and Amir!
September 14, 2005
"SCREEN DOOR JESUS" OPENS IN TEXAS; HOLDS HURRICANE BENEFIT IN CONROE
On Sept. 28, moviegoers in the Houston area can help the victims of Hurricane Katrina by attending benefit screenings of the film, "Screen Door Jesus" at the Pine Hollow Cinema 6 in Conroe, TX.
The producers of the film, our clients, have pledged all screening proceeds to The Salvation Army and Neighborhood Centers Inc. for their hurricane relief efforts.
"Screen Door Jesus" is distributed by Indican Pictures. It opens Sept. 30 in Houston at the Angelika Theater and the Pine Hollow 6; it opens Oct. 14 at Austin's Regal Arbor Cinema and San Antonio's Regal Fiesta 16. The film is also scheduled to open in Los Angeles and Oklahoma.
Updates and more information are available on the official website.
FANGORIA ANNOUNCES "HUNTER'S MOON"
Congratulations to our client, writer/director Mark Stouffer, who began shooting the horror film, "Hunter's Moon," starring Devon Sawa. This is the first of five genre features for the independent production company. Read more about "Hunter's Moon" on Fangoria.com.
CONGRATULATIONS TO OUR CLIENTS
This week, two clients, Craig Brewer and Amir Mann each began production on their films.
Brewer's "Black Snake Moan," a Paramount Pictures release. The film stars Samuel L. Jackson, Christina Ricci and Justin Timberlake and shoots in Memphis.
Mann's "The Fifth Patient" is being distributed by Shoreline Entertainment. The film stars Nick Chinlund and shoots in Mexico.
Congratulations, Craig and Amir!
Monday, July 18, 2005
Florida Supreme Court Shelters "The Perfect Storm"; "Hustle & Flow" Opens This Week
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
July 18, 2005
In this newsletter:
FLORIDA SUPREME COURT SHELTERS "THE PERFECT STORM"
"The Perfect Storm," a Warner Brothers film, was based on a true story about the sinking of a fishing vessel and the resulting deaths of its crew members, two of which were Billy Tyne and Dale Murphy. Tyne and Murphy's survivors brought suit, claiming the film's depiction of their ancestors was a form of commercial misappropriation under Florida's right of publicity statute and also a common law invasion of privacy.
The lower Florida courts dismissed these claims and granted Warner Bros.' motion for summary judgment. However, the survivors appealed and the case went to the Florida Supreme Court. The main question the Court faced was whether the Florida right of publicity statute applied to "The Perfect Storm" and movies similar to it?
The statute calls for a ban on the unauthorized use of a person's name or likeness "for any commercial…purpose." The Court ultimately held that the statute was not applicable to "The Perfect Storm" or other forms of media that "do not directly promote a product or service." Furthermore the Court cautioned that finding the statute applicable to movies, which are protected under the First Amendment, would raise potential constitutional concerns.
Tyne v. Time Warner Entertainment Co., Case No. SC03-1251 (Fla. 2005), available in PDF format.
"HUSTLE & FLOW" PREMIERES JULY 20, OPENS IN 1,500 THEATERS JULY 22
You've got to dream big. In "Hustle & Flow," a Memphis pimp who seeks hip-hop stardom makes the biggest hustle of his life to get a record made.
Paramount Pictures picked up "Hustle & Flow," written and directed by our client, Craig Brewer. The film won the 2005 Sundance Audience Award for its sensational performances by a cast that stars Terrence Dashon Howard, Anthony Anderson, Taryn Manning, Taraji P. Henson, Paula Jai Parker, Elise Neal, DJ Qualls, and Ludacris.
"Hustle & Flow" premieres Wednesday, July 20 in Los Angeles at the ArcLight Cinerama Dome, and opens in theaters on Friday, July 22. The official website is www.hustleandflow.com. Apple.com has an exclusive featurette online at Apple.com.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
July 18, 2005
In this newsletter:
FLORIDA SUPREME COURT SHELTERS "THE PERFECT STORM"
"The Perfect Storm," a Warner Brothers film, was based on a true story about the sinking of a fishing vessel and the resulting deaths of its crew members, two of which were Billy Tyne and Dale Murphy. Tyne and Murphy's survivors brought suit, claiming the film's depiction of their ancestors was a form of commercial misappropriation under Florida's right of publicity statute and also a common law invasion of privacy.
The lower Florida courts dismissed these claims and granted Warner Bros.' motion for summary judgment. However, the survivors appealed and the case went to the Florida Supreme Court. The main question the Court faced was whether the Florida right of publicity statute applied to "The Perfect Storm" and movies similar to it?
The statute calls for a ban on the unauthorized use of a person's name or likeness "for any commercial…purpose." The Court ultimately held that the statute was not applicable to "The Perfect Storm" or other forms of media that "do not directly promote a product or service." Furthermore the Court cautioned that finding the statute applicable to movies, which are protected under the First Amendment, would raise potential constitutional concerns.
Tyne v. Time Warner Entertainment Co., Case No. SC03-1251 (Fla. 2005), available in PDF format.
"HUSTLE & FLOW" PREMIERES JULY 20, OPENS IN 1,500 THEATERS JULY 22
You've got to dream big. In "Hustle & Flow," a Memphis pimp who seeks hip-hop stardom makes the biggest hustle of his life to get a record made.
Paramount Pictures picked up "Hustle & Flow," written and directed by our client, Craig Brewer. The film won the 2005 Sundance Audience Award for its sensational performances by a cast that stars Terrence Dashon Howard, Anthony Anderson, Taryn Manning, Taraji P. Henson, Paula Jai Parker, Elise Neal, DJ Qualls, and Ludacris.
"Hustle & Flow" premieres Wednesday, July 20 in Los Angeles at the ArcLight Cinerama Dome, and opens in theaters on Friday, July 22. The official website is www.hustleandflow.com. Apple.com has an exclusive featurette online at Apple.com.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Friday, July 15, 2005
DreamWorks Prevails; Mark Speaks at VSDA
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
July 15, 2005
In this newsletter:
DREAMWORKS PREVAILS IN "ANTZ" COPYRIGHT INFRINGEMENT CASE
Scriptwriter David Seals-McClellan lost his copyright infringement case against DreamWorks. He claimed the DreamWorks movie "Antz" infringed his script entitled "Eddie the Existential Ant." The Ninth Circuit rejected Seals-McClellan's appeal from a lower court's issuing of summary judgment in favor of DreamWorks.
The two requirements that must be met to show copyright infringement are 1) access by the alleged infringer to the original work and 2) a substantial similarity between the works. Seals-McClellan believed that his script had made its way to DreamWorks via a former Universal employee who had obtained it after Seals-McClellan entered it into a Universal sponsored contest. The Court found this evidence insufficient to meet the access requirement, finding that he had not "shown anything beyond a bare possibility of access."
Because Seals-McClellan could not prove access, he had to show more than a "substantial similarity" between "Antz" and his script. He had the burden of showing the works were "strikingly similar." The Court, after Seals-McClellan's own expert admitted that both works could have been individually created, found that only similar common ideas were used, for which Copyright law does not afford protection.
Seals-McClellan v. DreamWorks, Inc., 120 Fed.Appx. 3, 2004 U.S.App.LEXIS 25426 (9th Cir. 2004).
Click here to download the court memorandum (opens PDF file).
MARK TO SPEAK AT VSDA ON JULY 27
When all's said and done, distribution is usually the hardest part about independent filmmaking. On July 27 at 10:00 a.m., Mark will speak at a seminar called "Getting Your Film Out There: From Production to Festival to Distribution" at VSDA in Las Vegas. Mark will speak about how filmmakers can identify the methods, and strategies, and channels to get their films before an audience.
The seminar is part of VSDA's Filmmaker Program. More information is available at the VDSA website.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
July 15, 2005
In this newsletter:
DREAMWORKS PREVAILS IN "ANTZ" COPYRIGHT INFRINGEMENT CASE
Scriptwriter David Seals-McClellan lost his copyright infringement case against DreamWorks. He claimed the DreamWorks movie "Antz" infringed his script entitled "Eddie the Existential Ant." The Ninth Circuit rejected Seals-McClellan's appeal from a lower court's issuing of summary judgment in favor of DreamWorks.
The two requirements that must be met to show copyright infringement are 1) access by the alleged infringer to the original work and 2) a substantial similarity between the works. Seals-McClellan believed that his script had made its way to DreamWorks via a former Universal employee who had obtained it after Seals-McClellan entered it into a Universal sponsored contest. The Court found this evidence insufficient to meet the access requirement, finding that he had not "shown anything beyond a bare possibility of access."
Because Seals-McClellan could not prove access, he had to show more than a "substantial similarity" between "Antz" and his script. He had the burden of showing the works were "strikingly similar." The Court, after Seals-McClellan's own expert admitted that both works could have been individually created, found that only similar common ideas were used, for which Copyright law does not afford protection.
Seals-McClellan v. DreamWorks, Inc., 120 Fed.Appx. 3, 2004 U.S.App.LEXIS 25426 (9th Cir. 2004).
Click here to download the court memorandum (opens PDF file).
MARK TO SPEAK AT VSDA ON JULY 27
When all's said and done, distribution is usually the hardest part about independent filmmaking. On July 27 at 10:00 a.m., Mark will speak at a seminar called "Getting Your Film Out There: From Production to Festival to Distribution" at VSDA in Las Vegas. Mark will speak about how filmmakers can identify the methods, and strategies, and channels to get their films before an audience.
The seminar is part of VSDA's Filmmaker Program. More information is available at the VDSA website.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Thursday, June 30, 2005
Supremes Rule on Grokster, SAG Indie Announces Changes
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
June 30, 2005
In this newsletter:
SUPREME COURT'S GROKSTER RULING MAY OPEN DOORS TO INCREASED INTELLECTUAL PROPERTY LITIGATION
The United States Supreme Court released its long anticipated decision in the MGM v. Grokster case debating the question of whether companies in the business of creating file-sharing software can be held liable for the infringing acts of their users. The Supreme Court, in a unanimous decision, held that they could, overturning the general "no secondary liability" principle established in the well-known 1984 "Betamax" case.
Justice Souter wrote "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringements by third parties." It is important to note Souter's use of the word "device" rather than of simply saying "software." This holding can technically and broadly be extended to apply to manufacturers of any type of device, including possibly the Ipod, TiVo, Google, etc., that consumers could possibly use to facilitate their own copyright infringing activities.
Where increased litigation is likely to stem from, is how will a company's "intent" be defined and determined by the courts? When does a company intend for its product to be used for the purposes of copyright infringement, and what steps will a company have to take to safely defend itself against such claims? Technology companies and their lawyers will potentially need to employ a wide range of safeguarding tactics, varying from simple disclaimers to more extreme measures like pledging to actively find and prosecute infringing consumers.
Some organizations, such as the Electronic Freedom Foundation (EFF), worry that the ruling will result in harm to American technology companies. American companies will have to spend increased money on safeguards and litigation and possibly hold back on technological innovation, while foreign competitors will not have to sensor their developing technologies for fear of liability. It remains to be seen if such fears will manifest. In the short term, music and entertainment companies will be celebrating the Court's decision as a victory and view the ruling as a step towards the needed increased protection of copyright and other intellectual property rights.
Metro-Gold-Mayer Studios, Inc. v. Grokster, Ltd., S.Ct., 2005 WL 1499402 U.S. 2005.
The complete Supreme Court Opinion can be found here.
SAG ANNOUNCES NEW AND REVISED LOW BUDGET AGREEMENTS
Independent filmmakers are getting good news from SAG. Effective July 1, 2005, SAG's new and revised low budget agreements will make it easier to make films with SAG actors. In addition, the SAG Indie Web site has sample contracts and initial paperwork for the signatory process available for download.
A summary of the new and revised agreements can be found at SAGIndie.org.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
June 30, 2005
In this newsletter:
SUPREME COURT'S GROKSTER RULING MAY OPEN DOORS TO INCREASED INTELLECTUAL PROPERTY LITIGATION
The United States Supreme Court released its long anticipated decision in the MGM v. Grokster case debating the question of whether companies in the business of creating file-sharing software can be held liable for the infringing acts of their users. The Supreme Court, in a unanimous decision, held that they could, overturning the general "no secondary liability" principle established in the well-known 1984 "Betamax" case.
Justice Souter wrote "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringements by third parties." It is important to note Souter's use of the word "device" rather than of simply saying "software." This holding can technically and broadly be extended to apply to manufacturers of any type of device, including possibly the Ipod, TiVo, Google, etc., that consumers could possibly use to facilitate their own copyright infringing activities.
Where increased litigation is likely to stem from, is how will a company's "intent" be defined and determined by the courts? When does a company intend for its product to be used for the purposes of copyright infringement, and what steps will a company have to take to safely defend itself against such claims? Technology companies and their lawyers will potentially need to employ a wide range of safeguarding tactics, varying from simple disclaimers to more extreme measures like pledging to actively find and prosecute infringing consumers.
Some organizations, such as the Electronic Freedom Foundation (EFF), worry that the ruling will result in harm to American technology companies. American companies will have to spend increased money on safeguards and litigation and possibly hold back on technological innovation, while foreign competitors will not have to sensor their developing technologies for fear of liability. It remains to be seen if such fears will manifest. In the short term, music and entertainment companies will be celebrating the Court's decision as a victory and view the ruling as a step towards the needed increased protection of copyright and other intellectual property rights.
Metro-Gold-Mayer Studios, Inc. v. Grokster, Ltd., S.Ct., 2005 WL 1499402 U.S. 2005.
The complete Supreme Court Opinion can be found here.
SAG ANNOUNCES NEW AND REVISED LOW BUDGET AGREEMENTS
Independent filmmakers are getting good news from SAG. Effective July 1, 2005, SAG's new and revised low budget agreements will make it easier to make films with SAG actors. In addition, the SAG Indie Web site has sample contracts and initial paperwork for the signatory process available for download.
A summary of the new and revised agreements can be found at SAGIndie.org.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Wednesday, June 22, 2005
Nevada Supreme Court Overturns State "Son of Sam" Law
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
June 22, 2005
In this newsletter:
NEVADA SUPREME COURT OVERTURNS STATE "SON OF SAM" LAW AS UNCONSTITUTIONAL
The original "Son of Sam" law was enacted in 1977 in New York to ensure that the infamous serial killer David Berkowitz, known as the "Son of Sam," would not profit from any future memoirs he might publish from prison regarding his murders. Several other states, including Nevada, followed New York's lead and implemented their own "Son of Sam" laws, regardless of the fact that the United States Supreme Court struck down New York's law as unconstitutional. Generally, such laws provide that all proceeds that a felon receives from published materials about his offense must be turned over to his victim's family.
Jimmy Lerner is a Nevada felon, convicted for the murder of Mark Slavin. Lerner wrote a book in prison, "You Got Nothing Coming, Notes From a Prison Fish," which describes both his life experiences in prison as well as Slavin's murder. Pursuant to the Nevada "Son of Sam" law, Donna Seres, the victim's sister, sued Lerner for all the profits from his book. The Nevada Supreme Court ruled against Seres and confirmed what the lower courts had held, that the "Son of Sam" law failed to satisfy the strict scrutiny test that the First Amendment required be applied to it, and thus that the law was unconstitutional.
The First Amendment requires that all content-based restrictive legislation must satisfy strict scrutiny. In other words the law must address a compelling state interest and must be narrowly tailored to achieve that interest. While the law did serve Nevada's compelling state interest in "the compensation of crime victims and the prevention of direct profiteering from criminal misconduct," the Nevada Supreme Court held that the law was not narrowly tailored enough to be upheld.
Under the construction of the law, victims would be able to recover profits from felons' works that merely mentioned their crimes but were virtually unrelated to them, such as memoirs about prison life. The Nevada Supreme Court also found that it would be impractical to try and measure what percentage of the profits were aptly related to the crime and thus potentially recoverable by the victim's family. As well, the Nevada Supreme Court found that the law was broad and over-inclusive as it applied to all those who had "committed" a felony rather than only those persons actually "convicted" of such a felony.
Seres v. Lerner, 102 P.3d 91, 2004 Nev.LEXIS 12733 (Nev. 2004).
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
June 22, 2005
In this newsletter:
NEVADA SUPREME COURT OVERTURNS STATE "SON OF SAM" LAW AS UNCONSTITUTIONAL
The original "Son of Sam" law was enacted in 1977 in New York to ensure that the infamous serial killer David Berkowitz, known as the "Son of Sam," would not profit from any future memoirs he might publish from prison regarding his murders. Several other states, including Nevada, followed New York's lead and implemented their own "Son of Sam" laws, regardless of the fact that the United States Supreme Court struck down New York's law as unconstitutional. Generally, such laws provide that all proceeds that a felon receives from published materials about his offense must be turned over to his victim's family.
Jimmy Lerner is a Nevada felon, convicted for the murder of Mark Slavin. Lerner wrote a book in prison, "You Got Nothing Coming, Notes From a Prison Fish," which describes both his life experiences in prison as well as Slavin's murder. Pursuant to the Nevada "Son of Sam" law, Donna Seres, the victim's sister, sued Lerner for all the profits from his book. The Nevada Supreme Court ruled against Seres and confirmed what the lower courts had held, that the "Son of Sam" law failed to satisfy the strict scrutiny test that the First Amendment required be applied to it, and thus that the law was unconstitutional.
The First Amendment requires that all content-based restrictive legislation must satisfy strict scrutiny. In other words the law must address a compelling state interest and must be narrowly tailored to achieve that interest. While the law did serve Nevada's compelling state interest in "the compensation of crime victims and the prevention of direct profiteering from criminal misconduct," the Nevada Supreme Court held that the law was not narrowly tailored enough to be upheld.
Under the construction of the law, victims would be able to recover profits from felons' works that merely mentioned their crimes but were virtually unrelated to them, such as memoirs about prison life. The Nevada Supreme Court also found that it would be impractical to try and measure what percentage of the profits were aptly related to the crime and thus potentially recoverable by the victim's family. As well, the Nevada Supreme Court found that the law was broad and over-inclusive as it applied to all those who had "committed" a felony rather than only those persons actually "convicted" of such a felony.
Seres v. Lerner, 102 P.3d 91, 2004 Nev.LEXIS 12733 (Nev. 2004).
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Tuesday, June 14, 2005
Congress Announces Family Entertainment and Copyright Act of 2005
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
June 14, 2005
In this newsletter:
NEW CONGRESSIONAL AMENDMENT, THE "FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005" WILL IMPACT THE ENTERTAINMENT INDUSTRY
Congress' recent amendments to the Federal Copyright Act will result in three significant changes: authorizing the "sanitization" of movies for private viewing; making the camcording of movies in theatres a federal crime; and allowing certain works vulnerable to copyright infringement special "pre-registration" rights and thus access to previously unavailable statutory remedies.
The Family Movie Act of 2005
This Act arose from the litigation sparked by the development of several family oriented companies that created technology to sanitize violence and sex from films for private home viewing. ClearPlay is one such company. Its sanitization technology consists of software that does not actually alter or reproduce the films, but rather instructs the user's DVD player to fast-forward or mute through sensitive scenes. ClearPlay's competitor, Clean Flicks actually makes an edited copy of the original film.
The new Act will allow for ClearPlay types of sanitation technologies, but not for Clean Flicks' methods. The Act reads that no copyright infringement occurs when "limited portions of audio or video content of a motion picture" are made "imperceptible" for home viewing, but only so long as "no fixed copy of the altered version" is created. Additionally the Act amends the Trademark Act to eliminate any potential liability under Trademark law, so long as viewers are notified that they are watching an altered version of the film.
The Artists' Rights and Theft Prevention Act of 2005 (ART Act)
It's been estimated that the movie industry loses 3.5 billion annually due to hard-goods piracy, one source of which is the camcording of first-run movies in theatres and conversion into DVD's or online downloads. The ART Act notes that in making camcording a federal crime, the Act complements rather than preempts existing state laws. Thus the Act will serve to empower theatre personnel with the authority to detain and question individuals whom they reasonably believe are camcording a movie, and to immunize theatres against potential suits that might arise from the suspect's detention.
Pre-Registration Rights
While registration is not required for copyright protection, it does give registrants valuable statutory remedies such as attorney's fees and statutory damages so long as registration has occurred prior to the infringement. Typically this works well as most works are not vulnerable to infringement prior to their public release. However, Congress has acknowledged that some works are more vulnerable to pre-release infringement and that the Copyright Office may give such works "pre-registration" status. Such status will allow a copyright owner access to statutory remedies even if infringement occurs prior to its public release and actual registration.
Family Entertainment and Copyright Act of 2005, S.167 (109th Cong., 1st Sess. 2005), available at as a PDF file.
"SCREEN DOOR JESUS" SECURES NORTH AMERICAN DISTRIBUTION
Congratulations to our client, Sam Adelman. His film, "Screen Door Jesus" will be distributed domestically by Indican Pictures.
"Screen Door Jesus," a story about the mysterious appearance of an image of Jesus on a screen door, won accolades at the Hamptons and South by Southwest film festivals in 2003.
The Hollywood Reporter has the scoop.
The official movie site is at www.screendoorjesusthemovie.com.
"BRISTOL BOYS" FILMMAKER AWARDED DIGITAL FILMMAKER'S GRANT
Our client, Brandon Cole, received the Panasonic Digital Filmmaker's Grant to shoot his motion picture, "Bristol Boys." Panasonic conducted an interview with Brandon, which is available on Panasonic's website.
MARK IN THE MEDIA
Confused about movie titles? "Slate" magazine has published an article about title confusion and quotes Mark.
SAG Indie has published an in-depth interview with Mark. It's available at www.sagindie.org/spotlight.html.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
June 14, 2005
In this newsletter:
NEW CONGRESSIONAL AMENDMENT, THE "FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005" WILL IMPACT THE ENTERTAINMENT INDUSTRY
Congress' recent amendments to the Federal Copyright Act will result in three significant changes: authorizing the "sanitization" of movies for private viewing; making the camcording of movies in theatres a federal crime; and allowing certain works vulnerable to copyright infringement special "pre-registration" rights and thus access to previously unavailable statutory remedies.
The Family Movie Act of 2005
This Act arose from the litigation sparked by the development of several family oriented companies that created technology to sanitize violence and sex from films for private home viewing. ClearPlay is one such company. Its sanitization technology consists of software that does not actually alter or reproduce the films, but rather instructs the user's DVD player to fast-forward or mute through sensitive scenes. ClearPlay's competitor, Clean Flicks actually makes an edited copy of the original film.
The new Act will allow for ClearPlay types of sanitation technologies, but not for Clean Flicks' methods. The Act reads that no copyright infringement occurs when "limited portions of audio or video content of a motion picture" are made "imperceptible" for home viewing, but only so long as "no fixed copy of the altered version" is created. Additionally the Act amends the Trademark Act to eliminate any potential liability under Trademark law, so long as viewers are notified that they are watching an altered version of the film.
The Artists' Rights and Theft Prevention Act of 2005 (ART Act)
It's been estimated that the movie industry loses 3.5 billion annually due to hard-goods piracy, one source of which is the camcording of first-run movies in theatres and conversion into DVD's or online downloads. The ART Act notes that in making camcording a federal crime, the Act complements rather than preempts existing state laws. Thus the Act will serve to empower theatre personnel with the authority to detain and question individuals whom they reasonably believe are camcording a movie, and to immunize theatres against potential suits that might arise from the suspect's detention.
Pre-Registration Rights
While registration is not required for copyright protection, it does give registrants valuable statutory remedies such as attorney's fees and statutory damages so long as registration has occurred prior to the infringement. Typically this works well as most works are not vulnerable to infringement prior to their public release. However, Congress has acknowledged that some works are more vulnerable to pre-release infringement and that the Copyright Office may give such works "pre-registration" status. Such status will allow a copyright owner access to statutory remedies even if infringement occurs prior to its public release and actual registration.
Family Entertainment and Copyright Act of 2005, S.167 (109th Cong., 1st Sess. 2005), available at as a PDF file.
"SCREEN DOOR JESUS" SECURES NORTH AMERICAN DISTRIBUTION
Congratulations to our client, Sam Adelman. His film, "Screen Door Jesus" will be distributed domestically by Indican Pictures.
"Screen Door Jesus," a story about the mysterious appearance of an image of Jesus on a screen door, won accolades at the Hamptons and South by Southwest film festivals in 2003.
The Hollywood Reporter has the scoop.
The official movie site is at www.screendoorjesusthemovie.com.
"BRISTOL BOYS" FILMMAKER AWARDED DIGITAL FILMMAKER'S GRANT
Our client, Brandon Cole, received the Panasonic Digital Filmmaker's Grant to shoot his motion picture, "Bristol Boys." Panasonic conducted an interview with Brandon, which is available on Panasonic's website.
MARK IN THE MEDIA
Confused about movie titles? "Slate" magazine has published an article about title confusion and quotes Mark.
SAG Indie has published an in-depth interview with Mark. It's available at www.sagindie.org/spotlight.html.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Tuesday, May 24, 2005
Writers Lawsuit Revived, Mark Teaches in Michigan
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
May 24, 2005
In this newsletter:
WRITERS' DISCRIMINATION LAWSUIT REVIVED BY APPEALS COURT
Four years after it was initially filed, a class-action age discrimination lawsuit filed by a group of WGA writers has been revived on appeal and sent back for trial.
In 2001, members of the Writers Guild went to Federal court to claim that they had been systematically discriminated against by television networks, production companies, and talent agencies because they were more than 40 years old. The original case had been dismissed for procedural reasons, without prejudice and with leave to amend.
The writers decided to abandon their Federal lawsuit and rewrite their script, bringing a new suit in the California state courts instead. They claimed that the television networks and production companies’ systematic discrimination against older writers violated the California Fair Employment and Housing Act.
Furthermore, the writers argued that talent agencies were “aiding and abetting” the discrimination by pre-screening writers and not referring older candidates for consideration on projects. The writers claimed that because talent agencies refused to provide services on a wide scale, the agencies violated the California Unruh Civil Rights Act, which protects against discrimination in providing services.
The state lawsuit was dismissed in trial court, however, the writers won a reversal of that decision on appeal.
Justice Paul Boland, writing for the Court of Appeal, wrote that the writers properly alleged “classwide claims” as well as a “pattern and practice” of discrimination against older writers among networks and production companies.
The writers also made proper allegations that talent agencies supposedly knew of the networks and production companies’ discrimination policy against older writers and gave “substantial assistance or encouragement” of the policy by only submitting names of younger writers to projects.
In addition, the writers adequately presented claims of unfair competition against the networks, production companies and talent agencies.
Alch v. Superior Court, 19 Cal.Rptr.3d 29, 2004 Cal.App.LEXIS 1531 (Cal.App. 2004), petition for hearing by the California Supreme Court denied (Dec. 22, 2004).
MARK BRINGS HIS RISKY BUSINESS SEMINAR TO DETROIT
Filmmakers in Michigan wanting to understand film financing and distribution of indie films can now register for Mark’s Oct. 15 seminar at Wayne State University.
The one-day seminar will teach filmmakers how independent films are financed and distributed. Topics covered include forming a production company, raising financing via pre-sales, debt and limited partnerships, negotiating tactics, principal terms of the acquisition/distribution agreement, cross-collaterization and creative accounting.
The seminar is being offered through ArtServe Michigan in partnership with Wayne State University Law School Sports & Entertainment Law Society and the University of Detroit-Mercy Law School Arts, Entertainment & Sports Association.
For more information and to register, click here.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.Copyright 2005, Mark Litwak
May 24, 2005
In this newsletter:
WRITERS' DISCRIMINATION LAWSUIT REVIVED BY APPEALS COURT
Four years after it was initially filed, a class-action age discrimination lawsuit filed by a group of WGA writers has been revived on appeal and sent back for trial.
In 2001, members of the Writers Guild went to Federal court to claim that they had been systematically discriminated against by television networks, production companies, and talent agencies because they were more than 40 years old. The original case had been dismissed for procedural reasons, without prejudice and with leave to amend.
The writers decided to abandon their Federal lawsuit and rewrite their script, bringing a new suit in the California state courts instead. They claimed that the television networks and production companies’ systematic discrimination against older writers violated the California Fair Employment and Housing Act.
Furthermore, the writers argued that talent agencies were “aiding and abetting” the discrimination by pre-screening writers and not referring older candidates for consideration on projects. The writers claimed that because talent agencies refused to provide services on a wide scale, the agencies violated the California Unruh Civil Rights Act, which protects against discrimination in providing services.
The state lawsuit was dismissed in trial court, however, the writers won a reversal of that decision on appeal.
Justice Paul Boland, writing for the Court of Appeal, wrote that the writers properly alleged “classwide claims” as well as a “pattern and practice” of discrimination against older writers among networks and production companies.
The writers also made proper allegations that talent agencies supposedly knew of the networks and production companies’ discrimination policy against older writers and gave “substantial assistance or encouragement” of the policy by only submitting names of younger writers to projects.
In addition, the writers adequately presented claims of unfair competition against the networks, production companies and talent agencies.
Alch v. Superior Court, 19 Cal.Rptr.3d 29, 2004 Cal.App.LEXIS 1531 (Cal.App. 2004), petition for hearing by the California Supreme Court denied (Dec. 22, 2004).
MARK BRINGS HIS RISKY BUSINESS SEMINAR TO DETROIT
Filmmakers in Michigan wanting to understand film financing and distribution of indie films can now register for Mark’s Oct. 15 seminar at Wayne State University.
The one-day seminar will teach filmmakers how independent films are financed and distributed. Topics covered include forming a production company, raising financing via pre-sales, debt and limited partnerships, negotiating tactics, principal terms of the acquisition/distribution agreement, cross-collaterization and creative accounting.
The seminar is being offered through ArtServe Michigan in partnership with Wayne State University Law School Sports & Entertainment Law Society and the University of Detroit-Mercy Law School Arts, Entertainment & Sports Association.
For more information and to register, click here.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.Copyright 2005, Mark Litwak
Thursday, May 12, 2005
Georgia Production Incentives, "Hustle & Flow" on AICN
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
May 12, 2005
In this newsletter:
GEORGIA ADOPTS PRODUCTION INCENTIVES
The governor of Georgia has signed the Georgia Entertainment Industry Investment Act.
HB539 enhances Georgia's competitiveness in the entertainment industry. Production companies investing at least $500,000 in services, materials and labor for a project in Georgia will receive a 9% base tax credit applied to their total investment. Companies will receive an additional 3% tax credit for hiring Georgia residents.
An additional 3% incentive is available for filming in an economically disadvantaged county. And for companies that invest in multiple television projects of more than $20 million in the state, there is an additional 2% credit. Additional information available here.
AIN’T IT COOL NEWS DIGS “HUSTLE & FLOW”
Harry Knowles of "Ain't It Cool News" has given a rave review to "Hustle & Flow," written and directed by our client, Craig Brewer.
"Like Tarantino did to the Kung Fu Revenge flick and Edgar Wright Jr did to the Zombie flick - Craig Brewer has done to Blaxploitation, writes Knowles. He gives additional props to the cast, who give a performance that "feels vital and alive and happening right before your eyes."
Read the review here. "Hustle & Flow" comes out this summer. Click here to visit the official website.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.Copyright 2005, Mark Litwak
Monday, April 04, 2005
"Rounders" Remanded by Ninth Circuit; Mark Talks Legal Self-Defense
April 4, 2005
In this newsletter:
FEDERAL APPEALS COURT UPHOLDS DISMISSAL OF COPYRIGHT INFRINGEMENT CLAIM AGAINST MIRAMAX FOR THE MOVIE "ROUNDERS" WHILE ALLOWING A STATE CLAIM FOR BREACH OF AN IMPLIED CONTRACT TO MOVE FORWARD
The U.S. Court of Appeals for the Ninth Circuit upheld the District Court's dismissal of a copyright infringement claim filed by screenwriter Jeff Grosso against Miramax Films (Grosso v. Miramax Film Corp., 383 F.3d 965 (2004)). Grosso claimed that the movie "Rounders" infringed his copyright in a screenplay he wrote entitled "The Shell Game." He based his claim on the fact that he had pitched his screenplay to Miramax before "Rounders" was made. The court of appeals found that the two works were not substantially similar to support a claim of copyright infringement against Miramax. The only similarities between the two works were some of the language used, which the court found to be "unprotectible poker jargon." But the court did find that the circumstances in which Grosso's screenplay was pitched to Miramax might support a state claim for breach of an implied contract. The state contract claim was originally dismissed by the district court on the grounds that federal copyright law preempted it. The court of appeals found this judgment to be in error and reversed. Copyright law did not preempt the state claim because the state claim provided for protection of "different rights from those protected by copyright." Under California state law a contract may be implied when an idea is disclosed from one party to another "under circumstances from which it could be concluded that the offeree voluntarily accepted the disclosure knowing the conditions on which it was tendered and the reasonable value of the work." There exists no similar protection under federal copyright law, therefore making preemption improper. The U.S. Court of Appeals found that the circumstances in which the idea of "The Shell Game" was disclosed to Miramax were such that the claim should survive summary judgment. The claim was remanded to the district court for further proceedings.
LEARN SELF-DEFENSE FROM MARK AT UCLA
On April 16-17, Mark will be at UCLA teaching his popular course, "Self-Defense for Independent Filmmakers: Protecting Your Legal Rights." This two-day seminar teaches filmmakers how to anticipate problems before they arise in their negotiations with production and distribution companies. Students will learn how toand create incentives to encourage 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 register for the course, visit www.uclaextension.edu/ and type "Mark Litwak" in the search box.
CONGRATULATIONS TO OUR CLIENTS
Two of our clients are premiering their films at The Method Fest in Calabasas, California this week:
"Zooey," written and directed by our client, Sherman Lau, is an urban love story of a young prostitute and her husband trying to escape their life on the street. "Zooey" stars newcomers Sarah Louise Lilley and Xavier Jimenez. The official website is www.christmaswish.org/zooeyfilms/ZooeyFilm.htm . "Zooey" screens April 4 at 9:30PM at the Edwards Cinema 3.
"Fighting Words," written and directed by our client, Paul Edwards. The film centers around a gifted poet who is discovered by an attractive publisher. The two embark on a relationship that teaches both that love is more than words. The film stars C. Thomas Howell, Jeff Stearns, Tara D'Agostino and Fred Willard. The official website is www.fightingwordsmovie.com . "Fighting Words" screens April 5 at 2:00PM at the Motion Picture & Television Fund Louis B. Mayer Theater.
For more information about The Method Fest, visit www.methodfest.com/ .
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
==========================================================
In this newsletter:
FEDERAL APPEALS COURT UPHOLDS DISMISSAL OF COPYRIGHT INFRINGEMENT CLAIM AGAINST MIRAMAX FOR THE MOVIE "ROUNDERS" WHILE ALLOWING A STATE CLAIM FOR BREACH OF AN IMPLIED CONTRACT TO MOVE FORWARD
The U.S. Court of Appeals for the Ninth Circuit upheld the District Court's dismissal of a copyright infringement claim filed by screenwriter Jeff Grosso against Miramax Films (Grosso v. Miramax Film Corp., 383 F.3d 965 (2004)). Grosso claimed that the movie "Rounders" infringed his copyright in a screenplay he wrote entitled "The Shell Game." He based his claim on the fact that he had pitched his screenplay to Miramax before "Rounders" was made. The court of appeals found that the two works were not substantially similar to support a claim of copyright infringement against Miramax. The only similarities between the two works were some of the language used, which the court found to be "unprotectible poker jargon." But the court did find that the circumstances in which Grosso's screenplay was pitched to Miramax might support a state claim for breach of an implied contract. The state contract claim was originally dismissed by the district court on the grounds that federal copyright law preempted it. The court of appeals found this judgment to be in error and reversed. Copyright law did not preempt the state claim because the state claim provided for protection of "different rights from those protected by copyright." Under California state law a contract may be implied when an idea is disclosed from one party to another "under circumstances from which it could be concluded that the offeree voluntarily accepted the disclosure knowing the conditions on which it was tendered and the reasonable value of the work." There exists no similar protection under federal copyright law, therefore making preemption improper. The U.S. Court of Appeals found that the circumstances in which the idea of "The Shell Game" was disclosed to Miramax were such that the claim should survive summary judgment. The claim was remanded to the district court for further proceedings.
LEARN SELF-DEFENSE FROM MARK AT UCLA
On April 16-17, Mark will be at UCLA teaching his popular course, "Self-Defense for Independent Filmmakers: Protecting Your Legal Rights." This two-day seminar teaches filmmakers how to anticipate problems before they arise in their negotiations with production and distribution companies. Students will learn how toand create incentives to encourage 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 register for the course, visit www.uclaextension.edu/ and type "Mark Litwak" in the search box.
CONGRATULATIONS TO OUR CLIENTS
Two of our clients are premiering their films at The Method Fest in Calabasas, California this week:
"Zooey," written and directed by our client, Sherman Lau, is an urban love story of a young prostitute and her husband trying to escape their life on the street. "Zooey" stars newcomers Sarah Louise Lilley and Xavier Jimenez. The official website is www.christmaswish.org/zooeyfilms/ZooeyFilm.htm . "Zooey" screens April 4 at 9:30PM at the Edwards Cinema 3.
"Fighting Words," written and directed by our client, Paul Edwards. The film centers around a gifted poet who is discovered by an attractive publisher. The two embark on a relationship that teaches both that love is more than words. The film stars C. Thomas Howell, Jeff Stearns, Tara D'Agostino and Fred Willard. The official website is www.fightingwordsmovie.com . "Fighting Words" screens April 5 at 2:00PM at the Motion Picture & Television Fund Louis B. Mayer Theater.
For more information about The Method Fest, visit www.methodfest.com/ .
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
==========================================================
Thursday, March 03, 2005
Copyright Infringed? You Could Claim Punitive Damages; "Retirement" on a Roll
March 2, 2005
In this newsletter:
U.S. DISTRICT COURT RULING MAY ALLOW PUNITIVE DAMAGES FOR COPYRIGHT INFRINGEMENT
Judge Louis Stanton of the United States District Court for the Southern District of New York recently allowed a plaintiff to amend her complaint in order that she may seek punitive damages for a claim of copyright infringement (Blanch v. Koons, 329 F.Supp.2d 568, (S.D.N.Y. 2004)).
Plaintiffs have traditionally not been allowed to recover punitive damages for copyright infringement. The goal of punitive damages is to allow plaintiffs in a civil action to recover above and beyond their actual damages when it can be shown that the defendant's actions were particularly egregious. The effect of punitive damages is to punish a defendant for conduct that was deliberate, a remedy not available in civil cases unless the plaintiff is able to demonstrate to the jury that defendant's conduct was of a level deserving of punishment.
Copyright law authorizes a plaintiff to claim statutory damages up to $150,000 if the defendant's conduct was willful and if the copyright was registered with the copyright office prior to the infringing act (17 U.S.C.S. §504). These statutory damages have traditionally been viewed as serving the same purpose as punitive damages, thereby foreclosing plaintiffs from recovering punitive damages in copyright infringement cases. In this case, however, statutory damages were not available because the infringement occurred before registration of the copyright.
In allowing the plaintiff to amend her complaint to seek punitive damages the judge followed a decision in the District Court for the Southern District of New York in which it was held that the Copyright Act did not itself prohibit punitive damages (TVT Records v. The Island Def Jam Music Group, 262 F.Supp.2d 185, 187, (S.D.N.Y. 2003)).
Judge Stanton indicated that the primary reason for granting the plaintiff leave to amend the complaint was that the holding in TVT Records requires that the plaintiff be given the opportunity to "prove malice and raise squarely the question whether punitive damages are available to her". This opinion does not mean that punitive damages will be awarded; it only means that the issue will be heard.
"RETIREMENT" ON A ROLL
Our client, Corner Stone Pictures, has begun production of its film, "Retirement," starring Billy Burke, Bill Cobbs, Peter Falk, George Segal, Rip Torn, and Coolio. The film will be shot in Miami, New Orleans and Las Vegas.
Described as "Grumpy Old Men" meets "Road Trip," the film follows Fitzy and his three retiree friends on a mission to stop Fitzy's daughter from marrying the wrong guy.
"ZOOEY" AND "FIGHTING WORDS" TO SCREEN AT METHODFEST
The MethodFest independent film festival has accepted two clients' films into its screening competition, held April 1-8 in Calabasas, Calif.
The film "Zooey," written and directed by our client, Sherman Lau, is an urban love story of a young prostitute and her husband trying to escape their life on the street. "Zooey" stars newcomers Sarah Louise Lilley and Xavier Jimenez. The official website is www.ZooeyFilms.com.
The film, "Fighting Words," written and directed by our client, Paul Edwards. The film centers around a gifted poet who is discovered by an attractive publisher. The two embark on a relationship that teaches both that love is more than words. The film stars C. Thomas Howell, Jeff Stearns, Tara D'Agostino and Fred Willard. The official website is www.fightingwordsmovie.com.
For more information, visit www.methodfest.com.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
In this newsletter:
U.S. DISTRICT COURT RULING MAY ALLOW PUNITIVE DAMAGES FOR COPYRIGHT INFRINGEMENT
Judge Louis Stanton of the United States District Court for the Southern District of New York recently allowed a plaintiff to amend her complaint in order that she may seek punitive damages for a claim of copyright infringement (Blanch v. Koons, 329 F.Supp.2d 568, (S.D.N.Y. 2004)).
Plaintiffs have traditionally not been allowed to recover punitive damages for copyright infringement. The goal of punitive damages is to allow plaintiffs in a civil action to recover above and beyond their actual damages when it can be shown that the defendant's actions were particularly egregious. The effect of punitive damages is to punish a defendant for conduct that was deliberate, a remedy not available in civil cases unless the plaintiff is able to demonstrate to the jury that defendant's conduct was of a level deserving of punishment.
Copyright law authorizes a plaintiff to claim statutory damages up to $150,000 if the defendant's conduct was willful and if the copyright was registered with the copyright office prior to the infringing act (17 U.S.C.S. §504). These statutory damages have traditionally been viewed as serving the same purpose as punitive damages, thereby foreclosing plaintiffs from recovering punitive damages in copyright infringement cases. In this case, however, statutory damages were not available because the infringement occurred before registration of the copyright.
In allowing the plaintiff to amend her complaint to seek punitive damages the judge followed a decision in the District Court for the Southern District of New York in which it was held that the Copyright Act did not itself prohibit punitive damages (TVT Records v. The Island Def Jam Music Group, 262 F.Supp.2d 185, 187, (S.D.N.Y. 2003)).
Judge Stanton indicated that the primary reason for granting the plaintiff leave to amend the complaint was that the holding in TVT Records requires that the plaintiff be given the opportunity to "prove malice and raise squarely the question whether punitive damages are available to her". This opinion does not mean that punitive damages will be awarded; it only means that the issue will be heard.
"RETIREMENT" ON A ROLL
Our client, Corner Stone Pictures, has begun production of its film, "Retirement," starring Billy Burke, Bill Cobbs, Peter Falk, George Segal, Rip Torn, and Coolio. The film will be shot in Miami, New Orleans and Las Vegas.
Described as "Grumpy Old Men" meets "Road Trip," the film follows Fitzy and his three retiree friends on a mission to stop Fitzy's daughter from marrying the wrong guy.
"ZOOEY" AND "FIGHTING WORDS" TO SCREEN AT METHODFEST
The MethodFest independent film festival has accepted two clients' films into its screening competition, held April 1-8 in Calabasas, Calif.
The film "Zooey," written and directed by our client, Sherman Lau, is an urban love story of a young prostitute and her husband trying to escape their life on the street. "Zooey" stars newcomers Sarah Louise Lilley and Xavier Jimenez. The official website is www.ZooeyFilms.com.
The film, "Fighting Words," written and directed by our client, Paul Edwards. The film centers around a gifted poet who is discovered by an attractive publisher. The two embark on a relationship that teaches both that love is more than words. The film stars C. Thomas Howell, Jeff Stearns, Tara D'Agostino and Fred Willard. The official website is www.fightingwordsmovie.com.
For more information, visit www.methodfest.com.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Monday, January 31, 2005
Film Updates; British Columbia Incentives
January 31, 2005
In this newsletter:
"HUSTLE & FLOW" WINS SUNDANCE AUDIENCE AWARD
Congratulations to our client, writer/director Craig Brewer. His film, "Hustle & Flow," won the American Dramatic Audience Award at the Sundance Film Festival. Winners were announced yesterday at the Park City Racquet Club. The film sold to Paramount for $9 million earlier in the week.
"Hustle & Flow" is the story of a Memphis pimp who wants to be a rap star. The picture stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning. The film should be in theaters this summer.
“THE MATADOR” SELLS TO MIRAMAX
Congratulations to our client, writer/director Richard Shepard. Miramax bought distribution rights to his film, “The Matador,” for $7.5 million at Sundance.
“The Matador” is a quirky thriller that stars Pierce Brosnan as a lonely hitman and his friendship with an unsuspecting couple from suburbia played by Greg Kinnear and Hope Davis.
CONGRATULATIONS TO “MARILYN HOTCHKISS”
Congratulations to our clients Art Klein, executive producer, and Eileen Craft, producer of “Marilyn Hotchkiss Ballroom Dancing and Charm School.” Their film received a standing ovation from the Sundance audience after its world premiere screening and got a thumbs-up review from Ain’t It Cool News. “Marilyn Hotchkiss” tells the tale of a widower whose life is changed when he goes to search for a dying man’s lost love. 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, John Goodman.
Click here for the review.
BRITISH COLUMBIA ROLLS OUT NEW INCENTIVES
In response to the new TV and film production incentives announced by Ontario and Quebec provinces, British Columbia has introduced legislation to step up its own tax incentive plan. The new incentives, which will be introduced to the provincial legislature in February, will increase the foreign production service tax credit to 18 percent, and raise the domestic tax credit to 30 percent.If ratified, the increases will take effect Jan. 1, 2005, and continue until Mar. 31, 2006. The move is seen as an attempt to keep productions from heading to the eastern provinces.
Click here for B.C.'s current film and television incentives.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
In this newsletter:
"HUSTLE & FLOW" WINS SUNDANCE AUDIENCE AWARD
Congratulations to our client, writer/director Craig Brewer. His film, "Hustle & Flow," won the American Dramatic Audience Award at the Sundance Film Festival. Winners were announced yesterday at the Park City Racquet Club. The film sold to Paramount for $9 million earlier in the week.
"Hustle & Flow" is the story of a Memphis pimp who wants to be a rap star. The picture stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning. The film should be in theaters this summer.
“THE MATADOR” SELLS TO MIRAMAX
Congratulations to our client, writer/director Richard Shepard. Miramax bought distribution rights to his film, “The Matador,” for $7.5 million at Sundance.
“The Matador” is a quirky thriller that stars Pierce Brosnan as a lonely hitman and his friendship with an unsuspecting couple from suburbia played by Greg Kinnear and Hope Davis.
CONGRATULATIONS TO “MARILYN HOTCHKISS”
Congratulations to our clients Art Klein, executive producer, and Eileen Craft, producer of “Marilyn Hotchkiss Ballroom Dancing and Charm School.” Their film received a standing ovation from the Sundance audience after its world premiere screening and got a thumbs-up review from Ain’t It Cool News. “Marilyn Hotchkiss” tells the tale of a widower whose life is changed when he goes to search for a dying man’s lost love. 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, John Goodman.
Click here for the review.
BRITISH COLUMBIA ROLLS OUT NEW INCENTIVES
In response to the new TV and film production incentives announced by Ontario and Quebec provinces, British Columbia has introduced legislation to step up its own tax incentive plan. The new incentives, which will be introduced to the provincial legislature in February, will increase the foreign production service tax credit to 18 percent, and raise the domestic tax credit to 30 percent.If ratified, the increases will take effect Jan. 1, 2005, and continue until Mar. 31, 2006. The move is seen as an attempt to keep productions from heading to the eastern provinces.
Click here for B.C.'s current film and television incentives.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Monday, January 24, 2005
CONGRATULATIONS TO OUR CLIENT, CRAIG BREWER
January 24, 2005
In this newsletter:
CONGRATULATIONS TO OUR CLIENT, CRAIG BREWER
Congratulations to our client, director and writer Craig Brewer. His film, "Hustle & Flow," was picked up for distribution by Viacom at the Sundance Film Festival for a $9 million advance. It’s part of a $16 million distribution deal -- the biggest deal ever closed at Sundance.
Viacom plans to distribute the film through all of its media channels, with theatrical to be released this summer by Paramount's not-yet-named indie films mini-major. "Hustle & Flow" will be backed by a $15 million P&A campaign primarily funded by Paramount and MTV.
"Hustle & Flow" is the story of a Memphis pimp who wants to be a rap star. The picture stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning. It will continue to screen at Sundance all week.
In this newsletter:
CONGRATULATIONS TO OUR CLIENT, CRAIG BREWER
Congratulations to our client, director and writer Craig Brewer. His film, "Hustle & Flow," was picked up for distribution by Viacom at the Sundance Film Festival for a $9 million advance. It’s part of a $16 million distribution deal -- the biggest deal ever closed at Sundance.
Viacom plans to distribute the film through all of its media channels, with theatrical to be released this summer by Paramount's not-yet-named indie films mini-major. "Hustle & Flow" will be backed by a $15 million P&A campaign primarily funded by Paramount and MTV.
"Hustle & Flow" is the story of a Memphis pimp who wants to be a rap star. The picture stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning. It will continue to screen at Sundance all week.
Monday, January 17, 2005
CONGRATULATIONS TO OUR SUNDANCE ENTRANTS
January 17, 2005
In this newsletter:
CONGRATULATIONS TO OUR SUNDANCE ENTRANTS
Congratulations to our clients whose films have been selected for the upcoming 2005 Sundance Film Festival. Screening times are listed, however times and locations are subject to change. Please check with the box office or the Sundance website at festival.sundance.org/2005/ for any updates. Director and Writer Craig Brewer, “Hustle & Flow” (Dramatic Competition) The film stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning.
In this newsletter:
CONGRATULATIONS TO OUR SUNDANCE ENTRANTS
Congratulations to our clients whose films have been selected for the upcoming 2005 Sundance Film Festival. Screening times are listed, however times and locations are subject to change. Please check with the box office or the Sundance website at festival.sundance.org/2005/ for any updates. Director and Writer Craig Brewer, “Hustle & Flow” (Dramatic Competition) The film stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning.
Tuesday, January 11, 2005
NYC OFFERS A NEW TAX INCENTIVE TO FILMMAKERS
January 11, 2005
In this newsletter:
NYC OFFERS A NEW TAX INCENTIVE TO FILMMAKERS
New York City Mayor Michael Bloomberg recently signed legislation that provides an additional 5% refundable tax credit to filmmakers shooting in the city. The credit is part of a package of “Made in NY” incentives intended to encourage more productions in the city itself, and is in addition to the 10% refundable tax credit given by the state of New York.
The NYC tax credit is applicable to all costs of below-the-line tangible property or services used or performed within any of the five boroughs of New York City. The costs must be incurred directly and predominately in the pre-production, production, and post-production of a qualified film.
The refundable tax credit is applied against the production company or film owner’s New York State taxes. Fifty percent of any unused, earned credits may be carried forward to the following year. If those credits are still unused, they become fully refundable to the production company or film owner in the third year.
Productions eligible to apply for the “Made in NY” credit include feature length films, made-for-TV movies, television pilots, and television series, and the productions must be completed sometime between this year and 2007. To qualify, 75% of the total stage work must be conducted in a qualified New York City facility. If the production spends at least $3 million during production of the film at the qualified facility, the production company is eligible for the entire 5% tax credit refund. If the production spends less than $3 million at the qualified facility, but spends at least 75% of its location days in NYC, the production company is also eligible for the entire 5% tax credit refund. If the production spends less than $3 million and shoots less than 75% of its location days in NYC, the production company will only receive a tax credit refund for the qualified costs at the qualified facility. Credits are offered on a first come, first served basis.
For more information, contact the City of New York Mayor’s Office of Film, Theatre and Broadcasting: www.nyc.gov/html/film/html/index/index.shtml .
In this newsletter:
NYC OFFERS A NEW TAX INCENTIVE TO FILMMAKERS
New York City Mayor Michael Bloomberg recently signed legislation that provides an additional 5% refundable tax credit to filmmakers shooting in the city. The credit is part of a package of “Made in NY” incentives intended to encourage more productions in the city itself, and is in addition to the 10% refundable tax credit given by the state of New York.
The NYC tax credit is applicable to all costs of below-the-line tangible property or services used or performed within any of the five boroughs of New York City. The costs must be incurred directly and predominately in the pre-production, production, and post-production of a qualified film.
The refundable tax credit is applied against the production company or film owner’s New York State taxes. Fifty percent of any unused, earned credits may be carried forward to the following year. If those credits are still unused, they become fully refundable to the production company or film owner in the third year.
Productions eligible to apply for the “Made in NY” credit include feature length films, made-for-TV movies, television pilots, and television series, and the productions must be completed sometime between this year and 2007. To qualify, 75% of the total stage work must be conducted in a qualified New York City facility. If the production spends at least $3 million during production of the film at the qualified facility, the production company is eligible for the entire 5% tax credit refund. If the production spends less than $3 million at the qualified facility, but spends at least 75% of its location days in NYC, the production company is also eligible for the entire 5% tax credit refund. If the production spends less than $3 million and shoots less than 75% of its location days in NYC, the production company will only receive a tax credit refund for the qualified costs at the qualified facility. Credits are offered on a first come, first served basis.
For more information, contact the City of New York Mayor’s Office of Film, Theatre and Broadcasting: www.nyc.gov/html/film/html/index/index.shtml .
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