LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
June 30, 2005
In this newsletter:
SUPREME COURT'S GROKSTER RULING MAY OPEN DOORS TO INCREASED INTELLECTUAL PROPERTY LITIGATION
The United States Supreme Court released its long anticipated decision in the MGM v. Grokster case debating the question of whether companies in the business of creating file-sharing software can be held liable for the infringing acts of their users. The Supreme Court, in a unanimous decision, held that they could, overturning the general "no secondary liability" principle established in the well-known 1984 "Betamax" case.
Justice Souter wrote "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringements by third parties." It is important to note Souter's use of the word "device" rather than of simply saying "software." This holding can technically and broadly be extended to apply to manufacturers of any type of device, including possibly the Ipod, TiVo, Google, etc., that consumers could possibly use to facilitate their own copyright infringing activities.
Where increased litigation is likely to stem from, is how will a company's "intent" be defined and determined by the courts? When does a company intend for its product to be used for the purposes of copyright infringement, and what steps will a company have to take to safely defend itself against such claims? Technology companies and their lawyers will potentially need to employ a wide range of safeguarding tactics, varying from simple disclaimers to more extreme measures like pledging to actively find and prosecute infringing consumers.
Some organizations, such as the Electronic Freedom Foundation (EFF), worry that the ruling will result in harm to American technology companies. American companies will have to spend increased money on safeguards and litigation and possibly hold back on technological innovation, while foreign competitors will not have to sensor their developing technologies for fear of liability. It remains to be seen if such fears will manifest. In the short term, music and entertainment companies will be celebrating the Court's decision as a victory and view the ruling as a step towards the needed increased protection of copyright and other intellectual property rights.
Metro-Gold-Mayer Studios, Inc. v. Grokster, Ltd., S.Ct., 2005 WL 1499402 U.S. 2005.
The complete Supreme Court Opinion can be found here.
SAG ANNOUNCES NEW AND REVISED LOW BUDGET AGREEMENTS
Independent filmmakers are getting good news from SAG. Effective July 1, 2005, SAG's new and revised low budget agreements will make it easier to make films with SAG actors. In addition, the SAG Indie Web site has sample contracts and initial paperwork for the signatory process available for download.
A summary of the new and revised agreements can be found at SAGIndie.org.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Thursday, June 30, 2005
Wednesday, June 22, 2005
Nevada Supreme Court Overturns State "Son of Sam" Law
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
June 22, 2005
In this newsletter:
NEVADA SUPREME COURT OVERTURNS STATE "SON OF SAM" LAW AS UNCONSTITUTIONAL
The original "Son of Sam" law was enacted in 1977 in New York to ensure that the infamous serial killer David Berkowitz, known as the "Son of Sam," would not profit from any future memoirs he might publish from prison regarding his murders. Several other states, including Nevada, followed New York's lead and implemented their own "Son of Sam" laws, regardless of the fact that the United States Supreme Court struck down New York's law as unconstitutional. Generally, such laws provide that all proceeds that a felon receives from published materials about his offense must be turned over to his victim's family.
Jimmy Lerner is a Nevada felon, convicted for the murder of Mark Slavin. Lerner wrote a book in prison, "You Got Nothing Coming, Notes From a Prison Fish," which describes both his life experiences in prison as well as Slavin's murder. Pursuant to the Nevada "Son of Sam" law, Donna Seres, the victim's sister, sued Lerner for all the profits from his book. The Nevada Supreme Court ruled against Seres and confirmed what the lower courts had held, that the "Son of Sam" law failed to satisfy the strict scrutiny test that the First Amendment required be applied to it, and thus that the law was unconstitutional.
The First Amendment requires that all content-based restrictive legislation must satisfy strict scrutiny. In other words the law must address a compelling state interest and must be narrowly tailored to achieve that interest. While the law did serve Nevada's compelling state interest in "the compensation of crime victims and the prevention of direct profiteering from criminal misconduct," the Nevada Supreme Court held that the law was not narrowly tailored enough to be upheld.
Under the construction of the law, victims would be able to recover profits from felons' works that merely mentioned their crimes but were virtually unrelated to them, such as memoirs about prison life. The Nevada Supreme Court also found that it would be impractical to try and measure what percentage of the profits were aptly related to the crime and thus potentially recoverable by the victim's family. As well, the Nevada Supreme Court found that the law was broad and over-inclusive as it applied to all those who had "committed" a felony rather than only those persons actually "convicted" of such a felony.
Seres v. Lerner, 102 P.3d 91, 2004 Nev.LEXIS 12733 (Nev. 2004).
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
June 22, 2005
In this newsletter:
NEVADA SUPREME COURT OVERTURNS STATE "SON OF SAM" LAW AS UNCONSTITUTIONAL
The original "Son of Sam" law was enacted in 1977 in New York to ensure that the infamous serial killer David Berkowitz, known as the "Son of Sam," would not profit from any future memoirs he might publish from prison regarding his murders. Several other states, including Nevada, followed New York's lead and implemented their own "Son of Sam" laws, regardless of the fact that the United States Supreme Court struck down New York's law as unconstitutional. Generally, such laws provide that all proceeds that a felon receives from published materials about his offense must be turned over to his victim's family.
Jimmy Lerner is a Nevada felon, convicted for the murder of Mark Slavin. Lerner wrote a book in prison, "You Got Nothing Coming, Notes From a Prison Fish," which describes both his life experiences in prison as well as Slavin's murder. Pursuant to the Nevada "Son of Sam" law, Donna Seres, the victim's sister, sued Lerner for all the profits from his book. The Nevada Supreme Court ruled against Seres and confirmed what the lower courts had held, that the "Son of Sam" law failed to satisfy the strict scrutiny test that the First Amendment required be applied to it, and thus that the law was unconstitutional.
The First Amendment requires that all content-based restrictive legislation must satisfy strict scrutiny. In other words the law must address a compelling state interest and must be narrowly tailored to achieve that interest. While the law did serve Nevada's compelling state interest in "the compensation of crime victims and the prevention of direct profiteering from criminal misconduct," the Nevada Supreme Court held that the law was not narrowly tailored enough to be upheld.
Under the construction of the law, victims would be able to recover profits from felons' works that merely mentioned their crimes but were virtually unrelated to them, such as memoirs about prison life. The Nevada Supreme Court also found that it would be impractical to try and measure what percentage of the profits were aptly related to the crime and thus potentially recoverable by the victim's family. As well, the Nevada Supreme Court found that the law was broad and over-inclusive as it applied to all those who had "committed" a felony rather than only those persons actually "convicted" of such a felony.
Seres v. Lerner, 102 P.3d 91, 2004 Nev.LEXIS 12733 (Nev. 2004).
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Tuesday, June 14, 2005
Congress Announces Family Entertainment and Copyright Act of 2005
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
June 14, 2005
In this newsletter:
NEW CONGRESSIONAL AMENDMENT, THE "FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005" WILL IMPACT THE ENTERTAINMENT INDUSTRY
Congress' recent amendments to the Federal Copyright Act will result in three significant changes: authorizing the "sanitization" of movies for private viewing; making the camcording of movies in theatres a federal crime; and allowing certain works vulnerable to copyright infringement special "pre-registration" rights and thus access to previously unavailable statutory remedies.
The Family Movie Act of 2005
This Act arose from the litigation sparked by the development of several family oriented companies that created technology to sanitize violence and sex from films for private home viewing. ClearPlay is one such company. Its sanitization technology consists of software that does not actually alter or reproduce the films, but rather instructs the user's DVD player to fast-forward or mute through sensitive scenes. ClearPlay's competitor, Clean Flicks actually makes an edited copy of the original film.
The new Act will allow for ClearPlay types of sanitation technologies, but not for Clean Flicks' methods. The Act reads that no copyright infringement occurs when "limited portions of audio or video content of a motion picture" are made "imperceptible" for home viewing, but only so long as "no fixed copy of the altered version" is created. Additionally the Act amends the Trademark Act to eliminate any potential liability under Trademark law, so long as viewers are notified that they are watching an altered version of the film.
The Artists' Rights and Theft Prevention Act of 2005 (ART Act)
It's been estimated that the movie industry loses 3.5 billion annually due to hard-goods piracy, one source of which is the camcording of first-run movies in theatres and conversion into DVD's or online downloads. The ART Act notes that in making camcording a federal crime, the Act complements rather than preempts existing state laws. Thus the Act will serve to empower theatre personnel with the authority to detain and question individuals whom they reasonably believe are camcording a movie, and to immunize theatres against potential suits that might arise from the suspect's detention.
Pre-Registration Rights
While registration is not required for copyright protection, it does give registrants valuable statutory remedies such as attorney's fees and statutory damages so long as registration has occurred prior to the infringement. Typically this works well as most works are not vulnerable to infringement prior to their public release. However, Congress has acknowledged that some works are more vulnerable to pre-release infringement and that the Copyright Office may give such works "pre-registration" status. Such status will allow a copyright owner access to statutory remedies even if infringement occurs prior to its public release and actual registration.
Family Entertainment and Copyright Act of 2005, S.167 (109th Cong., 1st Sess. 2005), available at as a PDF file.
"SCREEN DOOR JESUS" SECURES NORTH AMERICAN DISTRIBUTION
Congratulations to our client, Sam Adelman. His film, "Screen Door Jesus" will be distributed domestically by Indican Pictures.
"Screen Door Jesus," a story about the mysterious appearance of an image of Jesus on a screen door, won accolades at the Hamptons and South by Southwest film festivals in 2003.
The Hollywood Reporter has the scoop.
The official movie site is at www.screendoorjesusthemovie.com.
"BRISTOL BOYS" FILMMAKER AWARDED DIGITAL FILMMAKER'S GRANT
Our client, Brandon Cole, received the Panasonic Digital Filmmaker's Grant to shoot his motion picture, "Bristol Boys." Panasonic conducted an interview with Brandon, which is available on Panasonic's website.
MARK IN THE MEDIA
Confused about movie titles? "Slate" magazine has published an article about title confusion and quotes Mark.
SAG Indie has published an in-depth interview with Mark. It's available at www.sagindie.org/spotlight.html.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
June 14, 2005
In this newsletter:
NEW CONGRESSIONAL AMENDMENT, THE "FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005" WILL IMPACT THE ENTERTAINMENT INDUSTRY
Congress' recent amendments to the Federal Copyright Act will result in three significant changes: authorizing the "sanitization" of movies for private viewing; making the camcording of movies in theatres a federal crime; and allowing certain works vulnerable to copyright infringement special "pre-registration" rights and thus access to previously unavailable statutory remedies.
The Family Movie Act of 2005
This Act arose from the litigation sparked by the development of several family oriented companies that created technology to sanitize violence and sex from films for private home viewing. ClearPlay is one such company. Its sanitization technology consists of software that does not actually alter or reproduce the films, but rather instructs the user's DVD player to fast-forward or mute through sensitive scenes. ClearPlay's competitor, Clean Flicks actually makes an edited copy of the original film.
The new Act will allow for ClearPlay types of sanitation technologies, but not for Clean Flicks' methods. The Act reads that no copyright infringement occurs when "limited portions of audio or video content of a motion picture" are made "imperceptible" for home viewing, but only so long as "no fixed copy of the altered version" is created. Additionally the Act amends the Trademark Act to eliminate any potential liability under Trademark law, so long as viewers are notified that they are watching an altered version of the film.
The Artists' Rights and Theft Prevention Act of 2005 (ART Act)
It's been estimated that the movie industry loses 3.5 billion annually due to hard-goods piracy, one source of which is the camcording of first-run movies in theatres and conversion into DVD's or online downloads. The ART Act notes that in making camcording a federal crime, the Act complements rather than preempts existing state laws. Thus the Act will serve to empower theatre personnel with the authority to detain and question individuals whom they reasonably believe are camcording a movie, and to immunize theatres against potential suits that might arise from the suspect's detention.
Pre-Registration Rights
While registration is not required for copyright protection, it does give registrants valuable statutory remedies such as attorney's fees and statutory damages so long as registration has occurred prior to the infringement. Typically this works well as most works are not vulnerable to infringement prior to their public release. However, Congress has acknowledged that some works are more vulnerable to pre-release infringement and that the Copyright Office may give such works "pre-registration" status. Such status will allow a copyright owner access to statutory remedies even if infringement occurs prior to its public release and actual registration.
Family Entertainment and Copyright Act of 2005, S.167 (109th Cong., 1st Sess. 2005), available at as a PDF file.
"SCREEN DOOR JESUS" SECURES NORTH AMERICAN DISTRIBUTION
Congratulations to our client, Sam Adelman. His film, "Screen Door Jesus" will be distributed domestically by Indican Pictures.
"Screen Door Jesus," a story about the mysterious appearance of an image of Jesus on a screen door, won accolades at the Hamptons and South by Southwest film festivals in 2003.
The Hollywood Reporter has the scoop.
The official movie site is at www.screendoorjesusthemovie.com.
"BRISTOL BOYS" FILMMAKER AWARDED DIGITAL FILMMAKER'S GRANT
Our client, Brandon Cole, received the Panasonic Digital Filmmaker's Grant to shoot his motion picture, "Bristol Boys." Panasonic conducted an interview with Brandon, which is available on Panasonic's website.
MARK IN THE MEDIA
Confused about movie titles? "Slate" magazine has published an article about title confusion and quotes Mark.
SAG Indie has published an in-depth interview with Mark. It's available at www.sagindie.org/spotlight.html.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Tuesday, May 24, 2005
Writers Lawsuit Revived, Mark Teaches in Michigan
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
May 24, 2005
In this newsletter:
WRITERS' DISCRIMINATION LAWSUIT REVIVED BY APPEALS COURT
Four years after it was initially filed, a class-action age discrimination lawsuit filed by a group of WGA writers has been revived on appeal and sent back for trial.
In 2001, members of the Writers Guild went to Federal court to claim that they had been systematically discriminated against by television networks, production companies, and talent agencies because they were more than 40 years old. The original case had been dismissed for procedural reasons, without prejudice and with leave to amend.
The writers decided to abandon their Federal lawsuit and rewrite their script, bringing a new suit in the California state courts instead. They claimed that the television networks and production companies’ systematic discrimination against older writers violated the California Fair Employment and Housing Act.
Furthermore, the writers argued that talent agencies were “aiding and abetting” the discrimination by pre-screening writers and not referring older candidates for consideration on projects. The writers claimed that because talent agencies refused to provide services on a wide scale, the agencies violated the California Unruh Civil Rights Act, which protects against discrimination in providing services.
The state lawsuit was dismissed in trial court, however, the writers won a reversal of that decision on appeal.
Justice Paul Boland, writing for the Court of Appeal, wrote that the writers properly alleged “classwide claims” as well as a “pattern and practice” of discrimination against older writers among networks and production companies.
The writers also made proper allegations that talent agencies supposedly knew of the networks and production companies’ discrimination policy against older writers and gave “substantial assistance or encouragement” of the policy by only submitting names of younger writers to projects.
In addition, the writers adequately presented claims of unfair competition against the networks, production companies and talent agencies.
Alch v. Superior Court, 19 Cal.Rptr.3d 29, 2004 Cal.App.LEXIS 1531 (Cal.App. 2004), petition for hearing by the California Supreme Court denied (Dec. 22, 2004).
MARK BRINGS HIS RISKY BUSINESS SEMINAR TO DETROIT
Filmmakers in Michigan wanting to understand film financing and distribution of indie films can now register for Mark’s Oct. 15 seminar at Wayne State University.
The one-day seminar will teach filmmakers how independent films are financed and distributed. Topics covered include forming a production company, raising financing via pre-sales, debt and limited partnerships, negotiating tactics, principal terms of the acquisition/distribution agreement, cross-collaterization and creative accounting.
The seminar is being offered through ArtServe Michigan in partnership with Wayne State University Law School Sports & Entertainment Law Society and the University of Detroit-Mercy Law School Arts, Entertainment & Sports Association.
For more information and to register, click here.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.Copyright 2005, Mark Litwak
May 24, 2005
In this newsletter:
WRITERS' DISCRIMINATION LAWSUIT REVIVED BY APPEALS COURT
Four years after it was initially filed, a class-action age discrimination lawsuit filed by a group of WGA writers has been revived on appeal and sent back for trial.
In 2001, members of the Writers Guild went to Federal court to claim that they had been systematically discriminated against by television networks, production companies, and talent agencies because they were more than 40 years old. The original case had been dismissed for procedural reasons, without prejudice and with leave to amend.
The writers decided to abandon their Federal lawsuit and rewrite their script, bringing a new suit in the California state courts instead. They claimed that the television networks and production companies’ systematic discrimination against older writers violated the California Fair Employment and Housing Act.
Furthermore, the writers argued that talent agencies were “aiding and abetting” the discrimination by pre-screening writers and not referring older candidates for consideration on projects. The writers claimed that because talent agencies refused to provide services on a wide scale, the agencies violated the California Unruh Civil Rights Act, which protects against discrimination in providing services.
The state lawsuit was dismissed in trial court, however, the writers won a reversal of that decision on appeal.
Justice Paul Boland, writing for the Court of Appeal, wrote that the writers properly alleged “classwide claims” as well as a “pattern and practice” of discrimination against older writers among networks and production companies.
The writers also made proper allegations that talent agencies supposedly knew of the networks and production companies’ discrimination policy against older writers and gave “substantial assistance or encouragement” of the policy by only submitting names of younger writers to projects.
In addition, the writers adequately presented claims of unfair competition against the networks, production companies and talent agencies.
Alch v. Superior Court, 19 Cal.Rptr.3d 29, 2004 Cal.App.LEXIS 1531 (Cal.App. 2004), petition for hearing by the California Supreme Court denied (Dec. 22, 2004).
MARK BRINGS HIS RISKY BUSINESS SEMINAR TO DETROIT
Filmmakers in Michigan wanting to understand film financing and distribution of indie films can now register for Mark’s Oct. 15 seminar at Wayne State University.
The one-day seminar will teach filmmakers how independent films are financed and distributed. Topics covered include forming a production company, raising financing via pre-sales, debt and limited partnerships, negotiating tactics, principal terms of the acquisition/distribution agreement, cross-collaterization and creative accounting.
The seminar is being offered through ArtServe Michigan in partnership with Wayne State University Law School Sports & Entertainment Law Society and the University of Detroit-Mercy Law School Arts, Entertainment & Sports Association.
For more information and to register, click here.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.Copyright 2005, Mark Litwak
Thursday, May 12, 2005
Georgia Production Incentives, "Hustle & Flow" on AICN
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
May 12, 2005
In this newsletter:
GEORGIA ADOPTS PRODUCTION INCENTIVES
The governor of Georgia has signed the Georgia Entertainment Industry Investment Act.
HB539 enhances Georgia's competitiveness in the entertainment industry. Production companies investing at least $500,000 in services, materials and labor for a project in Georgia will receive a 9% base tax credit applied to their total investment. Companies will receive an additional 3% tax credit for hiring Georgia residents.
An additional 3% incentive is available for filming in an economically disadvantaged county. And for companies that invest in multiple television projects of more than $20 million in the state, there is an additional 2% credit. Additional information available here.
AIN’T IT COOL NEWS DIGS “HUSTLE & FLOW”
Harry Knowles of "Ain't It Cool News" has given a rave review to "Hustle & Flow," written and directed by our client, Craig Brewer.
"Like Tarantino did to the Kung Fu Revenge flick and Edgar Wright Jr did to the Zombie flick - Craig Brewer has done to Blaxploitation, writes Knowles. He gives additional props to the cast, who give a performance that "feels vital and alive and happening right before your eyes."
Read the review here. "Hustle & Flow" comes out this summer. Click here to visit the official website.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.Copyright 2005, Mark Litwak
Monday, April 04, 2005
"Rounders" Remanded by Ninth Circuit; Mark Talks Legal Self-Defense
April 4, 2005
In this newsletter:
FEDERAL APPEALS COURT UPHOLDS DISMISSAL OF COPYRIGHT INFRINGEMENT CLAIM AGAINST MIRAMAX FOR THE MOVIE "ROUNDERS" WHILE ALLOWING A STATE CLAIM FOR BREACH OF AN IMPLIED CONTRACT TO MOVE FORWARD
The U.S. Court of Appeals for the Ninth Circuit upheld the District Court's dismissal of a copyright infringement claim filed by screenwriter Jeff Grosso against Miramax Films (Grosso v. Miramax Film Corp., 383 F.3d 965 (2004)). Grosso claimed that the movie "Rounders" infringed his copyright in a screenplay he wrote entitled "The Shell Game." He based his claim on the fact that he had pitched his screenplay to Miramax before "Rounders" was made. The court of appeals found that the two works were not substantially similar to support a claim of copyright infringement against Miramax. The only similarities between the two works were some of the language used, which the court found to be "unprotectible poker jargon." But the court did find that the circumstances in which Grosso's screenplay was pitched to Miramax might support a state claim for breach of an implied contract. The state contract claim was originally dismissed by the district court on the grounds that federal copyright law preempted it. The court of appeals found this judgment to be in error and reversed. Copyright law did not preempt the state claim because the state claim provided for protection of "different rights from those protected by copyright." Under California state law a contract may be implied when an idea is disclosed from one party to another "under circumstances from which it could be concluded that the offeree voluntarily accepted the disclosure knowing the conditions on which it was tendered and the reasonable value of the work." There exists no similar protection under federal copyright law, therefore making preemption improper. The U.S. Court of Appeals found that the circumstances in which the idea of "The Shell Game" was disclosed to Miramax were such that the claim should survive summary judgment. The claim was remanded to the district court for further proceedings.
LEARN SELF-DEFENSE FROM MARK AT UCLA
On April 16-17, Mark will be at UCLA teaching his popular course, "Self-Defense for Independent Filmmakers: Protecting Your Legal Rights." This two-day seminar teaches filmmakers how to anticipate problems before they arise in their negotiations with production and distribution companies. Students will learn how toand create incentives to encourage 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 register for the course, visit www.uclaextension.edu/ and type "Mark Litwak" in the search box.
CONGRATULATIONS TO OUR CLIENTS
Two of our clients are premiering their films at The Method Fest in Calabasas, California this week:
"Zooey," written and directed by our client, Sherman Lau, is an urban love story of a young prostitute and her husband trying to escape their life on the street. "Zooey" stars newcomers Sarah Louise Lilley and Xavier Jimenez. The official website is www.christmaswish.org/zooeyfilms/ZooeyFilm.htm . "Zooey" screens April 4 at 9:30PM at the Edwards Cinema 3.
"Fighting Words," written and directed by our client, Paul Edwards. The film centers around a gifted poet who is discovered by an attractive publisher. The two embark on a relationship that teaches both that love is more than words. The film stars C. Thomas Howell, Jeff Stearns, Tara D'Agostino and Fred Willard. The official website is www.fightingwordsmovie.com . "Fighting Words" screens April 5 at 2:00PM at the Motion Picture & Television Fund Louis B. Mayer Theater.
For more information about The Method Fest, visit www.methodfest.com/ .
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
==========================================================
In this newsletter:
FEDERAL APPEALS COURT UPHOLDS DISMISSAL OF COPYRIGHT INFRINGEMENT CLAIM AGAINST MIRAMAX FOR THE MOVIE "ROUNDERS" WHILE ALLOWING A STATE CLAIM FOR BREACH OF AN IMPLIED CONTRACT TO MOVE FORWARD
The U.S. Court of Appeals for the Ninth Circuit upheld the District Court's dismissal of a copyright infringement claim filed by screenwriter Jeff Grosso against Miramax Films (Grosso v. Miramax Film Corp., 383 F.3d 965 (2004)). Grosso claimed that the movie "Rounders" infringed his copyright in a screenplay he wrote entitled "The Shell Game." He based his claim on the fact that he had pitched his screenplay to Miramax before "Rounders" was made. The court of appeals found that the two works were not substantially similar to support a claim of copyright infringement against Miramax. The only similarities between the two works were some of the language used, which the court found to be "unprotectible poker jargon." But the court did find that the circumstances in which Grosso's screenplay was pitched to Miramax might support a state claim for breach of an implied contract. The state contract claim was originally dismissed by the district court on the grounds that federal copyright law preempted it. The court of appeals found this judgment to be in error and reversed. Copyright law did not preempt the state claim because the state claim provided for protection of "different rights from those protected by copyright." Under California state law a contract may be implied when an idea is disclosed from one party to another "under circumstances from which it could be concluded that the offeree voluntarily accepted the disclosure knowing the conditions on which it was tendered and the reasonable value of the work." There exists no similar protection under federal copyright law, therefore making preemption improper. The U.S. Court of Appeals found that the circumstances in which the idea of "The Shell Game" was disclosed to Miramax were such that the claim should survive summary judgment. The claim was remanded to the district court for further proceedings.
LEARN SELF-DEFENSE FROM MARK AT UCLA
On April 16-17, Mark will be at UCLA teaching his popular course, "Self-Defense for Independent Filmmakers: Protecting Your Legal Rights." This two-day seminar teaches filmmakers how to anticipate problems before they arise in their negotiations with production and distribution companies. Students will learn how toand create incentives to encourage 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 register for the course, visit www.uclaextension.edu/ and type "Mark Litwak" in the search box.
CONGRATULATIONS TO OUR CLIENTS
Two of our clients are premiering their films at The Method Fest in Calabasas, California this week:
"Zooey," written and directed by our client, Sherman Lau, is an urban love story of a young prostitute and her husband trying to escape their life on the street. "Zooey" stars newcomers Sarah Louise Lilley and Xavier Jimenez. The official website is www.christmaswish.org/zooeyfilms/ZooeyFilm.htm . "Zooey" screens April 4 at 9:30PM at the Edwards Cinema 3.
"Fighting Words," written and directed by our client, Paul Edwards. The film centers around a gifted poet who is discovered by an attractive publisher. The two embark on a relationship that teaches both that love is more than words. The film stars C. Thomas Howell, Jeff Stearns, Tara D'Agostino and Fred Willard. The official website is www.fightingwordsmovie.com . "Fighting Words" screens April 5 at 2:00PM at the Motion Picture & Television Fund Louis B. Mayer Theater.
For more information about The Method Fest, visit www.methodfest.com/ .
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
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Thursday, March 03, 2005
Copyright Infringed? You Could Claim Punitive Damages; "Retirement" on a Roll
March 2, 2005
In this newsletter:
U.S. DISTRICT COURT RULING MAY ALLOW PUNITIVE DAMAGES FOR COPYRIGHT INFRINGEMENT
Judge Louis Stanton of the United States District Court for the Southern District of New York recently allowed a plaintiff to amend her complaint in order that she may seek punitive damages for a claim of copyright infringement (Blanch v. Koons, 329 F.Supp.2d 568, (S.D.N.Y. 2004)).
Plaintiffs have traditionally not been allowed to recover punitive damages for copyright infringement. The goal of punitive damages is to allow plaintiffs in a civil action to recover above and beyond their actual damages when it can be shown that the defendant's actions were particularly egregious. The effect of punitive damages is to punish a defendant for conduct that was deliberate, a remedy not available in civil cases unless the plaintiff is able to demonstrate to the jury that defendant's conduct was of a level deserving of punishment.
Copyright law authorizes a plaintiff to claim statutory damages up to $150,000 if the defendant's conduct was willful and if the copyright was registered with the copyright office prior to the infringing act (17 U.S.C.S. §504). These statutory damages have traditionally been viewed as serving the same purpose as punitive damages, thereby foreclosing plaintiffs from recovering punitive damages in copyright infringement cases. In this case, however, statutory damages were not available because the infringement occurred before registration of the copyright.
In allowing the plaintiff to amend her complaint to seek punitive damages the judge followed a decision in the District Court for the Southern District of New York in which it was held that the Copyright Act did not itself prohibit punitive damages (TVT Records v. The Island Def Jam Music Group, 262 F.Supp.2d 185, 187, (S.D.N.Y. 2003)).
Judge Stanton indicated that the primary reason for granting the plaintiff leave to amend the complaint was that the holding in TVT Records requires that the plaintiff be given the opportunity to "prove malice and raise squarely the question whether punitive damages are available to her". This opinion does not mean that punitive damages will be awarded; it only means that the issue will be heard.
"RETIREMENT" ON A ROLL
Our client, Corner Stone Pictures, has begun production of its film, "Retirement," starring Billy Burke, Bill Cobbs, Peter Falk, George Segal, Rip Torn, and Coolio. The film will be shot in Miami, New Orleans and Las Vegas.
Described as "Grumpy Old Men" meets "Road Trip," the film follows Fitzy and his three retiree friends on a mission to stop Fitzy's daughter from marrying the wrong guy.
"ZOOEY" AND "FIGHTING WORDS" TO SCREEN AT METHODFEST
The MethodFest independent film festival has accepted two clients' films into its screening competition, held April 1-8 in Calabasas, Calif.
The film "Zooey," written and directed by our client, Sherman Lau, is an urban love story of a young prostitute and her husband trying to escape their life on the street. "Zooey" stars newcomers Sarah Louise Lilley and Xavier Jimenez. The official website is www.ZooeyFilms.com.
The film, "Fighting Words," written and directed by our client, Paul Edwards. The film centers around a gifted poet who is discovered by an attractive publisher. The two embark on a relationship that teaches both that love is more than words. The film stars C. Thomas Howell, Jeff Stearns, Tara D'Agostino and Fred Willard. The official website is www.fightingwordsmovie.com.
For more information, visit www.methodfest.com.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
In this newsletter:
U.S. DISTRICT COURT RULING MAY ALLOW PUNITIVE DAMAGES FOR COPYRIGHT INFRINGEMENT
Judge Louis Stanton of the United States District Court for the Southern District of New York recently allowed a plaintiff to amend her complaint in order that she may seek punitive damages for a claim of copyright infringement (Blanch v. Koons, 329 F.Supp.2d 568, (S.D.N.Y. 2004)).
Plaintiffs have traditionally not been allowed to recover punitive damages for copyright infringement. The goal of punitive damages is to allow plaintiffs in a civil action to recover above and beyond their actual damages when it can be shown that the defendant's actions were particularly egregious. The effect of punitive damages is to punish a defendant for conduct that was deliberate, a remedy not available in civil cases unless the plaintiff is able to demonstrate to the jury that defendant's conduct was of a level deserving of punishment.
Copyright law authorizes a plaintiff to claim statutory damages up to $150,000 if the defendant's conduct was willful and if the copyright was registered with the copyright office prior to the infringing act (17 U.S.C.S. §504). These statutory damages have traditionally been viewed as serving the same purpose as punitive damages, thereby foreclosing plaintiffs from recovering punitive damages in copyright infringement cases. In this case, however, statutory damages were not available because the infringement occurred before registration of the copyright.
In allowing the plaintiff to amend her complaint to seek punitive damages the judge followed a decision in the District Court for the Southern District of New York in which it was held that the Copyright Act did not itself prohibit punitive damages (TVT Records v. The Island Def Jam Music Group, 262 F.Supp.2d 185, 187, (S.D.N.Y. 2003)).
Judge Stanton indicated that the primary reason for granting the plaintiff leave to amend the complaint was that the holding in TVT Records requires that the plaintiff be given the opportunity to "prove malice and raise squarely the question whether punitive damages are available to her". This opinion does not mean that punitive damages will be awarded; it only means that the issue will be heard.
"RETIREMENT" ON A ROLL
Our client, Corner Stone Pictures, has begun production of its film, "Retirement," starring Billy Burke, Bill Cobbs, Peter Falk, George Segal, Rip Torn, and Coolio. The film will be shot in Miami, New Orleans and Las Vegas.
Described as "Grumpy Old Men" meets "Road Trip," the film follows Fitzy and his three retiree friends on a mission to stop Fitzy's daughter from marrying the wrong guy.
"ZOOEY" AND "FIGHTING WORDS" TO SCREEN AT METHODFEST
The MethodFest independent film festival has accepted two clients' films into its screening competition, held April 1-8 in Calabasas, Calif.
The film "Zooey," written and directed by our client, Sherman Lau, is an urban love story of a young prostitute and her husband trying to escape their life on the street. "Zooey" stars newcomers Sarah Louise Lilley and Xavier Jimenez. The official website is www.ZooeyFilms.com.
The film, "Fighting Words," written and directed by our client, Paul Edwards. The film centers around a gifted poet who is discovered by an attractive publisher. The two embark on a relationship that teaches both that love is more than words. The film stars C. Thomas Howell, Jeff Stearns, Tara D'Agostino and Fred Willard. The official website is www.fightingwordsmovie.com.
For more information, visit www.methodfest.com.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Monday, January 31, 2005
Film Updates; British Columbia Incentives
January 31, 2005
In this newsletter:
"HUSTLE & FLOW" WINS SUNDANCE AUDIENCE AWARD
Congratulations to our client, writer/director Craig Brewer. His film, "Hustle & Flow," won the American Dramatic Audience Award at the Sundance Film Festival. Winners were announced yesterday at the Park City Racquet Club. The film sold to Paramount for $9 million earlier in the week.
"Hustle & Flow" is the story of a Memphis pimp who wants to be a rap star. The picture stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning. The film should be in theaters this summer.
“THE MATADOR” SELLS TO MIRAMAX
Congratulations to our client, writer/director Richard Shepard. Miramax bought distribution rights to his film, “The Matador,” for $7.5 million at Sundance.
“The Matador” is a quirky thriller that stars Pierce Brosnan as a lonely hitman and his friendship with an unsuspecting couple from suburbia played by Greg Kinnear and Hope Davis.
CONGRATULATIONS TO “MARILYN HOTCHKISS”
Congratulations to our clients Art Klein, executive producer, and Eileen Craft, producer of “Marilyn Hotchkiss Ballroom Dancing and Charm School.” Their film received a standing ovation from the Sundance audience after its world premiere screening and got a thumbs-up review from Ain’t It Cool News. “Marilyn Hotchkiss” tells the tale of a widower whose life is changed when he goes to search for a dying man’s lost love. The film stars Robert Carlyle, Marisa Tomei, Mary Steenburgen, Sean Astin, Donnie Wahlberg, David Paymer, Camryn Manheim, Adam Arkin, Sonia Braga, Elden Henson, Ernie Hudson, Miguel Sandoval, Danny DeVito, John Goodman.
Click here for the review.
BRITISH COLUMBIA ROLLS OUT NEW INCENTIVES
In response to the new TV and film production incentives announced by Ontario and Quebec provinces, British Columbia has introduced legislation to step up its own tax incentive plan. The new incentives, which will be introduced to the provincial legislature in February, will increase the foreign production service tax credit to 18 percent, and raise the domestic tax credit to 30 percent.If ratified, the increases will take effect Jan. 1, 2005, and continue until Mar. 31, 2006. The move is seen as an attempt to keep productions from heading to the eastern provinces.
Click here for B.C.'s current film and television incentives.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
In this newsletter:
"HUSTLE & FLOW" WINS SUNDANCE AUDIENCE AWARD
Congratulations to our client, writer/director Craig Brewer. His film, "Hustle & Flow," won the American Dramatic Audience Award at the Sundance Film Festival. Winners were announced yesterday at the Park City Racquet Club. The film sold to Paramount for $9 million earlier in the week.
"Hustle & Flow" is the story of a Memphis pimp who wants to be a rap star. The picture stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning. The film should be in theaters this summer.
“THE MATADOR” SELLS TO MIRAMAX
Congratulations to our client, writer/director Richard Shepard. Miramax bought distribution rights to his film, “The Matador,” for $7.5 million at Sundance.
“The Matador” is a quirky thriller that stars Pierce Brosnan as a lonely hitman and his friendship with an unsuspecting couple from suburbia played by Greg Kinnear and Hope Davis.
CONGRATULATIONS TO “MARILYN HOTCHKISS”
Congratulations to our clients Art Klein, executive producer, and Eileen Craft, producer of “Marilyn Hotchkiss Ballroom Dancing and Charm School.” Their film received a standing ovation from the Sundance audience after its world premiere screening and got a thumbs-up review from Ain’t It Cool News. “Marilyn Hotchkiss” tells the tale of a widower whose life is changed when he goes to search for a dying man’s lost love. The film stars Robert Carlyle, Marisa Tomei, Mary Steenburgen, Sean Astin, Donnie Wahlberg, David Paymer, Camryn Manheim, Adam Arkin, Sonia Braga, Elden Henson, Ernie Hudson, Miguel Sandoval, Danny DeVito, John Goodman.
Click here for the review.
BRITISH COLUMBIA ROLLS OUT NEW INCENTIVES
In response to the new TV and film production incentives announced by Ontario and Quebec provinces, British Columbia has introduced legislation to step up its own tax incentive plan. The new incentives, which will be introduced to the provincial legislature in February, will increase the foreign production service tax credit to 18 percent, and raise the domestic tax credit to 30 percent.If ratified, the increases will take effect Jan. 1, 2005, and continue until Mar. 31, 2006. The move is seen as an attempt to keep productions from heading to the eastern provinces.
Click here for B.C.'s current film and television incentives.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Monday, January 24, 2005
CONGRATULATIONS TO OUR CLIENT, CRAIG BREWER
January 24, 2005
In this newsletter:
CONGRATULATIONS TO OUR CLIENT, CRAIG BREWER
Congratulations to our client, director and writer Craig Brewer. His film, "Hustle & Flow," was picked up for distribution by Viacom at the Sundance Film Festival for a $9 million advance. It’s part of a $16 million distribution deal -- the biggest deal ever closed at Sundance.
Viacom plans to distribute the film through all of its media channels, with theatrical to be released this summer by Paramount's not-yet-named indie films mini-major. "Hustle & Flow" will be backed by a $15 million P&A campaign primarily funded by Paramount and MTV.
"Hustle & Flow" is the story of a Memphis pimp who wants to be a rap star. The picture stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning. It will continue to screen at Sundance all week.
In this newsletter:
CONGRATULATIONS TO OUR CLIENT, CRAIG BREWER
Congratulations to our client, director and writer Craig Brewer. His film, "Hustle & Flow," was picked up for distribution by Viacom at the Sundance Film Festival for a $9 million advance. It’s part of a $16 million distribution deal -- the biggest deal ever closed at Sundance.
Viacom plans to distribute the film through all of its media channels, with theatrical to be released this summer by Paramount's not-yet-named indie films mini-major. "Hustle & Flow" will be backed by a $15 million P&A campaign primarily funded by Paramount and MTV.
"Hustle & Flow" is the story of a Memphis pimp who wants to be a rap star. The picture stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning. It will continue to screen at Sundance all week.
Monday, January 17, 2005
CONGRATULATIONS TO OUR SUNDANCE ENTRANTS
January 17, 2005
In this newsletter:
CONGRATULATIONS TO OUR SUNDANCE ENTRANTS
Congratulations to our clients whose films have been selected for the upcoming 2005 Sundance Film Festival. Screening times are listed, however times and locations are subject to change. Please check with the box office or the Sundance website at festival.sundance.org/2005/ for any updates. Director and Writer Craig Brewer, “Hustle & Flow” (Dramatic Competition) The film stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning.
In this newsletter:
CONGRATULATIONS TO OUR SUNDANCE ENTRANTS
Congratulations to our clients whose films have been selected for the upcoming 2005 Sundance Film Festival. Screening times are listed, however times and locations are subject to change. Please check with the box office or the Sundance website at festival.sundance.org/2005/ for any updates. Director and Writer Craig Brewer, “Hustle & Flow” (Dramatic Competition) The film stars Terrence Dashon Howard, DJ Qualls, Ludacris, and Taryn Manning.
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