Friday, November 22, 2002

Unauthorized Depiction of Real People Does Not Violate Rights Says Federal District Court

November 22, 2002

In This Newsletter:

Unauthorized Depiction of Real People Does Not Violate Rights Says Federal District Court

A Federal District Court has ruled that the unauthorized depiction of relatives of deceased members of the crew featured in "The Perfect Storm" does not violate their rights of privacy, nor is it commercial misappropriation under Florida law. Claims by a surviving member of the crew were also dismissed.

In the case brought against Warner Bros. and its co-defendants, Judge Anne Conway ruled that movies are not a "commercial purpose" under a Florida statute and so the use of real people's names in a film does not violate the statute. Even if movies were covered under the statute, the film is protected by the First Amendment and so there would be no grounds to sue on this issue.

The plaintiffs argued that since the movie was a fictionalized account, the statute should apply. Judge Conway found that fictionalization was "immaterial," as the statute has never been interpreted to include falsity as a factor.

Judge Conway also dismissed plaintiffs' claim of false light invasion of privacy argument, determining that the deceased family members' privacy interests could not be legally represented by their living relatives. Invasion of privacy is a personal right that does not descend to one's heirs. As for the relatives themselves, the judge said they were not falsely depicted in the film, so they had no standing.

Finally, plaintiffs unsuccessfully argued that the film disclosed private facts. The judge ruled that this claim requires the disclosed facts to be both private and true, whereas the plaintiffs contended that the disclosed facts were false.

Motion for Summary Judgment was granted to Warner Bros.
Tyne v. Time Warner, 204 F.Supp.2d 1338, 2002 U.S.Dist.LEXIS 9912 (M.D.Fla. 2002)

“Pendulum” to Show on Cinemax
"Pendulum," from our client Charles Acosta, will be running on Cinemax later this month.

Winner of the 2001 Deep Ellum Film Festival "Best Dramatic Feature" Award, and official selection at the 2001 Hollywood Film Festival and San Marco Film Festival, "Pendulum" is a crime/suspense story about power and gender. A woman police detective (Rachel Hunter) tries to crack a murder case whose facts are covered up by a boys' club. The film also stars James Russo and Matt Battaglia.

"Pendulum" airs Nov. 30 and Dec. 16 on Cinemax. Check local listings for showtimes.
Click here to go to the "Pendulum" website:

“To End All Wars” to Open at L.A.’s Arclight Cinemas
Our client, producer Jack Hafer, is proud to announce a one week exclusive engagement of the film, "To End All Wars," at the ArcLight Cinemas in Hollywood from December 6 – 12.

"To End All Wars" is based on a true story about four Allied POWs who endure harsh treatment at the hands of their Japanese captors during World War II while being forced to build a railroad through the Burmese jungle. Ultimately they find true freedom by forgiving their enemies. The film stars Robert Carlyle and Kiefer Sutherland. The film has been shown at many festivals including Toronto and Telluride.
Click here for the "To End All Wars" website: Arclight Cinemas at 323.464.1478 for tickets and show times or visit them on the web at

Mark Litwak Discusses Dead Celebrity Rights in Nov/Dec. SCREENTALK
What privacy rights to dead celebrities have? In the November/December issue, four entertainment attorneys, including Mark Litwak, answer common questions filmmakers ask about what can and can't be done with a celebrity's name and likeness in a project.Screentalk can be found on newsstands and online at November/December table of contents is available at

Saturday, November 09, 2002

Novel May Have Infringed Non-Fiction Book

November 9, 2002

In This Newsletter:

Novel May Have Infringed Non-Fiction Book

It is well established under copyright law that historical facts are not copyrightable. Facts, ideas, themes, subject matter and titles are inherently not eligible for copyright protection. Thus, a novelist can freely borrow facts from encyclopedias, newspapers and other source books and incorporate these facts in his own a fictional work. Moreover, actual quoted comments from third parties should not be copyrightable since they are not original to the author -- and originality is one of the requirements for copyright protection. An interesting case brought in Utah, however, has resulted in a ruling that the author of a non-fiction book might have a claim against a novelist who borrowed information from his work.

The Plaintiff was a W.W. II veteran who wrote a memoir about his experiences including participating in the Bataan Death March. The defendants are Dean Hughes the author of the "Children of the Promise" series of novels and his publisher. The novels portray the life of a Mormon family. A portion of one novel closely follows the Plaintiff’s actual experiences as told in his non-fiction book.

The federal district court granted defendants motion to dismiss because a non-fiction book is entitled to minimal protection under copyright law, and because the novel borrowed only unprotected facts. But the Court of Appeals reversed, and sent the matter back to the trial level.

The Appellate court said that while “supersubstantial similarity” must ordinarily be shown in infringement cases based on borrowing from factual compilations, such as telephone directories, the non-fiction book here contained more creative effort and original expression. Therefore, the appropriate standard that should have been used by the lower court was “substantial similarity.” The court noted that both books contained identical scenes, and the novelist had borrowed the actual remarks of persons as quoted in the non-fiction book. While borrowing such third-party quotes would usually not be a basis for copyright infringement (because third party quotes are not original to the book author), the court reasoned that the quotes here were more likely paraphrased remarks. The court noted that the author did not contemporaneously record the actual words spoken, and thus the quoted material is more likely to be the author’s expression based on his recollection of what others said, rather than the actual words that were spoken.
Jacobsen v. Deseret Book Co., 287 F.3d 936, 2002 U.S. App. LEXIS 7351 (10th Cir. 2002).

Mark Litwak to Speak at the Deep Ellum Film Festival
I will be presenting a special workshop on November 16, 2002 at the upcoming Deep Ellum Film Festival in Dallas, Texas. The three-hour 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 the negative, utilizing termination and arbitration clauses.
Details: Admission $20Deep Ellum Film Festival HeadquartersSaturday, November 16, 2002 from 2:00 pm to 5:00 pmLimited to 50 peoplePlease RSVP to include name, phone numbers, and address
I will also be participating in a panel discussion on November 17 at 11:00 AM on “Film Distribution... I've made a film, how do I sell it?" This panel explores the many facets of independent film distribution, and how an independent filmmaker can better his odds.Deep Ellum Film Festival: