October 29, 2004
In this newsletter:
“BUSH’S BRAIN” TO AIR ON SUNDANCE CHANNEL
Congratulations to our clients, Joseph Mealey and Michael Shoob. Their documentary, “Bush’s Brain” is set to air on Nov. 1 on the Sundance Channel.
For airtimes, check the Sundance Channel schedule: www.sundancechannel.com/schedule/?schedDate=11/01/2004+06:00:00
For further information about the documentary, visit www.bushsbrain.com/
“DEADBEAT CLUB” WINS DEEP ELLUM FILM FESTIVAL
“The Deadbeat Club,” by client Israel Luna, was given the 2004 Deep Ellum Film Festival Audience Award for Best Feature Film at the festival’s awards ceremony on Thursday, Oct. 21.
“The Deadbeat Club,” based on a true story written and directed by Israel Luna, was shot in HD on location in West Texas. Luna’s film, which the Dallas Voice heralds as “a sharp film that bursts with color…” is an inspiring and amusing story about a 15-year-old high school misfit who overcomes a tragic loss by uniting an unlikely group of friends.
Congratulations Israel.
PRODUCTION TAX INCENTIVE BECOMES LAW
Congress has passed, and President Bush has signed, legislation that gives a tax break to movies made in the U.S. This is the first federal tax incentive law to stop runaway productions.
Under the new law, independent producers may write off a movie in a single year if it has a budget of $1 million-$15 million and 75% of that budget is spent in the United States. The limit goes up to $20 million if the movie is made in a low-income area of the U.S.
Under this legislation, the cost of producing qualifying films can be fully deducted from income for tax purposes in the year the expenditures occur. This contrasts with prior law which provides that the cost of producing a movie is recovered over several years.
This tax break is a tiny piece of a $136 billion corporate tax bill.
Additional information is posted on the DGA web site: www.dga.org/thedga/leg_rp_updte-102204.php3?§ion=thedga&oldsection=&oldpage=
MARK’S UPCOMING SPEAKING ENGAGEMENTS
Oct. 30, Los Angeles, CA CALIFORNIA LAWYERS FOR THE ARTS Film Business Seminar at Southwestern University School of Law. Call 310-998-5590 or email UserCLA@aol.com.
Nov. 5, New York, NY SWISSAMERICAN FILM FESTIVAL Email info@swisscinema.org for more information.
Nov. 6, New York, NY VOLUNTEER LAWYERS FOR THE ARTS NEW YORK. Mark will conduct his “Self-defense for Writers and Directors” seminar for New York Volunteer Lawyers for the Arts. He will explain how writers and directors 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. Call 212-319-ARTS, ext. 10 to register or request more information.
Nov. 27–28, CALGARY, CANADA Southern Alberta Institute of Technology Mark will present his two-day workshop, “Self Defense for Writers and Filmmakers.” During the discussion Mark will cover topics including
· character portrayal – defamation, privacy and unfair competition
· copyright – limits, duration and protection · contracts – negotiation, conclusion and remedies
· financing and presale agreement
· film distribution
For more information and to reserve your seat, contact Sheila Connell by phone: 403- 230-4617 ext. 242; by fax: 403-277-8930; or email: sheila@macphailharding.com
Preferential hotel accommodation rates are available for out of town delegates.
Friday, October 29, 2004
Thursday, September 30, 2004
iHOLLYWOOD FORUM PRESENTS “THE DIGITAL STUDIO” AT AFM
September 30, 2004
In this newsletter:
iHOLLYWOOD FORUM PRESENTS “THE DIGITAL STUDIO” AT AFM
On Nov. 2, iHollywood Forum will hold its annual industry summit and showcase about digital technology’s transformation of film and television production. Attendees will learn about digital rights management and legal implications of digitization and distribution of media and entertainment.
The forum also offers an opportunity to network with potential clients, including top Hollywood dealmakers, producers, directors, editors, production companies, writers, content creators, investors and studio executives. In addition, attendees can earn MCLE credit. Mark will moderate the panel, “Distribution and Financing for Digital Films: Challenges and Opportunities.”
This year’s iHollywood Forum is conducted in partnership with the American Film Market. The conference will be held at Laemmle Theatre, 1332 2nd Street, Santa Monica, CA from 9 a.m. – 6 p.m.
Tickets are $125 for a Basic ticket; $195 for a Deluxe ticket, which includes networking lunch and cocktail party). Register using Discount Code “DS25” to save $25.
MARK’S UPCOMING SPEAKING ENGAGEMENTS Oct. 2-3, UCLA
Mark will be teaching a UCLA Extension course on Financing Independent Features and Negotiating a Distribution Agreement, Oct. 2-3. During the seminar, participants will examine how independent films are financed and distributed. Seminar topics include financing via pre-sales, debt, and limited partnerships; negotiating tactics; typical contract terms; cross-collateralization; 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 the lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q6736U.
Oct. 30, Los Angeles, CA CALIFORNIA LAWYERS FOR THE ARTS Film Business Seminar at Southwestern University School of Law. Call 310-998-5590 or email UserCLA@aol.com.
Nov. 27–28, CALGARY, CANADA Southern Alberta Institute of Technology Mark will present his two-day workshop, “Self Defense for Writers and Filmmakers.” During the discussion Mark will cover topics including
· character portrayal – defamation, privacy and unfair competition
· copyright – limits, duration and protection
· contracts – negotiation, conclusion and remedies
· financing and presale agreement
· film distribution
For more information and to reserve your seat, contact Sheila Connell by phone: 403- 230-4617 ext. 242; by fax: 403-277-8930; or email: sheila@macphailharding.com. Preferential hotel accommodation rates are available for out of town delegates.
HOLLYWOOD FILM CONFERENCE
This year Mark will be chairing the Hollywood Film Conference, part of the Hollywood Film Festival, which will be held from Friday, October 15 to Sunday, October 17 at the Arclight Cinemas 6360 Sunset Blvd., in Hollywood. The conference will feature top industry speakers who will discuss financing and distribution of films.
In the past seven years over 600 industry professionals have participated as panelists in the conference, including executives from Columbia/TriStar, Fox Searchlight, MGM Studios, Miramax, NBC, New Line, Paramount Classics, Samuel Goldwyn Co., Seventh Art Releasing, Strand Releasing, Twentieth Century Fox, Showtime Networks, Walt Disney, and agents from CAA, ICM, William Morris and Writers & Artists among others. Additional info can be found at: www.hollywoodawards.com/conferences_film.html
In this newsletter:
iHOLLYWOOD FORUM PRESENTS “THE DIGITAL STUDIO” AT AFM
On Nov. 2, iHollywood Forum will hold its annual industry summit and showcase about digital technology’s transformation of film and television production. Attendees will learn about digital rights management and legal implications of digitization and distribution of media and entertainment.
The forum also offers an opportunity to network with potential clients, including top Hollywood dealmakers, producers, directors, editors, production companies, writers, content creators, investors and studio executives. In addition, attendees can earn MCLE credit. Mark will moderate the panel, “Distribution and Financing for Digital Films: Challenges and Opportunities.”
This year’s iHollywood Forum is conducted in partnership with the American Film Market. The conference will be held at Laemmle Theatre, 1332 2nd Street, Santa Monica, CA from 9 a.m. – 6 p.m.
Tickets are $125 for a Basic ticket; $195 for a Deluxe ticket, which includes networking lunch and cocktail party). Register using Discount Code “DS25” to save $25.
MARK’S UPCOMING SPEAKING ENGAGEMENTS Oct. 2-3, UCLA
Mark will be teaching a UCLA Extension course on Financing Independent Features and Negotiating a Distribution Agreement, Oct. 2-3. During the seminar, participants will examine how independent films are financed and distributed. Seminar topics include financing via pre-sales, debt, and limited partnerships; negotiating tactics; typical contract terms; cross-collateralization; 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 the lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q6736U.
Oct. 30, Los Angeles, CA CALIFORNIA LAWYERS FOR THE ARTS Film Business Seminar at Southwestern University School of Law. Call 310-998-5590 or email UserCLA@aol.com.
Nov. 27–28, CALGARY, CANADA Southern Alberta Institute of Technology Mark will present his two-day workshop, “Self Defense for Writers and Filmmakers.” During the discussion Mark will cover topics including
· character portrayal – defamation, privacy and unfair competition
· copyright – limits, duration and protection
· contracts – negotiation, conclusion and remedies
· financing and presale agreement
· film distribution
For more information and to reserve your seat, contact Sheila Connell by phone: 403- 230-4617 ext. 242; by fax: 403-277-8930; or email: sheila@macphailharding.com. Preferential hotel accommodation rates are available for out of town delegates.
HOLLYWOOD FILM CONFERENCE
This year Mark will be chairing the Hollywood Film Conference, part of the Hollywood Film Festival, which will be held from Friday, October 15 to Sunday, October 17 at the Arclight Cinemas 6360 Sunset Blvd., in Hollywood. The conference will feature top industry speakers who will discuss financing and distribution of films.
In the past seven years over 600 industry professionals have participated as panelists in the conference, including executives from Columbia/TriStar, Fox Searchlight, MGM Studios, Miramax, NBC, New Line, Paramount Classics, Samuel Goldwyn Co., Seventh Art Releasing, Strand Releasing, Twentieth Century Fox, Showtime Networks, Walt Disney, and agents from CAA, ICM, William Morris and Writers & Artists among others. Additional info can be found at: www.hollywoodawards.com/conferences_film.html
Thursday, September 16, 2004
SUICIDE BLONDE WINS JUDGEMENT AGAINST RGH/LIONS SHARE PICTURES
September 16, 2004
In this newsletter:
SUICIDE BLONDE WINS JUDGEMENT AGAINST RGH/LIONS SHARE PICTURES
On September 10, 2004, we were successful in having Judge James A Bascue of the Los Angeles Superior Court confirm an Arbitration Award we had previously won against RGH/Lions Share Pictures.
Our client, Suicide Blonde Productions, Inc., initiated arbitration against RGH/Lions Share Pictures for failure to live up to its distribution agreement obligations for the motion picture, “Suicide Blonde.”
In confirming the award, the Court granted Suicide Blonde $254,297.26 in damages, an amount that included $185,750 in lost revenue. Furthermore, the Court permanently enjoined RGH/Lions Share from advertising, selling, distributing, manufacturing, or shipping the picture, ordered RGH/Lions share to return all materials related to the picture, and required RGH/Lions Share to pay all reasonable attorneys fees and costs in securing the confirmation of the Arbitration Award.
MARK’S UPCOMING SPEAKING ENGAGEMENTS Oct. 2-3, UCLA
Mark will be teaching a UCLA Extension course on Financing Independent Features and Negotiating a Distribution Agreement, Oct. 2-3. During the seminar, participants will examine how independent films are financed and distributed. Seminar topics include financing via pre-sales, debt, and limited partnerships; negotiating tactics; typical contract terms; cross-collateralization; 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 the lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q6736U.
Oct. 30, Los Angeles, CA California Lawyers for the Arts Film Business Seminar at Southwestern University School of Law. Call 310-998-5590 or email UserCLA@aol.com.
HOLLYWOOD FILM CONFERENCE SPECIAL OFFER
This year Mark will be chairing the Hollywood Film Conference, part of the Hollywood Film Festival, which will be held from Friday, October 15 to Sunday, October 17 at the Arclight Cinemas 6360 Sunset Blvd., in Hollywood. The conference will feature top industry speakers who will discuss financing and distribution of films.
In the past seven years over 600 industry professionals have participated as panelists in the conference, including executives from Columbia/TriStar, Fox Searchlight, MGM Studios, Miramax, NBC, New Line, Paramount Classics, Samuel Goldwyn Co., Seventh Art Releasing, Strand Releasing, Twentieth Century Fox, Showtime Networks, Walt Disney, and agents from CAA, ICM, William Morris and Writers & Artists among others. We have a special Offer for subscribers of this newsletter: more than 50% off the regular price of $495.00. Just mention that you heard about the conference from this newsletter and you can purchase admittance to the 3-day conference for only $195.00. Additional info at: www.hollywoodawards.com/conferences_film.html
FINANCING INDEPENDENT FILMS by Mark Litwak
Independent films can be financed in a variety of ways. In addition to a filmmaker using his own funds to make a movie, the most common methods are: 1) loans 2) investor financing 3) borrowing against pre-sales (a loan against distribution contracts) 4) distributor-supplied financing.
LOANS
Loans can be secured or unsecured. A secured loan is supported or backed by security or collateral. When one takes out a car or home loan, the loan is secured by that property. If the person who borrows money fails to repay the loan, the creditor may take legal action to have the collateral sold and the proceeds applied to pay off the debt. An unsecured loan has no particular property backing it. Credit card debt and loans from family or friends may be unsecured. If a debtor defaults on an unsecured loan, the creditor can sue for repayment and force the sale of the debtor’s assets to repay the loan. If the debtor has many debts, however, the sale of his property may not be sufficient to satisfy all creditors. In such a case, creditors may end up receiving only a small portion of the money owed them.
A secured creditor is in a stronger position to receive repayment. In the event of a default, designated property (the secured property) will be sold and all the proceeds will be applied first to repay the secured creditor’s debt. Unsecured creditors will share in whatever is left, if anything.
The advantage of a loan, from a legal point of view, is that the transaction can often be structured in a fairly simple and inexpensive manner. A short promissory note can be used and the transaction often is not subject to the complex security laws that govern many investments. Thus, there is usually no need to prepare a private placement memorandum (PPM). Keep in mind that if the agreement between the parties is labeled a “loan,” but in reality it is an investment, the courts will likely view the transaction as an investment. Giving a creditor a “piece of the back-end,” or otherwise giving the creditor equity in the project, makes the transaction look like an investment. Read the full article at: www.marklitwak.com/articles/general/financing.html
In this newsletter:
SUICIDE BLONDE WINS JUDGEMENT AGAINST RGH/LIONS SHARE PICTURES
On September 10, 2004, we were successful in having Judge James A Bascue of the Los Angeles Superior Court confirm an Arbitration Award we had previously won against RGH/Lions Share Pictures.
Our client, Suicide Blonde Productions, Inc., initiated arbitration against RGH/Lions Share Pictures for failure to live up to its distribution agreement obligations for the motion picture, “Suicide Blonde.”
In confirming the award, the Court granted Suicide Blonde $254,297.26 in damages, an amount that included $185,750 in lost revenue. Furthermore, the Court permanently enjoined RGH/Lions Share from advertising, selling, distributing, manufacturing, or shipping the picture, ordered RGH/Lions share to return all materials related to the picture, and required RGH/Lions Share to pay all reasonable attorneys fees and costs in securing the confirmation of the Arbitration Award.
MARK’S UPCOMING SPEAKING ENGAGEMENTS Oct. 2-3, UCLA
Mark will be teaching a UCLA Extension course on Financing Independent Features and Negotiating a Distribution Agreement, Oct. 2-3. During the seminar, participants will examine how independent films are financed and distributed. Seminar topics include financing via pre-sales, debt, and limited partnerships; negotiating tactics; typical contract terms; cross-collateralization; 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 the lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q6736U.
Oct. 30, Los Angeles, CA California Lawyers for the Arts Film Business Seminar at Southwestern University School of Law. Call 310-998-5590 or email UserCLA@aol.com.
HOLLYWOOD FILM CONFERENCE SPECIAL OFFER
This year Mark will be chairing the Hollywood Film Conference, part of the Hollywood Film Festival, which will be held from Friday, October 15 to Sunday, October 17 at the Arclight Cinemas 6360 Sunset Blvd., in Hollywood. The conference will feature top industry speakers who will discuss financing and distribution of films.
In the past seven years over 600 industry professionals have participated as panelists in the conference, including executives from Columbia/TriStar, Fox Searchlight, MGM Studios, Miramax, NBC, New Line, Paramount Classics, Samuel Goldwyn Co., Seventh Art Releasing, Strand Releasing, Twentieth Century Fox, Showtime Networks, Walt Disney, and agents from CAA, ICM, William Morris and Writers & Artists among others. We have a special Offer for subscribers of this newsletter: more than 50% off the regular price of $495.00. Just mention that you heard about the conference from this newsletter and you can purchase admittance to the 3-day conference for only $195.00. Additional info at: www.hollywoodawards.com/conferences_film.html
FINANCING INDEPENDENT FILMS by Mark Litwak
Independent films can be financed in a variety of ways. In addition to a filmmaker using his own funds to make a movie, the most common methods are: 1) loans 2) investor financing 3) borrowing against pre-sales (a loan against distribution contracts) 4) distributor-supplied financing.
LOANS
Loans can be secured or unsecured. A secured loan is supported or backed by security or collateral. When one takes out a car or home loan, the loan is secured by that property. If the person who borrows money fails to repay the loan, the creditor may take legal action to have the collateral sold and the proceeds applied to pay off the debt. An unsecured loan has no particular property backing it. Credit card debt and loans from family or friends may be unsecured. If a debtor defaults on an unsecured loan, the creditor can sue for repayment and force the sale of the debtor’s assets to repay the loan. If the debtor has many debts, however, the sale of his property may not be sufficient to satisfy all creditors. In such a case, creditors may end up receiving only a small portion of the money owed them.
A secured creditor is in a stronger position to receive repayment. In the event of a default, designated property (the secured property) will be sold and all the proceeds will be applied first to repay the secured creditor’s debt. Unsecured creditors will share in whatever is left, if anything.
The advantage of a loan, from a legal point of view, is that the transaction can often be structured in a fairly simple and inexpensive manner. A short promissory note can be used and the transaction often is not subject to the complex security laws that govern many investments. Thus, there is usually no need to prepare a private placement memorandum (PPM). Keep in mind that if the agreement between the parties is labeled a “loan,” but in reality it is an investment, the courts will likely view the transaction as an investment. Giving a creditor a “piece of the back-end,” or otherwise giving the creditor equity in the project, makes the transaction look like an investment. Read the full article at: www.marklitwak.com/articles/general/financing.html
Friday, September 03, 2004
MARK TO TEACH AT UCLA OCT. 2-3
September 3, 2004
In this newsletter:
MARK TO TEACH AT UCLA OCT. 2-3
Mark will be teaching a UCLA Extension course on Financing Independent Features and Negotiating a Distribution Agreement, Oct. 2-3. During the seminar, students will examine how independent films are financed and distributed. Seminar 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 the lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q6736U.
CONGRATULATIONS TO OUR CLIENTS
This Friday marks the Los Angeles theatrical opening of “Bush’s Brain,” an explosive new documentary film that introduces the country to Karl Rove, the man known as “Bush’s Brain,” the most powerful political figure America has never heard of.
The film chronicles the history of the Karl Rove-George Bush relationship and reveals Rove to be the Wizard of Oz behind the curtain, the man who is pulling the strings in the current White House.
“Bush’s Brain” is a primer on Rove’s political shenanigans for the past two decades. After seeing it, you’ll have a far deeper understanding of how the White House operates and how they will approach the campaign in the coming months, leading up to the November 2 election.
The film opens this Friday, September 3, at the Laemmle Sunset 5 in West Hollywood, the Laemmle Town Center in Encino and the Laemmle One Colorado in Pasadena. Visit the official Web site at: www.bushsbrain.net
HOLLYWOOD FILM CONFERENCE SPECIAL OFFER
This year Mark will be chairing the Hollywood Film Conference, part of the Hollywood Film Festival, which will be held from Friday, October 15 to Sunday October 17th at the Arclight Cinemas 6360 Sunset Blvd., in Hollywood. The conference will feature top industry speakers who will discuss financing and distribution of films.
In the past seven years over 600 industry professionals have participated as panelists in the conference, including executives from Columbia/TriStar, Fox Searchlight, MGM Studios, Miramax, NBC, New Line, Paramount Classics, Samuel Goldwyn Co., Seventh Art Releasing, Strand Releasing, Twentieth Century Fox, Showtime Networks, Walt Disney, and agents from CAA, ICM, William Morris and Writers & Artists among others.
We have a special Offer for subscribers of this newsletter: more than 50% off the regular price of $495.00. Just mention that you heard about the conference from this newsletter and you can purchase admittance to the 3-day conference for only $195.00. Additional info at: www.hollywoodawards.com/conferences_film.html
In this newsletter:
MARK TO TEACH AT UCLA OCT. 2-3
Mark will be teaching a UCLA Extension course on Financing Independent Features and Negotiating a Distribution Agreement, Oct. 2-3. During the seminar, students will examine how independent films are financed and distributed. Seminar 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 the lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q6736U.
CONGRATULATIONS TO OUR CLIENTS
This Friday marks the Los Angeles theatrical opening of “Bush’s Brain,” an explosive new documentary film that introduces the country to Karl Rove, the man known as “Bush’s Brain,” the most powerful political figure America has never heard of.
The film chronicles the history of the Karl Rove-George Bush relationship and reveals Rove to be the Wizard of Oz behind the curtain, the man who is pulling the strings in the current White House.
“Bush’s Brain” is a primer on Rove’s political shenanigans for the past two decades. After seeing it, you’ll have a far deeper understanding of how the White House operates and how they will approach the campaign in the coming months, leading up to the November 2 election.
The film opens this Friday, September 3, at the Laemmle Sunset 5 in West Hollywood, the Laemmle Town Center in Encino and the Laemmle One Colorado in Pasadena. Visit the official Web site at: www.bushsbrain.net
HOLLYWOOD FILM CONFERENCE SPECIAL OFFER
This year Mark will be chairing the Hollywood Film Conference, part of the Hollywood Film Festival, which will be held from Friday, October 15 to Sunday October 17th at the Arclight Cinemas 6360 Sunset Blvd., in Hollywood. The conference will feature top industry speakers who will discuss financing and distribution of films.
In the past seven years over 600 industry professionals have participated as panelists in the conference, including executives from Columbia/TriStar, Fox Searchlight, MGM Studios, Miramax, NBC, New Line, Paramount Classics, Samuel Goldwyn Co., Seventh Art Releasing, Strand Releasing, Twentieth Century Fox, Showtime Networks, Walt Disney, and agents from CAA, ICM, William Morris and Writers & Artists among others.
We have a special Offer for subscribers of this newsletter: more than 50% off the regular price of $495.00. Just mention that you heard about the conference from this newsletter and you can purchase admittance to the 3-day conference for only $195.00. Additional info at: www.hollywoodawards.com/conferences_film.html
Tuesday, August 24, 2004
BUSH’S BRAIN PREMIERES
August 24, 2004
In this newsletter:
HOLLYWOOD FILM CONFERENCE SPECIAL OFFER
This year I will be chairing the Hollywood Film Conference, part of the Hollywood Film Festival, which will be held from Friday, October 15 to Sunday October 17th at the Arclight Cinemas 6360 Sunset Blvd., in Hollywood. The conference will feature top industry speakers who will discuss financing and distribution of films.
In the past seven years over 600 industry professionals have participated as panelists in the conference, including executives from Columbia/TriStar, Fox Searchlight, MGM Studios, Miramax, NBC, New Line, Paramount Classics, Samuel Goldwyn Co., Seventh Art Releasing, Strand Releasing, Twentieth Century Fox, Showtime Networks, Walt Disney, and agents from CAA, ICM, William Morris and Writers & Artists among others.
We have a special Offer for subscribers of this newsletter: more than 50% off the regular price of $495.00. Just mention that you heard about the conference from this newsletter and you can purchase admittance to the 3-day conference for only $195.00.
Additional info at: www.hollywoodawards.com/conferences_film.html
BUSH’S BRAIN PREMIERES
Congratulations to our clients’ filmmakers Joseph Mealey and Michael Paradies Shoob whose film, Bush’s Brain, premiered at a special screening in Los Angeles at the American Cinematheque on August 12. The film is about Karl Rove, the brains behind the success of George Bush, who has engaged in questionable tactics in the pursuit of electoral victory.
The documentary opens in theatres across the nation in late August and early September. In Los Angeles it will open in four theaters including the Laemmle Sunset 5 on September 3. It opens in New York on August 27, three days before the start of the Republican convention. This is likely to be a controversial film, a behind-the-scenes look at the political guru that has guided George Bush in his career.
In this newsletter:
HOLLYWOOD FILM CONFERENCE SPECIAL OFFER
This year I will be chairing the Hollywood Film Conference, part of the Hollywood Film Festival, which will be held from Friday, October 15 to Sunday October 17th at the Arclight Cinemas 6360 Sunset Blvd., in Hollywood. The conference will feature top industry speakers who will discuss financing and distribution of films.
In the past seven years over 600 industry professionals have participated as panelists in the conference, including executives from Columbia/TriStar, Fox Searchlight, MGM Studios, Miramax, NBC, New Line, Paramount Classics, Samuel Goldwyn Co., Seventh Art Releasing, Strand Releasing, Twentieth Century Fox, Showtime Networks, Walt Disney, and agents from CAA, ICM, William Morris and Writers & Artists among others.
We have a special Offer for subscribers of this newsletter: more than 50% off the regular price of $495.00. Just mention that you heard about the conference from this newsletter and you can purchase admittance to the 3-day conference for only $195.00.
Additional info at: www.hollywoodawards.com/conferences_film.html
BUSH’S BRAIN PREMIERES
Congratulations to our clients’ filmmakers Joseph Mealey and Michael Paradies Shoob whose film, Bush’s Brain, premiered at a special screening in Los Angeles at the American Cinematheque on August 12. The film is about Karl Rove, the brains behind the success of George Bush, who has engaged in questionable tactics in the pursuit of electoral victory.
The documentary opens in theatres across the nation in late August and early September. In Los Angeles it will open in four theaters including the Laemmle Sunset 5 on September 3. It opens in New York on August 27, three days before the start of the Republican convention. This is likely to be a controversial film, a behind-the-scenes look at the political guru that has guided George Bush in his career.
Thursday, July 08, 2004
PROTECTING YOUR STORIES: Borrowed Elements or Stolen Ideas?
July 8, 2004
In this newsletter:
MARK DISCUSSES DISTRIBUTION DEALS AT VSDA, JULY 15
Mark will be speaking on a panel at the Venetian Hotel in Las Vegas at 1:30PM, July 15. The panel, entitled “Distribution Details,” is part of “Had to Be Made Filmmaker Program” at the annual VSDA conference. Mark will discuss what filmmakers need to know to prepare themselves for distribution. He will cover details of a distribution deal and the items needed to make the deal go smoothly, including E&O insurance, chain of title, releases and copyrights, film materials and components, selecting a distributor, and understanding distribution revenue. To attend, register online or call toll FREE: 800-545-1773. VSDA registration info is available at show.vsdahomeentertainment.com/videoshow/V40/index.cvn?id=10019 .
PROTECTING YOUR STORIES: Borrowed Elements or Stolen Ideas?
by Mark Litwak
When writers submit their work, they become vulnerable to theft. As an entertainment attorney, I often hear from writers who believe that they have been ripped off. Usually the writer is a novice without representation who submits a script to an established production company. The company passes on the script or does not acknowledge its receipt. Months or years go by and one day the writer stumbles upon a movie that closely resembles his story, and the credits show a recipient of the writer’s script made it. The writer is convinced that his work was stolen and his copyright infringed. This may or may not be the case.
Many writers do not have a solid understanding of the nature and extent of what copyright law protects, and they may not know that they can also protect their interests under the principles of contract law. Let’s begin with a discussion of copyright law.
Copyright does not protect story ideas, concepts, or themes. So ten authors can write different stories about a doomed romance between lovers from dissimilar backgrounds, resulting in Romeo and Juliet, West Side Story, and other variations. Also, facts and historical incidents are not copyrightable, so numerous authors could each write a biography on George Washington based on the same facts and incidents.
What copyright law does protect is the “expression of the author,” the particular manner in which the writer tells the story, his approach to the material, his voice. In other words, what is protected is the embellishment on the idea, not the idea itself.
Consequently, others are free to borrow uncopyrightable elements from your work. But if they borrow your expression, then they have crossed the line. Granted it may be difficult to tell that an idea has been sufficiently embellished upon rendering the resulting work an expression of an author and protected, but generally the more detailed the story, the greater the protection you will receive.
So how can a writer protect his ideas? By contract. While ideas are not protected by copyright, they are a form of intellectual property, and the recipient of an idea can agree to pay the provider for it. Such an agreement can be an enforceable contract.
In order to understand how a writer’s idea can be protected by contract, let us first review some legal principles. There are different kinds of contracts. Some are written, others are oral. Contrary to popular belief, oral contracts may be valid. However, it is usually advantageous to have a written agreement, if only because it is evidence as to what the parties agreed.
The best way for a writer to protect himself would be to have the recipient of a story idea sign a written agreement. However, it may be awkward for a writer to begin a meeting with such a request. Some producers might be offended or worry about liability. They might want to consult their lawyer. Since writers often experience difficulty just getting in the door to see a powerful producer, asking for a written agreement may not be practicable.
A less-threatening approach would be to enter into an oral agreement with the producer. The writer begins the meeting by simply saying: “Before I tell you my idea, I want to make sure you understand that I am telling you this idea with the understanding that if you decide to use it, I expect to receive reasonable compensation.” The producer most likely will nod her head yes or say, “Of course,” in which case you have a deal. If the producer indicates that she does not agree to these terms, leave without presenting the story.
Since a contract made under these circumstances isn’t in writing, there might be a problem proving its existence and terms. That is why it’s advisable to have a witness or some documentation. You could bring a co-writer, agent, or associate along to the meeting. After the meeting you might send a letter to the producer reiterating your understanding. The letter should be cordial and non-threatening. You could write: “It was really a pleasure meeting with you to discuss my story about singing cat. As we agreed, if you decide to exploit this material, I will receive reasonable compensation.” If the terms set forth in your letter are not disavowed by the recipient, the letter could be considered your agreement. Since the letter has not been signed by the producer, her agreement is implied from the fact that she didn’t object. Of course, if the producer confirms these terms in writing, that would give you even better evidence.
But what if the producer listening to your pitch doesn’t steal your story but repeats it to another producer who uses it? You can protect yourself by also stating: “I am telling you my idea with the understanding that you will keep it confidential and will not tell it to anyone else without my permission.” If the producer nods her head okay or says yes, you have a deal, and you can sue if she breaches her promise.
In this newsletter:
MARK DISCUSSES DISTRIBUTION DEALS AT VSDA, JULY 15
Mark will be speaking on a panel at the Venetian Hotel in Las Vegas at 1:30PM, July 15. The panel, entitled “Distribution Details,” is part of “Had to Be Made Filmmaker Program” at the annual VSDA conference. Mark will discuss what filmmakers need to know to prepare themselves for distribution. He will cover details of a distribution deal and the items needed to make the deal go smoothly, including E&O insurance, chain of title, releases and copyrights, film materials and components, selecting a distributor, and understanding distribution revenue. To attend, register online or call toll FREE: 800-545-1773. VSDA registration info is available at show.vsdahomeentertainment.com/videoshow/V40/index.cvn?id=10019 .
PROTECTING YOUR STORIES: Borrowed Elements or Stolen Ideas?
by Mark Litwak
When writers submit their work, they become vulnerable to theft. As an entertainment attorney, I often hear from writers who believe that they have been ripped off. Usually the writer is a novice without representation who submits a script to an established production company. The company passes on the script or does not acknowledge its receipt. Months or years go by and one day the writer stumbles upon a movie that closely resembles his story, and the credits show a recipient of the writer’s script made it. The writer is convinced that his work was stolen and his copyright infringed. This may or may not be the case.
Many writers do not have a solid understanding of the nature and extent of what copyright law protects, and they may not know that they can also protect their interests under the principles of contract law. Let’s begin with a discussion of copyright law.
Copyright does not protect story ideas, concepts, or themes. So ten authors can write different stories about a doomed romance between lovers from dissimilar backgrounds, resulting in Romeo and Juliet, West Side Story, and other variations. Also, facts and historical incidents are not copyrightable, so numerous authors could each write a biography on George Washington based on the same facts and incidents.
What copyright law does protect is the “expression of the author,” the particular manner in which the writer tells the story, his approach to the material, his voice. In other words, what is protected is the embellishment on the idea, not the idea itself.
Consequently, others are free to borrow uncopyrightable elements from your work. But if they borrow your expression, then they have crossed the line. Granted it may be difficult to tell that an idea has been sufficiently embellished upon rendering the resulting work an expression of an author and protected, but generally the more detailed the story, the greater the protection you will receive.
So how can a writer protect his ideas? By contract. While ideas are not protected by copyright, they are a form of intellectual property, and the recipient of an idea can agree to pay the provider for it. Such an agreement can be an enforceable contract.
In order to understand how a writer’s idea can be protected by contract, let us first review some legal principles. There are different kinds of contracts. Some are written, others are oral. Contrary to popular belief, oral contracts may be valid. However, it is usually advantageous to have a written agreement, if only because it is evidence as to what the parties agreed.
The best way for a writer to protect himself would be to have the recipient of a story idea sign a written agreement. However, it may be awkward for a writer to begin a meeting with such a request. Some producers might be offended or worry about liability. They might want to consult their lawyer. Since writers often experience difficulty just getting in the door to see a powerful producer, asking for a written agreement may not be practicable.
A less-threatening approach would be to enter into an oral agreement with the producer. The writer begins the meeting by simply saying: “Before I tell you my idea, I want to make sure you understand that I am telling you this idea with the understanding that if you decide to use it, I expect to receive reasonable compensation.” The producer most likely will nod her head yes or say, “Of course,” in which case you have a deal. If the producer indicates that she does not agree to these terms, leave without presenting the story.
Since a contract made under these circumstances isn’t in writing, there might be a problem proving its existence and terms. That is why it’s advisable to have a witness or some documentation. You could bring a co-writer, agent, or associate along to the meeting. After the meeting you might send a letter to the producer reiterating your understanding. The letter should be cordial and non-threatening. You could write: “It was really a pleasure meeting with you to discuss my story about singing cat. As we agreed, if you decide to exploit this material, I will receive reasonable compensation.” If the terms set forth in your letter are not disavowed by the recipient, the letter could be considered your agreement. Since the letter has not been signed by the producer, her agreement is implied from the fact that she didn’t object. Of course, if the producer confirms these terms in writing, that would give you even better evidence.
But what if the producer listening to your pitch doesn’t steal your story but repeats it to another producer who uses it? You can protect yourself by also stating: “I am telling you my idea with the understanding that you will keep it confidential and will not tell it to anyone else without my permission.” If the producer nods her head okay or says yes, you have a deal, and you can sue if she breaches her promise.
Wednesday, June 16, 2004
Hawaii has some very impressive and generous tax incentives
June 16, 2004
In this newsletter:
HAWAII EXTENDS ACT 221
Hawaii has some very impressive and generous tax incentives. Considering all the public criticism of the Act, it was somewhat of a surprise to see state lawmakers pass a bill to extend the program through 2010. While the legislation has not yet been signed by Governor Linda Lingle, her signature is expected soon. The provision that the law be “liberally” construed was deleted, and the granting of credits was limited in some ways. Investors will no longer be allowed to recoup large multiples of their investments in the form of state tax credits. As of July 1, 2004, “multiples” of 2.0 and above will be required to submit evidence substantiating economic substance and business purpose of the transaction. Deals where an investor receives up to one-and-a-half times the amount of the initial investment in the form of tax credits over the life of the credit would be presumed acceptable. The Department of Taxation will have the right to investigate deals where an investor receives between 1.5 and two times the amount of the initial investment in tax credits. This means a Hawaiian investor that invests $100,000 in a film can be assured to receive a return of $150,000 in tax credits over five years. What will need to shown to earn a higher multiple is not entirely clear until the Department of Tax issue guidelines regarding the manner in which economic substance and business purpose may be substantiated. More info is available at www.nasvf.org/web/allpress.nsf/pages/7171
In this newsletter:
HAWAII EXTENDS ACT 221
Hawaii has some very impressive and generous tax incentives. Considering all the public criticism of the Act, it was somewhat of a surprise to see state lawmakers pass a bill to extend the program through 2010. While the legislation has not yet been signed by Governor Linda Lingle, her signature is expected soon. The provision that the law be “liberally” construed was deleted, and the granting of credits was limited in some ways. Investors will no longer be allowed to recoup large multiples of their investments in the form of state tax credits. As of July 1, 2004, “multiples” of 2.0 and above will be required to submit evidence substantiating economic substance and business purpose of the transaction. Deals where an investor receives up to one-and-a-half times the amount of the initial investment in the form of tax credits over the life of the credit would be presumed acceptable. The Department of Taxation will have the right to investigate deals where an investor receives between 1.5 and two times the amount of the initial investment in tax credits. This means a Hawaiian investor that invests $100,000 in a film can be assured to receive a return of $150,000 in tax credits over five years. What will need to shown to earn a higher multiple is not entirely clear until the Department of Tax issue guidelines regarding the manner in which economic substance and business purpose may be substantiated. More info is available at www.nasvf.org/web/allpress.nsf/pages/7171
Tuesday, June 08, 2004
“TO END ALL WARS” TO BE RELEASED ON DVD
June 8, 2004
In this newsletter:
MARK TO TEACH “SELF-DEFENSE” AT UCLA JUNE 12-13
This weekend, Mark will be at UCLA teaching “Self-Defense for Independent Filmmakers: Protecting Your Legal Rights” In this intensive weekend seminar, filmmakers learn how to anticipate problems before they arise in their negotiations with production and distribution companies and create incentives to encourage the companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an unresolvable dispute, participants learn what remedies are available to enforce their rights. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q3515U.
“TO END ALL WARS” TO BE RELEASED ON DVD
Congratulations to our clients David Cunningham and Jack Hafer. The DVD edition of their film, “To End All Wars,” starring Robert Carlyle, Kiefer Sutherland, and Ciarán McMenamin, hits the streets June 15. It’s distributed by Fox Home Entertainment and is available for pre-order on Amazon.com.
MARK’S NEW COLUMN ON ENTERTAINMENT LAW
Mark has begun writing a monthly column on entertainment legal issues. The first article for the column was “Protecting Your Stories: Borrowed Elements or Stolen Ideas?”; the second was “How Distributors Evaluate Films.” Several filmmaker organizations will be carrying Mark’s column in their publications and newsletters. These groups and publications include the Film Arts Foundation’s “Release Print,” “Focus In,” “Hawaii Film & Video” magazine, Imagine, NALIP, New York Volunteer Lawyers for the Arts, and Washington Lawyers for the Arts.
In this newsletter:
MARK TO TEACH “SELF-DEFENSE” AT UCLA JUNE 12-13
This weekend, Mark will be at UCLA teaching “Self-Defense for Independent Filmmakers: Protecting Your Legal Rights” In this intensive weekend seminar, filmmakers learn how to anticipate problems before they arise in their negotiations with production and distribution companies and create incentives to encourage the companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an unresolvable dispute, participants learn what remedies are available to enforce their rights. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q3515U.
“TO END ALL WARS” TO BE RELEASED ON DVD
Congratulations to our clients David Cunningham and Jack Hafer. The DVD edition of their film, “To End All Wars,” starring Robert Carlyle, Kiefer Sutherland, and Ciarán McMenamin, hits the streets June 15. It’s distributed by Fox Home Entertainment and is available for pre-order on Amazon.com.
MARK’S NEW COLUMN ON ENTERTAINMENT LAW
Mark has begun writing a monthly column on entertainment legal issues. The first article for the column was “Protecting Your Stories: Borrowed Elements or Stolen Ideas?”; the second was “How Distributors Evaluate Films.” Several filmmaker organizations will be carrying Mark’s column in their publications and newsletters. These groups and publications include the Film Arts Foundation’s “Release Print,” “Focus In,” “Hawaii Film & Video” magazine, Imagine, NALIP, New York Volunteer Lawyers for the Arts, and Washington Lawyers for the Arts.
Tuesday, May 18, 2004
FAQs AND NEW ARTICLES NOW AVAILABLE ON MARKLITWAK.COM
May 18, 2004
In this newsletter:
FAQs AND NEW ARTICLES NOW AVAILABLE ON MARKLITWAK.COM
Our website, marklitwak.com has been expanded with a large, new section devoted to frequently asked questions. You’ll find them by clicking on the FAQ link in the menu bar above. Three recent articles written by Mark have also been posted: "Soft Money in Hard Times" (published in Moviemaker), "Runaway Home" (published in Los Angeles Lawyer) and "Protecting Your Stories" (published in Focus In). You’ll find these PDF articles on Mark’s articles page (click on the Articles link in the menu bar).
MARK TO TEACH SELF-DEFENSE IN JUNE & NOVEMBER DALLAS
On June 4, Mark will be at the Southwest Film, Arts & Television Conference in Dallas to give a talk on intellectual rights and negotiating distribution deals. For more information go to www.swaftconvention.com/filmmakers.asp.
LOS ANGELES
On June 12-13, Mark will be at UCLA teaching "Self-Defense for Independent Filmmakers: Protecting Your Legal Rights" In this intensive weekend seminar, filmmakers learn how to anticipate problems before they arise in their negotiations with production and distribution companies and create incentives to encourage the companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an unresolvable dispute, participants learn what remedies are available to enforce their rights. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q3515U.
NEW YORK CITY
On Nov. 6, Mark will conduct a "Self-defense for Writers and Directors" seminar for New York Volunteer Lawyers for the Arts. He will explain how writers and directors 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. For more information or to register, please call Alexei Auld at 212-319-ARTS (2787) ext. 12.
In this newsletter:
FAQs AND NEW ARTICLES NOW AVAILABLE ON MARKLITWAK.COM
Our website, marklitwak.com has been expanded with a large, new section devoted to frequently asked questions. You’ll find them by clicking on the FAQ link in the menu bar above. Three recent articles written by Mark have also been posted: "Soft Money in Hard Times" (published in Moviemaker), "Runaway Home" (published in Los Angeles Lawyer) and "Protecting Your Stories" (published in Focus In). You’ll find these PDF articles on Mark’s articles page (click on the Articles link in the menu bar).
MARK TO TEACH SELF-DEFENSE IN JUNE & NOVEMBER DALLAS
On June 4, Mark will be at the Southwest Film, Arts & Television Conference in Dallas to give a talk on intellectual rights and negotiating distribution deals. For more information go to www.swaftconvention.com/filmmakers.asp.
LOS ANGELES
On June 12-13, Mark will be at UCLA teaching "Self-Defense for Independent Filmmakers: Protecting Your Legal Rights" In this intensive weekend seminar, filmmakers learn how to anticipate problems before they arise in their negotiations with production and distribution companies and create incentives to encourage the companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an unresolvable dispute, participants learn what remedies are available to enforce their rights. To enroll in the course online, go to www.uclaextension.com and enter Course Reg # Q3515U.
NEW YORK CITY
On Nov. 6, Mark will conduct a "Self-defense for Writers and Directors" seminar for New York Volunteer Lawyers for the Arts. He will explain how writers and directors 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. For more information or to register, please call Alexei Auld at 212-319-ARTS (2787) ext. 12.
Thursday, May 06, 2004
WHAM-O GETS SLAMMED, JUDGE DENIES TRO AGAINST PARAMOUNT
May 6, 2004
In this newsletter:
PRODUCTION ARTICLE ON INCENTIVES IN MAY ISSUE OF LOS ANGELES LAWYER
Mark's article on international film production incentives is running in the May 2004 edition of "Los Angeles Lawyer" magazine. A PDF version of the magazine is available online at www.lacba.org/showpage.cfm?pageid=40.
CONGRATULATIONS TO OUR CLIENTS
Kudos to our clients Joseph Mealey and Michael Shoob. Their film, "Bush's Brain" is an official selection of the TriBeCa Film Festival and will be screening at 7:30PM on Thursday, May 6, at the Tribeca Performing Arts Center 1. Tickets are $10 and are available at the door only. For more information about the Tribeca Film Festival, visit www.tribecafilmfestival.org .
Congratulations to our client Eileen Craft. She is co-producing the film "Mrs. Hotchkiss' Ballroom Dancing and Charm School," which began production this week. The film stars Robert Carlyle, Marisa Tomei, John Goodman, Mary Steenburgen, Sean Astin, David Paymer, Donnie Wahlberg, Camryn Manheim, Ernie Hudson, and Danny DeVito.
WHAM-O GETS SLAMMED, JUDGE DENIES TRO AGAINST PARAMOUNT
Last year's comedy release "Dickie Roberts: Former Child Star" memorably featured a "Slip 'N Slide" in its advertisements and the film. The product's manufacturer, Wham-O Inc., didn't find it so funny and consequently sued the film's distributor, Paramount Pictures, for trademark infringement and dilution. In addition, Wham-O requested a temporary restraining order (TRO). Wham-O had not paid for product placement; Paramount had not contacted Wham-O for permission to include the product in its film.
In a succinct decision that will likely be cited in future trademark infringement and dilution cases, Federal District Judge Marilyn Patel denied Wham-O's requests and rejected its claims.
Wham-O alleged that the "Slip 'N Slide" scene showed its product being misused in a painful and dangerous manner, and therefore diluted its trademark. Furthermore, featuring the product in the film blurred the distinctiveness of its marks and created consumer confusion.
In denying Wham-O's claims, Judge Patel determined that it was "obvious and unmistakable" that the slide was being misused, and the characters even go so far as to say that the slide is being misused. The judge further noted that "it is not unusual for movie producers to use … products and props … to cultivate interest in a film. … Nothing … suggests that [Paramount] used [Wham-O's] marks to imply that [Wham-O] placed its imprimatur on the film; nowhere in [Paramount's] publicity efforts is [Wham-O's] mark unreasonably displayed or abused."
Wham-O, Inc. v. Paramount Pictures Corp., 286 F.Supp.2d 1254, 2003 U.S.Dist.LEXIS 21762 (N.D.Cal. 2003)
In this newsletter:
PRODUCTION ARTICLE ON INCENTIVES IN MAY ISSUE OF LOS ANGELES LAWYER
Mark's article on international film production incentives is running in the May 2004 edition of "Los Angeles Lawyer" magazine. A PDF version of the magazine is available online at www.lacba.org/showpage.cfm?pageid=40.
CONGRATULATIONS TO OUR CLIENTS
Kudos to our clients Joseph Mealey and Michael Shoob. Their film, "Bush's Brain" is an official selection of the TriBeCa Film Festival and will be screening at 7:30PM on Thursday, May 6, at the Tribeca Performing Arts Center 1. Tickets are $10 and are available at the door only. For more information about the Tribeca Film Festival, visit www.tribecafilmfestival.org .
Congratulations to our client Eileen Craft. She is co-producing the film "Mrs. Hotchkiss' Ballroom Dancing and Charm School," which began production this week. The film stars Robert Carlyle, Marisa Tomei, John Goodman, Mary Steenburgen, Sean Astin, David Paymer, Donnie Wahlberg, Camryn Manheim, Ernie Hudson, and Danny DeVito.
WHAM-O GETS SLAMMED, JUDGE DENIES TRO AGAINST PARAMOUNT
Last year's comedy release "Dickie Roberts: Former Child Star" memorably featured a "Slip 'N Slide" in its advertisements and the film. The product's manufacturer, Wham-O Inc., didn't find it so funny and consequently sued the film's distributor, Paramount Pictures, for trademark infringement and dilution. In addition, Wham-O requested a temporary restraining order (TRO). Wham-O had not paid for product placement; Paramount had not contacted Wham-O for permission to include the product in its film.
In a succinct decision that will likely be cited in future trademark infringement and dilution cases, Federal District Judge Marilyn Patel denied Wham-O's requests and rejected its claims.
Wham-O alleged that the "Slip 'N Slide" scene showed its product being misused in a painful and dangerous manner, and therefore diluted its trademark. Furthermore, featuring the product in the film blurred the distinctiveness of its marks and created consumer confusion.
In denying Wham-O's claims, Judge Patel determined that it was "obvious and unmistakable" that the slide was being misused, and the characters even go so far as to say that the slide is being misused. The judge further noted that "it is not unusual for movie producers to use … products and props … to cultivate interest in a film. … Nothing … suggests that [Paramount] used [Wham-O's] marks to imply that [Wham-O] placed its imprimatur on the film; nowhere in [Paramount's] publicity efforts is [Wham-O's] mark unreasonably displayed or abused."
Wham-O, Inc. v. Paramount Pictures Corp., 286 F.Supp.2d 1254, 2003 U.S.Dist.LEXIS 21762 (N.D.Cal. 2003)
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