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
Thursday, June 30, 2005
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
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