March 19, 2003
In This Newsletter:
COURT TV CAN USE NEWS FOOTAGE WITHOUT A LICENSE AS A FAIR USE
Plaintiff Los Angeles News Service generates income by licensing video footage to news stations. It has licensed the footage of the beating of Reginald Denny during the L.A. riots, which occurred after the acquittal of police officers accused of beating Rodney King. Some news outlets, however, have used the footage without a license, claiming their use is a fair use permitted under the Copyright Act.
LA News Service sued Court TV and Group W Newsfeed (now owned by CBS) after Court TV used segments of the Reginald Denny video footage to promote its coverage of the trial of one of those accused of beating Denny, and after Group W Newsfeed distributed the footage to its subscribers. Initially a Federal District Judge dismissed the case on a motion for summary judgment. On appeal, LA News was able to partially reverse that ruling because critical pieces of evidence offered by the Plaintiff were excluded as inadmissible. The Judge found that some of the evidence was, in fact, admissible and could be used by a jury to decide in LA News Service's favor. The dismissal was therefore reversed.
However, Court TV had used this clip to tease coverage for a related trial and an evening news program. Based on the specific facts, the Court of Appeals affirmed dismissal of LA News Service's claims, stating that Court TV had a right to air the clips based on the fair use doctrine.
Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924, 2002 U.S.App.LEXIS 18843 (9th Cir. 2002)
"DUNSMORE" TO SCREEN AT METHOD FEST AND BIFF
Congratulations to our clients, Peter Spirer and Michael Andrews. Their film, "Dunsmore," has been selected for screening at the Bermuda International Film Festival and for a West Coast premiere at Method Fest, which will be held in Burbank, California. Both festivals are in April.
For more information about Method Fest, visit their website at:http://www.methodfest.com/methodfest_2001/index.htm
For more information about Bermuda International Film Festival, visit their website at:http://www.bermudafilmfest.com/
HARD WORK AND SELF-DISTRIBUTION BRING PRESS TO FILMMAKER
In another example of how elbow grease and ingenuity do pay off, VideoBusiness magazine featured our client Jimi Petulla and his self-distributed film, "Reversal," in a recent issue.
Unable to land a distribution agreement, Petulla set up a website to sell the film directly to viewers and has sold about 13,000 DVD copies in 120 days. He attributes the sales volume to the film's "niche appeal," saying, "Filmmakers need to know that if you have movie in a niche, you can reach that niche through the Internet."
VideoBusiness magazine can be found at: http://www.videobusiness.comVisit the official "Reversal" website at: http://www.reversalthemovie.com
FIND PRODUCT PLACEMENT CONTACTS ONLINE AT E.R.M.A.
Filmmakers looking for product placement deals can search online at: http://www.erma.org
The website, run by E.R.M.A., the Entertainment Resources & Marketing Association, lists contacts for more than 70 companies that represent dozens of well-known brands. The site also contains information on the organization itself, which seeks to "ensure high-quality ethics and standards of operation in the industry."
Wednesday, March 19, 2003
Wednesday, January 29, 2003
Congress Allows Educators to Transmit Copyrighted Works over Internet
January 29, 2003
In This Newsletter:
Mark Litwak to Lecture at University of British Columbia Feb. 6-8
Mark Litwak will be teaching two of his most popular day-and-a-half courses at the University of British Columbia in February.
"Self-defense for Writers & Filmmakers" will be held February 6-7. This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights and by encouraging the other party to live up to agreements by adding performance milestones, default penalties and arbitration clauses. Participants will also learn what remedies are available to enforce their rights in the event of a dispute.
"Financing and Distributing Independent Features" will be held February 7-8. This seminar explores how independent films are financed and distributed. The seminar includes an extensive handout with a long-form distribution contract, checklists and other materials useful in preparing to raise cash and distribute your film.
For more information and online registration, click here:http://www.cstudies.ubc.ca/newsletter/film/
Congress Allows Educators to Transmit Copyrighted Works over Internet
While the United States has some of the most protective copyright laws in the world, certain groups are exempt from licensing copyrighted material. Among these are non-profit educators who, since 1976, have been free to perform copyrighted works in classrooms and transmit copyrighted nondramatic literary and musical works to classrooms via closed-circuit television without copyright licenses.
Now, thanks to a recent amendment by Congress, non-profit educators can use copyrighted works of almost any kind in distance education courses conducted over the Internet. The transmission can be made to anywhere the enrolled student is, so long as the transmission is part of the equivalent of an in-class discussion.
The amendment, known as the TEACH Act, allows non-profit instructors to transmit "reasonable and limited portions" of movies and music in addition to works previously allowed for license-free use under the 1976 Copyright Act.
The TEACH Act does not change the fair use doctrine. To prevent abuse, the Act has two limitations: only accredited non-profit educational institutions may receive the exemption and "secure tests" such as the SAT and works "primarily" used in Internet instruction must still be licensed.
Hollywood.com to Host 2-day Pitch & Networking Conference
Hollywood.com, founder of the Hollywood Film Festival, will host a pitch and networking conference on March 1 & 2, 2003 called "Sell Your Story to Hollywood Buyers."
Registration for "Sell Your Story to Hollywood Buyers" is $195 by January 31, $245 after.For more information and to register, call 310-288-1882 or click here:http://www.hollywoodawards.com/writing/index3.html
In This Newsletter:
Mark Litwak to Lecture at University of British Columbia Feb. 6-8
Mark Litwak will be teaching two of his most popular day-and-a-half courses at the University of British Columbia in February.
"Self-defense for Writers & Filmmakers" will be held February 6-7. This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights and by encouraging the other party to live up to agreements by adding performance milestones, default penalties and arbitration clauses. Participants will also learn what remedies are available to enforce their rights in the event of a dispute.
"Financing and Distributing Independent Features" will be held February 7-8. This seminar explores how independent films are financed and distributed. The seminar includes an extensive handout with a long-form distribution contract, checklists and other materials useful in preparing to raise cash and distribute your film.
For more information and online registration, click here:http://www.cstudies.ubc.ca/newsletter/film/
Congress Allows Educators to Transmit Copyrighted Works over Internet
While the United States has some of the most protective copyright laws in the world, certain groups are exempt from licensing copyrighted material. Among these are non-profit educators who, since 1976, have been free to perform copyrighted works in classrooms and transmit copyrighted nondramatic literary and musical works to classrooms via closed-circuit television without copyright licenses.
Now, thanks to a recent amendment by Congress, non-profit educators can use copyrighted works of almost any kind in distance education courses conducted over the Internet. The transmission can be made to anywhere the enrolled student is, so long as the transmission is part of the equivalent of an in-class discussion.
The amendment, known as the TEACH Act, allows non-profit instructors to transmit "reasonable and limited portions" of movies and music in addition to works previously allowed for license-free use under the 1976 Copyright Act.
The TEACH Act does not change the fair use doctrine. To prevent abuse, the Act has two limitations: only accredited non-profit educational institutions may receive the exemption and "secure tests" such as the SAT and works "primarily" used in Internet instruction must still be licensed.
Hollywood.com to Host 2-day Pitch & Networking Conference
Hollywood.com, founder of the Hollywood Film Festival, will host a pitch and networking conference on March 1 & 2, 2003 called "Sell Your Story to Hollywood Buyers."
Registration for "Sell Your Story to Hollywood Buyers" is $195 by January 31, $245 after.For more information and to register, call 310-288-1882 or click here:http://www.hollywoodawards.com/writing/index3.html
Friday, December 20, 2002
Hawaii Offers Generous Tax Credits to Film Production Companies
December 20, 2002
In This Newsletter:
Hawaii Offers Generous Tax Credits to Film Production Companies
Hawaii recently enacted some very impressive and generous tax incentives. Hawaii’s high tech investment tax credit provides a 100% return on cash investments in a qualified high tech business (QHTB) on a front-loaded basis over 5 years (35% credit in the year of investment, 25% in the following year, 20% in the second year following, then 10% each in the third and fourth year following). Qualified research activities include performing arts products such as motion pictures. The credit is designed to give a 100% return for investments up to $2 million per year per QHTB. The credit applies against Hawaii income tax liability only. The credit can be taken by individuals and corporations paying Hawaii income tax, and by banks and insurance companies against their franchise and insurance premium tax.
Moreover, if money from outside Hawaii is invested, the tax benefits can be allocated to the Hawaiian investors so they can obtain more than 100% return. So for example, if a Hawaii investor put up $500,000 and an Arkansas investor put up $500,000, the parties could agree to allocate all the tax credits to the Hawaii investor (since the Arkansas investor doesn't pay taxes in Hawaii they are worthless to him anyway). So the Hawaii investors gets back 200% return over 5 years. In return, the Arkansas investor could be given a greater share of the back end, or preferred recoupment.
The production entity would be required to employ or own capital or property or maintain an office in Hawaii, to have more than 50% of its total business activities in performing arts products and to conduct more than 75% of those activities in Hawaii. In other words, 75% of the budget needs to be spent in Hawaii. I currently represent a Hawaiian company that can serve as the production entity that has received a comfort ruling from the Department of Taxation indicating that the company qualifies.
In order to qualify, companies need to stay in business in Hawaii for at least five years, and should have some copyright ownership of the picture. There are many more details but those are the basics. For additional information about Hawaii’s tax incentives, goto http://www.state.hi.us/tax/hi_tech.html.
I am working with a major Hawaiian law firm and a large Hawaiian bank on several co-productions. I am looking for projects that can be shot in Hawaii that have partial financing, preferably at least half the budget from non-Hawaiian sources. Note that there are not many shooting stages or post facilities in Hawaii, so stories that can be shot on location in Hawaii are best.
"Tom Dowd and the Language of Music" to Screen at Sundance
Congratulations to our clients Mark Moormann and Mark Hunt. Their film, TOM DOWD AND THE LANGUAGE OF MUSIC, has been selected for the 2003 Sundance Film Festival's Documentary competition.
The documentary describes the life and influence of Tom Dowd, legendary recording engineer and producer. Dowd helped shape the sounds of a wide variety of pop, R&B, soul, jazz and roll & roll artists including Ron Stewart, Aretha Franklin, John Coltrane, and Eric Clapton.
For more information about "Tom Dowd and the Language of Music," visit http://www.thelanguageofmusic.com/.
Composer Can't Sue for Copyright Infringement
A federal District Court in Los Angeles has ruled that though composer Richard Warren can sue Fox Family Worldwide for breach of contract he cannot sue for copyright infringement, in a case that pitted the "Remington Steele" composer against the media conglomerate.
In the 1980's, Warren signed several composer agreements with the "Remington Steele" series producer, MTM. Some of these agreements did not include the phrase "work made for hire" and none of them specified that Warren's work was "specially ordered or commissioned." The agreements did entitle Warren to the writer's share ofASCAP and BMI performance fees. In addition, if the show were licensed to companies that did not hold ASCAP or BMI licenses, the producer would pay a portion of the license fees to Warren.
Fox Family Worldwide succeeded MTM and assumed the license rights to "Remington Steele." Fox Family eventually signed agreements to license the show to the Christian Broadcasting Network and Princess Cruises, neither of which held ASCAP or BMI licenses when the agreements were signed. Fox Family failed to pay Warren.
Warren sued for copyright infringement and asked that his agreements be rescinded and his full rights to the music copyright be returned because Fox Family never paid the performance fees. The District Court ruled that the agreements Warren signed were in fact work for hire agreements, making Fox Family the rightful copyright holder. Therefore, Warren had no standing to sue for copyright infringement.
The court refused to grant Warren's request for rescission, stating that, "where…there is an express contractual obligation to pay royalties, the remedy for breach is clear, and the implication of a right to rescind is not necessary."
The District court granted Fox Family's motion to dismiss the lawsuit.Warren v. Fox Family Worldwide, Inc., 171 F.Supp.2d 1057, 201 U.S.Dist.LEXIS 22207 (C.D.Cal. 2001)
In This Newsletter:
Hawaii Offers Generous Tax Credits to Film Production Companies
Hawaii recently enacted some very impressive and generous tax incentives. Hawaii’s high tech investment tax credit provides a 100% return on cash investments in a qualified high tech business (QHTB) on a front-loaded basis over 5 years (35% credit in the year of investment, 25% in the following year, 20% in the second year following, then 10% each in the third and fourth year following). Qualified research activities include performing arts products such as motion pictures. The credit is designed to give a 100% return for investments up to $2 million per year per QHTB. The credit applies against Hawaii income tax liability only. The credit can be taken by individuals and corporations paying Hawaii income tax, and by banks and insurance companies against their franchise and insurance premium tax.
Moreover, if money from outside Hawaii is invested, the tax benefits can be allocated to the Hawaiian investors so they can obtain more than 100% return. So for example, if a Hawaii investor put up $500,000 and an Arkansas investor put up $500,000, the parties could agree to allocate all the tax credits to the Hawaii investor (since the Arkansas investor doesn't pay taxes in Hawaii they are worthless to him anyway). So the Hawaii investors gets back 200% return over 5 years. In return, the Arkansas investor could be given a greater share of the back end, or preferred recoupment.
The production entity would be required to employ or own capital or property or maintain an office in Hawaii, to have more than 50% of its total business activities in performing arts products and to conduct more than 75% of those activities in Hawaii. In other words, 75% of the budget needs to be spent in Hawaii. I currently represent a Hawaiian company that can serve as the production entity that has received a comfort ruling from the Department of Taxation indicating that the company qualifies.
In order to qualify, companies need to stay in business in Hawaii for at least five years, and should have some copyright ownership of the picture. There are many more details but those are the basics. For additional information about Hawaii’s tax incentives, goto http://www.state.hi.us/tax/hi_tech.html.
I am working with a major Hawaiian law firm and a large Hawaiian bank on several co-productions. I am looking for projects that can be shot in Hawaii that have partial financing, preferably at least half the budget from non-Hawaiian sources. Note that there are not many shooting stages or post facilities in Hawaii, so stories that can be shot on location in Hawaii are best.
"Tom Dowd and the Language of Music" to Screen at Sundance
Congratulations to our clients Mark Moormann and Mark Hunt. Their film, TOM DOWD AND THE LANGUAGE OF MUSIC, has been selected for the 2003 Sundance Film Festival's Documentary competition.
The documentary describes the life and influence of Tom Dowd, legendary recording engineer and producer. Dowd helped shape the sounds of a wide variety of pop, R&B, soul, jazz and roll & roll artists including Ron Stewart, Aretha Franklin, John Coltrane, and Eric Clapton.
For more information about "Tom Dowd and the Language of Music," visit http://www.thelanguageofmusic.com/.
Composer Can't Sue for Copyright Infringement
A federal District Court in Los Angeles has ruled that though composer Richard Warren can sue Fox Family Worldwide for breach of contract he cannot sue for copyright infringement, in a case that pitted the "Remington Steele" composer against the media conglomerate.
In the 1980's, Warren signed several composer agreements with the "Remington Steele" series producer, MTM. Some of these agreements did not include the phrase "work made for hire" and none of them specified that Warren's work was "specially ordered or commissioned." The agreements did entitle Warren to the writer's share ofASCAP and BMI performance fees. In addition, if the show were licensed to companies that did not hold ASCAP or BMI licenses, the producer would pay a portion of the license fees to Warren.
Fox Family Worldwide succeeded MTM and assumed the license rights to "Remington Steele." Fox Family eventually signed agreements to license the show to the Christian Broadcasting Network and Princess Cruises, neither of which held ASCAP or BMI licenses when the agreements were signed. Fox Family failed to pay Warren.
Warren sued for copyright infringement and asked that his agreements be rescinded and his full rights to the music copyright be returned because Fox Family never paid the performance fees. The District Court ruled that the agreements Warren signed were in fact work for hire agreements, making Fox Family the rightful copyright holder. Therefore, Warren had no standing to sue for copyright infringement.
The court refused to grant Warren's request for rescission, stating that, "where…there is an express contractual obligation to pay royalties, the remedy for breach is clear, and the implication of a right to rescind is not necessary."
The District court granted Fox Family's motion to dismiss the lawsuit.Warren v. Fox Family Worldwide, Inc., 171 F.Supp.2d 1057, 201 U.S.Dist.LEXIS 22207 (C.D.Cal. 2001)
Friday, December 13, 2002
Texan Can't Be Sued in California for Releasing DVD Decryption Software on the Web
December 13, 2002
In This Newsletter:
Mark Litwak to Speak at HarvardOn Sunday, December 22 at 2PM, Mark Litwak will give a one-hour lecture on "Self-defense for Filmmakers" at Harvard University.
This free seminar is open to the public and will be held in the Graduate Student Lounge, 2nd Floor, Lehman Hall. Anyone planning to attend should RSVP to Valerie Weiss at vhweiss@fas.harvard.edu. You must arrive on time as the entrance doors will be locked at 2PM.
For more information, please visit the Dudley Film Program website at http://go.to/dudleyfilm.
"Levity" to Open 2003 Sundance Film Festival
Congratulations to our client Echo Lake Productions. Their film, LEVITY, has been selected to screen as the opening night film at the 2003 Sundance Film Festival. The directorial debut of screenwriter Ed Solomon (MEN IN BLACK), the film will be distributed in the U.S. by Columbia TriStar and internationally by Canal+. The film stars Billy Bob Thornton, Morgan Freeman, Holly Hunter, and Kirsten Dunst.
For more information about Levity, visit Echo Lake Productions' website at http://www.echolakeproductions.com/intheaters/intheaters.htm.
Texan Can't Be Sued in California for Releasing DVD Decryption Software on the Web
In a ruling that has the DVD industry worried, California's Supreme Court has decided that the state has no jurisdiction in a trade secret infringement lawsuit involving the Web-based LiViD video project and California's DVD Copy Control Association.
The DVD Copy Control Association alleged that LiVid's founder, Matthew Pavlovich, infringed its trade secrets in posting code on the Internet that could unscramble its encryption software. Furthermore, the Association argued that the movie industry, with so many companies based in California, would suffer if DVDs could be illegally copied at leisure. The case should therefore be adjudicated in California.
In a 4-3 decision, the California high court said that it had no personal jurisdiction over Pavlovich, who lives and works in Texas and was a student in Indiana when he first posted the decryption code, known as DeCSS.
The majority stated that Pavlovich had no apparent California contacts. Furthermore, that although his software was posted on the Web, his site "merely posts information and has no interactive features." There was nothing on the Website to show there was any intent, express or implied, to directly target California and its DVD and movie industries. As Pavlovich did not have sufficient "minimum contacts" in the state and had no intent to impact state business, he could not be sued in California
The majority expressed concern that if Websites like Pavlovich's, which contained nothing more than information and no interactive features, could be the basis for jurisdiction, then "mere use of the Internet would subject the user to personal jurisdiction in any forum where the site was accessible."
The dissenters in the case argued that though Pavlovich had never established a residence or business address in California, the code he posted on the Internet could be used by anyone in every state, including California.
In addition, the dissenters stated that Pavlovich knew or should have known that posting DeCSS to his Website would harm the DVD and movie industries, and he knew or should have known that these industries are primarily based in California. Therefore, Pavlovich did target California's DVD and movie industries.
It is expected that the case will be brought for consideration before the U.S. Supreme Court.
In This Newsletter:
Mark Litwak to Speak at HarvardOn Sunday, December 22 at 2PM, Mark Litwak will give a one-hour lecture on "Self-defense for Filmmakers" at Harvard University.
This free seminar is open to the public and will be held in the Graduate Student Lounge, 2nd Floor, Lehman Hall. Anyone planning to attend should RSVP to Valerie Weiss at vhweiss@fas.harvard.edu. You must arrive on time as the entrance doors will be locked at 2PM.
For more information, please visit the Dudley Film Program website at http://go.to/dudleyfilm.
"Levity" to Open 2003 Sundance Film Festival
Congratulations to our client Echo Lake Productions. Their film, LEVITY, has been selected to screen as the opening night film at the 2003 Sundance Film Festival. The directorial debut of screenwriter Ed Solomon (MEN IN BLACK), the film will be distributed in the U.S. by Columbia TriStar and internationally by Canal+. The film stars Billy Bob Thornton, Morgan Freeman, Holly Hunter, and Kirsten Dunst.
For more information about Levity, visit Echo Lake Productions' website at http://www.echolakeproductions.com/intheaters/intheaters.htm.
Texan Can't Be Sued in California for Releasing DVD Decryption Software on the Web
In a ruling that has the DVD industry worried, California's Supreme Court has decided that the state has no jurisdiction in a trade secret infringement lawsuit involving the Web-based LiViD video project and California's DVD Copy Control Association.
The DVD Copy Control Association alleged that LiVid's founder, Matthew Pavlovich, infringed its trade secrets in posting code on the Internet that could unscramble its encryption software. Furthermore, the Association argued that the movie industry, with so many companies based in California, would suffer if DVDs could be illegally copied at leisure. The case should therefore be adjudicated in California.
In a 4-3 decision, the California high court said that it had no personal jurisdiction over Pavlovich, who lives and works in Texas and was a student in Indiana when he first posted the decryption code, known as DeCSS.
The majority stated that Pavlovich had no apparent California contacts. Furthermore, that although his software was posted on the Web, his site "merely posts information and has no interactive features." There was nothing on the Website to show there was any intent, express or implied, to directly target California and its DVD and movie industries. As Pavlovich did not have sufficient "minimum contacts" in the state and had no intent to impact state business, he could not be sued in California
The majority expressed concern that if Websites like Pavlovich's, which contained nothing more than information and no interactive features, could be the basis for jurisdiction, then "mere use of the Internet would subject the user to personal jurisdiction in any forum where the site was accessible."
The dissenters in the case argued that though Pavlovich had never established a residence or business address in California, the code he posted on the Internet could be used by anyone in every state, including California.
In addition, the dissenters stated that Pavlovich knew or should have known that posting DeCSS to his Website would harm the DVD and movie industries, and he knew or should have known that these industries are primarily based in California. Therefore, Pavlovich did target California's DVD and movie industries.
It is expected that the case will be brought for consideration before the U.S. Supreme Court.
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: http://www.pendulumfilm.com/home.htm
“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: http://www.toendallwars.com/Call Arclight Cinemas at 323.464.1478 for tickets and show times or visit them on the web at http://www.arclightcinemas.com.
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 http://www.screentalk.org.The November/December table of contents is available at http://www.screentalk.org/currentissue.htm.
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: http://www.pendulumfilm.com/home.htm
“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: http://www.toendallwars.com/Call Arclight Cinemas at 323.464.1478 for tickets and show times or visit them on the web at http://www.arclightcinemas.com.
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 http://www.screentalk.org.The November/December table of contents is available at http://www.screentalk.org/currentissue.htm.
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 Workshop@def2.org 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: http://www.def2.org
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 Workshop@def2.org 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: http://www.def2.org
Monday, September 30, 2002
Supreme Court to Review Challenge to Copyright Term Extension Act
September 30, 2002
Supreme Court to Review Challenge to Copyright Term Extension Act
On October 9, the Supreme Court will hear oral arguments that will determine the constitutionality of the Sonny Bono Copyright Term Extension Act.
The Act, effective since 1998, extends the length of time an author can retain copyright to their work. Petitioners in the Supreme Court case are challenging the Act, calling it an unconstitutional exercise of congressional power that violates the First Amendment and unduly burdens those who seek to create new works based on old ones. They are hoping the Court will strike down the Act and potentially prevent Congress from further extending the length of time a work may be copyrighted.
The government argues that it has the constitutional right to determine the length of both new and existing copyrights and does not violate the First Amendment.
For more on Eldred v. Ashcroft, see http://eldred.cc/
Internet Entertainment Company Sues Movie StudiosA Web-based video-on-demand company has filed an anti-trust suit against three major movies studios, alleging that the studios are conspiring to kill their online competition.
While the complaint, filed by Culver City-based Intertainer, Inc., accuses AOL Time Warner, Sony, and Vivendi Universal of working together to fix pricing for content on demand, the heart of the suit lies in the question of who will control direct-to-viewer digital distribution.
Last year, the three studios had announced they were joining forces to form Movielink, an Internet video-on-demand service that directly competes with Intertainer.
Intertainer, Inc.http://www.intertainer.com/
Movielinkhttp://www.movielink.com/Read the Intertainer Complaint (PDF file)http://www.intertainer.com/intertainer.pdf
Supreme Court to Review Challenge to Copyright Term Extension Act
On October 9, the Supreme Court will hear oral arguments that will determine the constitutionality of the Sonny Bono Copyright Term Extension Act.
The Act, effective since 1998, extends the length of time an author can retain copyright to their work. Petitioners in the Supreme Court case are challenging the Act, calling it an unconstitutional exercise of congressional power that violates the First Amendment and unduly burdens those who seek to create new works based on old ones. They are hoping the Court will strike down the Act and potentially prevent Congress from further extending the length of time a work may be copyrighted.
The government argues that it has the constitutional right to determine the length of both new and existing copyrights and does not violate the First Amendment.
For more on Eldred v. Ashcroft, see http://eldred.cc/
Internet Entertainment Company Sues Movie StudiosA Web-based video-on-demand company has filed an anti-trust suit against three major movies studios, alleging that the studios are conspiring to kill their online competition.
While the complaint, filed by Culver City-based Intertainer, Inc., accuses AOL Time Warner, Sony, and Vivendi Universal of working together to fix pricing for content on demand, the heart of the suit lies in the question of who will control direct-to-viewer digital distribution.
Last year, the three studios had announced they were joining forces to form Movielink, an Internet video-on-demand service that directly competes with Intertainer.
Intertainer, Inc.http://www.intertainer.com/
Movielinkhttp://www.movielink.com/Read the Intertainer Complaint (PDF file)http://www.intertainer.com/intertainer.pdf
Friday, September 13, 2002
Lucasfilm Can’t Block Pornographic “Star Wars” Parody
September 13, 2002
Lucasfilm Can’t Block Pornographic “Star Wars” Parody
In a brief decision, U.S. District Court Judge Claudia Wilken thwarted Lucasfilm Ltd.’s attempt to block distribution of an animated, pornographic parody of “Star Wars.”
Lucasfilm had tried for a preliminary injunction against Media Market Group, producer or distributor of the porn parody “Starballz,” claming trademark dilution, copyright infringement and trademark infringement.
While the judge said the film “tarnishes the Star Wars family of marks by associating them with a pornographic film that is inconsistent with the image Star Wars has striven to maintain for itself,” she noted that because the film is a parody, Lucasfilm failed to prove that it was likely to succeed on any of its claims.
FTC Warns Web Search Engines to Make Sponsorships Clear
Wonder why some websites are always tops on the hit list?
The Federal Trade Commission has been wondering the same thing and has issued a recommendation that all search engines clearly show which companies have paid for positioning.
Prompted by a complaint letter filed by an anti-commercialism organization, the F.T.C. conducted an investigation into whether search engine companies misled its users by quietly inserting advertisements into search results.
The F.T.C. determined that while most search engines usually distinguish paid advertisements from unpaid listings, the disclosures were not sufficiently clear in some cases.
“As a general matter, clear and conspicuous disclosures would put consumers in a position to better determine the importance of these (paid inclusion) practices in their choice of search engines to use,” the F.T.C. wrote.
For the complete FTC response, see http://www.ftc.gov/os/closings/staff/commercialalertletter.htm. For the letter sent to the search engine companies, see http://www.ftc.gov/os/closings/staff/commercialalertattatch.htm.
25 New Faces
Congratulations to Craig Brewer for the distinction of being named one of the “25 New Faces of Indie Film” in the summer issue of Filmmaker Magazine. Craig’s low budget feature, “The Poor and Hungry” is a love story between a car thief and a cello player set in Memphis, Tennessee. The film has been shown on the Independent Film Channel.
August 6, 2002
Film Finders Offers Free Listings
Film Finders, a 15 year-old feature film tracking service and database for distributors seeking to buy films and also for film festivals for their programming purposes wants to list your feature for free! They will also grant you temporary free access to their website which lists all world companies currently buying and selling films plus all films currently available in the world markets. Lastly, they provide unique consulting services especially designed for independent producers and will send you info describing these services. Contact: PeterBelsito@filmfinders.com. Go to http://www.filmfinders.com/
Court Declines To Dismiss Lawsuit Against Publisher Of “Hit Man.”
Generally, publishers are well protected by the First Amendment’s guarantee of free expression. But when Paladin Enterprises, published the book “Hit Man, A Technical Manual for Independent Contractors” it may have gone too far. A hit man allegedly attempted to murder plaintiff Bobby Joe Wilson in accordance with the book’s instructions. While the attempted murder failed, the victim and her son were injured. They sued the publisher for aiding, abetting and conspiring to commit assault and battery. The publisher asked the court to dismiss the lawsuit. Federal Magistrate Thomas Coffin rejected the publisher’s First Amendment defense citing the prior case of Rice v. Paladin Enterprises which concerned another lawsuit against the same publisher arising from another reader’s criminal actions. Wilson v. Paladin Enterprises, 186 F. Supp.2d 1140, 2001 U.S. Dist.LEXIS 23661 (D.Or.2001).
Lucasfilm Can’t Block Pornographic “Star Wars” Parody
In a brief decision, U.S. District Court Judge Claudia Wilken thwarted Lucasfilm Ltd.’s attempt to block distribution of an animated, pornographic parody of “Star Wars.”
Lucasfilm had tried for a preliminary injunction against Media Market Group, producer or distributor of the porn parody “Starballz,” claming trademark dilution, copyright infringement and trademark infringement.
While the judge said the film “tarnishes the Star Wars family of marks by associating them with a pornographic film that is inconsistent with the image Star Wars has striven to maintain for itself,” she noted that because the film is a parody, Lucasfilm failed to prove that it was likely to succeed on any of its claims.
FTC Warns Web Search Engines to Make Sponsorships Clear
Wonder why some websites are always tops on the hit list?
The Federal Trade Commission has been wondering the same thing and has issued a recommendation that all search engines clearly show which companies have paid for positioning.
Prompted by a complaint letter filed by an anti-commercialism organization, the F.T.C. conducted an investigation into whether search engine companies misled its users by quietly inserting advertisements into search results.
The F.T.C. determined that while most search engines usually distinguish paid advertisements from unpaid listings, the disclosures were not sufficiently clear in some cases.
“As a general matter, clear and conspicuous disclosures would put consumers in a position to better determine the importance of these (paid inclusion) practices in their choice of search engines to use,” the F.T.C. wrote.
For the complete FTC response, see http://www.ftc.gov/os/closings/staff/commercialalertletter.htm. For the letter sent to the search engine companies, see http://www.ftc.gov/os/closings/staff/commercialalertattatch.htm.
25 New Faces
Congratulations to Craig Brewer for the distinction of being named one of the “25 New Faces of Indie Film” in the summer issue of Filmmaker Magazine. Craig’s low budget feature, “The Poor and Hungry” is a love story between a car thief and a cello player set in Memphis, Tennessee. The film has been shown on the Independent Film Channel.
August 6, 2002
Film Finders Offers Free Listings
Film Finders, a 15 year-old feature film tracking service and database for distributors seeking to buy films and also for film festivals for their programming purposes wants to list your feature for free! They will also grant you temporary free access to their website which lists all world companies currently buying and selling films plus all films currently available in the world markets. Lastly, they provide unique consulting services especially designed for independent producers and will send you info describing these services. Contact: PeterBelsito@filmfinders.com. Go to http://www.filmfinders.com/
Court Declines To Dismiss Lawsuit Against Publisher Of “Hit Man.”
Generally, publishers are well protected by the First Amendment’s guarantee of free expression. But when Paladin Enterprises, published the book “Hit Man, A Technical Manual for Independent Contractors” it may have gone too far. A hit man allegedly attempted to murder plaintiff Bobby Joe Wilson in accordance with the book’s instructions. While the attempted murder failed, the victim and her son were injured. They sued the publisher for aiding, abetting and conspiring to commit assault and battery. The publisher asked the court to dismiss the lawsuit. Federal Magistrate Thomas Coffin rejected the publisher’s First Amendment defense citing the prior case of Rice v. Paladin Enterprises which concerned another lawsuit against the same publisher arising from another reader’s criminal actions. Wilson v. Paladin Enterprises, 186 F. Supp.2d 1140, 2001 U.S. Dist.LEXIS 23661 (D.Or.2001).
Monday, July 15, 2002
Lansdown Premier
July 15, 2002
You are invited to attend the Los Angeles theatrical premiere of Lansdown, a film directed by my client Tom Zuber.
Starting FRIDAY JULY 19th the award-winning film will play every day in LA at the LAEMMLE MUSIC HALL located at 9036 Wilshire Blvd. (@ Doheny Dr.), Beverly Hills, CA (310-274-6869). Show times for the first week are:
Friday(7/19): 5:00, 7:10,Saturday(7/20)-Sunday(7/21): 12:20, 2:40, 5:00, 7:10, 9:20Monday(7/22)-Thursday(7/25): 5:00, 7:10, 9:20
Filmmakers and cast will be available for Question & Answer after the 7:10 and 9:20 showings on Friday July 19th, Saturday July 20th, and Sunday July 21st. A ticket stub from any Lansdown showing will earn free admission to after-parties taking place on Friday July 19th at The Continental Supper Club (8400 Wilshire @ Gale), and Saturday July 20th at The Firm (6311 Wilshire @ Crescent Heights). After parties will start at 9pm and run all night.
For story synopsis, critical acclaim and other info click on www.lansdown.net/onesheet-la.
The film has also been theatrically released in New York and New Jersey. Zuber was recently signed by Overbrook Entertainment (Will Smith's management company), and just received an offer to finance and produce a thriller he co-wrote entitled The Fall, which he is attached to direct.
You are invited to attend the Los Angeles theatrical premiere of Lansdown, a film directed by my client Tom Zuber.
Starting FRIDAY JULY 19th the award-winning film will play every day in LA at the LAEMMLE MUSIC HALL located at 9036 Wilshire Blvd. (@ Doheny Dr.), Beverly Hills, CA (310-274-6869). Show times for the first week are:
Friday(7/19): 5:00, 7:10,Saturday(7/20)-Sunday(7/21): 12:20, 2:40, 5:00, 7:10, 9:20Monday(7/22)-Thursday(7/25): 5:00, 7:10, 9:20
Filmmakers and cast will be available for Question & Answer after the 7:10 and 9:20 showings on Friday July 19th, Saturday July 20th, and Sunday July 21st. A ticket stub from any Lansdown showing will earn free admission to after-parties taking place on Friday July 19th at The Continental Supper Club (8400 Wilshire @ Gale), and Saturday July 20th at The Firm (6311 Wilshire @ Crescent Heights). After parties will start at 9pm and run all night.
For story synopsis, critical acclaim and other info click on www.lansdown.net/onesheet-la.
The film has also been theatrically released in New York and New Jersey. Zuber was recently signed by Overbrook Entertainment (Will Smith's management company), and just received an offer to finance and produce a thriller he co-wrote entitled The Fall, which he is attached to direct.
Friday, June 14, 2002
WGA UNVEILS NEW LOW BUDGET AGREEMENT
June 14, 2002
WGA UNVEILS NEW LOW BUDGET AGREEMENT
The Writers Guild has announced a new agreement for indie films with budgets of $750,000 or less. In order for the agreement to apply, all writers on the project must request its use in writing. Moreover, in exchange for the deferral, the writer of an original screenplay must perform all writing services. No other writer can be employed without the approval of the writer of the original script.
The new low budget agreement permits the deferral of all or part of the purchase price for an existing script, and the deferral of all or part of the compensation for a first rewrite. However, upon commencement of principal photography, if the budget is more than $500,000, the Producer must pay the writer at least $10,000.
Full payment of the deferment is due upon receipt of monies from any source after recoupment of the total production cost, or commencement of commercial distribution, whichever occurs earlier.
All other provisions of the MBA continue to apply, including obligations in regard to residuals, credits, pension and health payments and separated rights.
VIDEO RETAILERS CHALLENGE REVENUE SHARING
Revenue Sharing is a practice that allows video retailers to obtain cassettes of films for a reduced cost if the retailer agrees to share rental revenues with the distributor. This permits the retailer to stock numerous copies of new films for a nominal cost. The traditional agreement between studios and retailers required the retailer to buy tapes at the full wholesale price which could be substantial ($20-$50). Because of the first sale doctrine under Copyright Law, retailers could repeatedly rent out the tapes to the public, and retain all the revenue for themselves.
Blockbuster had entered into revenue sharing agreements with a number of major studios. Independent retailers objected on the grounds that this arrangement allowed Blockbuster an unfair competitive advantage. Revenue sharing was not invented by Blockbuster, and independent retailers could obtain tapes on a revenue sharing basis from such companies as Rentrak. The independents charge, however, that the favorable terms granted by major studios to blockbuster were not available to them. Blockbuster’s share of the market rose from 27% to 40% during this period, although other factors may well have been responsible for this growth. Blockbuster is owned by Viacom.
This week the retailers’ case came to trial in U.S. District Court in San Antonio, Texas. Viacom Chairman Sumner Redstone testified that he didn’t ask for any exclusive deal with the major studio suppliers.
If successful, the suit could have a significant impact on how tapes are distributed to the home video market. Of course, Blockbuster recently announced that it was not going to renew some of its revenue-sharing deals. And with the tremendous growth of DVD’s (which are not distributed on a revenue-sharing basis) revenue sharing may come to an end anyway.
WGA UNVEILS NEW LOW BUDGET AGREEMENT
The Writers Guild has announced a new agreement for indie films with budgets of $750,000 or less. In order for the agreement to apply, all writers on the project must request its use in writing. Moreover, in exchange for the deferral, the writer of an original screenplay must perform all writing services. No other writer can be employed without the approval of the writer of the original script.
The new low budget agreement permits the deferral of all or part of the purchase price for an existing script, and the deferral of all or part of the compensation for a first rewrite. However, upon commencement of principal photography, if the budget is more than $500,000, the Producer must pay the writer at least $10,000.
Full payment of the deferment is due upon receipt of monies from any source after recoupment of the total production cost, or commencement of commercial distribution, whichever occurs earlier.
All other provisions of the MBA continue to apply, including obligations in regard to residuals, credits, pension and health payments and separated rights.
VIDEO RETAILERS CHALLENGE REVENUE SHARING
Revenue Sharing is a practice that allows video retailers to obtain cassettes of films for a reduced cost if the retailer agrees to share rental revenues with the distributor. This permits the retailer to stock numerous copies of new films for a nominal cost. The traditional agreement between studios and retailers required the retailer to buy tapes at the full wholesale price which could be substantial ($20-$50). Because of the first sale doctrine under Copyright Law, retailers could repeatedly rent out the tapes to the public, and retain all the revenue for themselves.
Blockbuster had entered into revenue sharing agreements with a number of major studios. Independent retailers objected on the grounds that this arrangement allowed Blockbuster an unfair competitive advantage. Revenue sharing was not invented by Blockbuster, and independent retailers could obtain tapes on a revenue sharing basis from such companies as Rentrak. The independents charge, however, that the favorable terms granted by major studios to blockbuster were not available to them. Blockbuster’s share of the market rose from 27% to 40% during this period, although other factors may well have been responsible for this growth. Blockbuster is owned by Viacom.
This week the retailers’ case came to trial in U.S. District Court in San Antonio, Texas. Viacom Chairman Sumner Redstone testified that he didn’t ask for any exclusive deal with the major studio suppliers.
If successful, the suit could have a significant impact on how tapes are distributed to the home video market. Of course, Blockbuster recently announced that it was not going to renew some of its revenue-sharing deals. And with the tremendous growth of DVD’s (which are not distributed on a revenue-sharing basis) revenue sharing may come to an end anyway.
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