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

April 30, 2002

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

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

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

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

LANSDOWN Opens in New Jersey

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

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

SELF-DEFENSE FOR FILMMAKERS

April 24, 2002

SELF-DEFENSE FOR FILMMAKERS

This coming weekend (April 27 and 28, 2002) I will be teaching my UCLA extension class on Self-Defense for Filmmakers. This seminar explains how writers and filmmakers can prevent problems by properly securing underlying rights, and by encouraging other parties to live up to agreements by adding performance incentives, default penalties and arbitration clauses. In the event of a dispute, participants learn what remedies are available to enforce their rights.

Related topics include creative approvals, typical compensation and terms of studio contracts, merchandising deals, and negotiating tactics and strategies. The seminar includes more than 100 pages of useful contracts, checklists, forms and materials. MCLE credit available.

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

UPCOMING UCLA SEMINARS

April 17, 2002

UPCOMING UCLA SEMINARS

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

The Importance of an Assignment Clause

April 8, 2002

The Importance of an Assignment Clause

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

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

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

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

UCLA SEMINAR ON SELF-DEFENSE FOR FILMMAKERS

March 15, 2002

UCLA SEMINAR ON SELF-DEFENSE FOR FILMMAKERS

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

Writers and filmmakers need to understand their legal rights and how to defend themselves from those who may seek to exploit them. This seminar explains how writers and filmmakers can prevent problems by properly securing underlying rights, and by encouraging other parties to live up to agreements by adding performance incentives, default penalties and arbitration clauses. In the event of a dispute, participants learn what remedies are available to enforce their rights.
Related topics include creative approvals, typical compensation and terms of studio contracts, merchandising deals, and negotiatúing tactics and strategies. The seminar includes more than 100 pages of useful contracts, checklists, forms and materials. MCLE credit available.

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

BERMUDA FILM FESTIVAL

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

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

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

FESTIVAL LIST

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

Articles Published

March 13, 2002

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

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

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

CHANGE OF ADDRESS

February 22, 2002

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

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

“The Accountant” nominated for Academy Award

February 16, 2002

“The Accountant” nominated for Academy Award

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

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

MANAGER ATTEMPTING TO OPTION SCREENPLAY VIOLATES LABOR CODE

February 8, 2002

MANAGER ATTEMPTING TO OPTION SCREENPLAY VIOLATES LABOR CODE

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

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

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

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

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

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

BORROWING FILM CLIPS DEEMED A FAIR USE

January 12, 2002

BORROWING FILM CLIPS DEEMED A FAIR USE

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

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

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