We have filed suit on behalf of our client Black and White Films, Inc., the producer of the independent feature A Foreign Affair, starring David Arquette, Tim Blake Nelson and Emily Mortimer. Our suit was filed suit in California Superior Court against international sales distributor Myriad Pictures, Inc.
The suit alleges that Myriad failed to pay $110,000 of a $200,000 advance as required by the terms of its distribution agreement. According to the suit, Myriad also failed to pay $25,000 for a Hi-Def to film transfer, and breached the agreement by failing to provide the producer with quarterly accounting statements. The Plaintiff is seeking damages in excess of $163,000 plus interest and punitive damages.
The motion picture (released on home video as 2 Brothers & a Bride) was the debut feature of director Helmut Schleppi, and was written by Geert Heetebrij and follows two naive brothers from small-town America (Arquette, Nelson) who, after their doting mother passes away, travel to Russia as part of a singles program, hoping to find a traditionally minded woman like their mom. The film premiered at the January 2003 Sundance Film Festival and was also shown at the May 2003 Cannes Film Market. The film was released theatrically in the United States in May 2004.
"We completed delivery of the Picture to Myriad in April 2004, at which time the balance of the advance was due," according to Geert Heetebrij the writer/producer of the picture. "Myriad's excuse for their failure to pay us has been that they are having cash flow problems."
Mark Litwak, attorney for the Plaintiff said, "Despite repeated requests over almost two years, Myriad has refused to live up to its contractual obligations, leaving the Plaintiff no choice but to file this suit."
Marilyn Hotchkiss’ Ballroom Dancing and Charm School opens on March 31, 2006
Congratulations to our clients Art Klein and Eileen Craft, producers of Marilyn Hotchkiss' Ballroom Dancing & Charm School which will open in more than 50 cities on March 31, 2006. A Sundance film festival favorite, the film is being distributed by Samuel Goldwyn Films.
The film stars Robert Carlyle, Marisa Tomei, Mary Steenburgen, Sean Astin, Donnie Wahlberg, David Paymer, Sonia Braga, Ernie Hudson, Danny DeVito and John Goodman.
for more details on the movie, and to see a trailer.
DeNadie Wins Mexican Academy Award
Congratulations to our client, Tin Dirdamal, whose film DeNadie won the Mexican Academy Award for best documentary.
The film also won the World Cinema Documentary Audience Award at the 2006 Sundance Film Festival.
The film follows immigrants from South America as they traverse Mexico on a dangerous journey to try to reach the Promised Land, the United States. While there have been films that have explored the poor treatment and abuse of Mexican immigrants in the United States, this is the first film I have seen that has shown how immigrants from Honduras and Guatemala are robbed and beaten by both vicious Mexican gangs and the police.
Read more about the award at:
http://www.academiamexicana.com/academia/48/ganadores.html
http://www.golemproducciones.com/industria/nominacionarieles_0206.htm
Read more about the film at: http://www.indiewire.com/people/2006/01/park_city_06_ti.html
Tuesday, March 28, 2006
Sunday, March 12, 2006
Product Placement Article in Delaware Lawyer
Mark has written an in-depth article about product placement in this month’s Delaware Lawyer magazine.
What do the blockbuster movies “Star Wars” and “Mr. and Mrs. Smith” have in common with television shows such as “American Idol?” They are classic examples of product placement – the practice of advertisers inserting their products in movies and television shows in order to build brand awareness and increase sales. The product placement market is projected to grow at a compound annual rate of 14.9% from 2004 to 2009, reaching an estimated $6.94 billion.
By tying licensing and merchandising opportunities directly into movies and TV shows, product placement blurs the line between entertainment and advertising. As a result, it is becoming increasingly difficult to distinguish commercial speech (i.e., speech that proposes a commercial transaction) from non-commercial speech (i.e., speech with artistic or political content).
Traditionally courts have extended greater protection to non-commercial speech, although restrictions on commercial speech may be invalidated if they unconstitutionally limit dissemination of information to the public. This article explores the legal implications of the increasingly intertwined relationship between advertising and entertainment.
To read the full article, go to:
http://www.marklitwak.com/downloads/ProductsAsStars.pdf
RISKY BUSINESS SEMINAR COMES TO DALLAS
Mark will be bringing his one day Risky Business seminar to Dallas on April 8 at Southern Methodist University.
Those who attend this comprehensive all day seminar will learn how independent films are financed and distributed. Topics include organizing your company, raising financing via pre-sales, debt and limited partnerships, negotiating tactics, principal terms of the acquisition/distribution agreement, cross-collateralization and creative accounting. Particular attention is paid to how producers and filmmakers can protect their interests by watering down warranties, getting added to the E& O policy, using lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses.
This seminar is being organized by Random Order Entertainment and is co-sponsored by the Dallas Producers Association, Indie Slate magazine, MLD Equipment, MPS Studios, Texas Association of Film/Tape Professionals (TAFTP) and Women in Film - Dallas.
The cost to attend the seminar is $99, $65 for students and $79 for DPA, TAFTP and WIF members. For more info go to: http://www.randomorder.net/
METHOD FEST FILM FESTIVAL
Congratulations to our clients whose films were selected for the upcoming Method Fest film festival. This year three clients have had their films selected to show at Method Fest.
The 8th annual The Method Fest independent film festival will take place March 31 - April 7 in Calabasas. The Method Fest is the only film festival in America that puts its focus on the actor. The Method Fest is a festival of discovery, seeking story-driven films showcasing breakout acting performances by emerging stars and career-defining roles by established actors.
Our clients’ films are:
Confess
USA, 87 MIN, WEST COAST PREMIERE
Director: Stefan Schaefer
Writer: Stefan Schaefer
Producer: Benjamin Odell, Jonathan Stern
Starring: Eugene Byrd, Ali Larter, Melissa Leo, Glenn Fitzgerald, William Sadler
CONFESS charts the exploits of disillusioned ex-hacker Terell Lessor (Eugene Byrd). Employing strategically placed spy-cams, he captures compromising footage of those who slighted him in the past, broadcasting edits via the internet. Recognizing the power of this model, and working in tandem with accomplice Olivia (Ali Larter), he targets CEOs, politicians, and members of the power elite. Soon Terell's every action is front-page news, law enforcement has labeled him a new breed of terrorist, and the movement he spawned is spiraling out of control.
11:59
USA, 104 MIN
Director: Jamin Winans
Writer: Jamin Winans
Producer: Joe Sekiya
Starring: Raymond Andrew Bailey, Laura Fuller, Megan Heffernan, Liz Cunningham, Chris Kelly, Hayz II, Rosa Vasquez
A jaded news photojournalist, Aaaron Dougherty, has just broken the national news story of the year. After suddenly waking up in a field in the middle of nowhere, with no recollection of the past 24 hours, Aaron is forced to reexamine his life before understanding the mysterious events of his lost time.
The Way Back Home
USA, 93 MIN,
Director: Reza Badiyi
Writer: Michael Houston King
Producer: Michael Houston King, Paul Sirmons
Starring: Michael Houston King, Julie Harris, Tessie Santiago, Ruby Dee, Danny Nucci, Deezer D, Amy Landers
Spencer Krane has it all, the great job, the model wife, the great NY lifestyle. But after the sudden death of his wife he returns to a small southern town to take care of his grandmother who has suffered a stroke. Over the course of a summer back home in this small Florida town he reevaluates his life and develops a sense of hope for his future.
The film schedule and additional information is available at: http://www.methodfest.com/
What do the blockbuster movies “Star Wars” and “Mr. and Mrs. Smith” have in common with television shows such as “American Idol?” They are classic examples of product placement – the practice of advertisers inserting their products in movies and television shows in order to build brand awareness and increase sales. The product placement market is projected to grow at a compound annual rate of 14.9% from 2004 to 2009, reaching an estimated $6.94 billion.
By tying licensing and merchandising opportunities directly into movies and TV shows, product placement blurs the line between entertainment and advertising. As a result, it is becoming increasingly difficult to distinguish commercial speech (i.e., speech that proposes a commercial transaction) from non-commercial speech (i.e., speech with artistic or political content).
Traditionally courts have extended greater protection to non-commercial speech, although restrictions on commercial speech may be invalidated if they unconstitutionally limit dissemination of information to the public. This article explores the legal implications of the increasingly intertwined relationship between advertising and entertainment.
To read the full article, go to:
http://www.marklitwak.com/downloads/ProductsAsStars.pdf
RISKY BUSINESS SEMINAR COMES TO DALLAS
Mark will be bringing his one day Risky Business seminar to Dallas on April 8 at Southern Methodist University.
Those who attend this comprehensive all day seminar will learn how independent films are financed and distributed. Topics include organizing your company, raising financing via pre-sales, debt and limited partnerships, negotiating tactics, principal terms of the acquisition/distribution agreement, cross-collateralization and creative accounting. Particular attention is paid to how producers and filmmakers can protect their interests by watering down warranties, getting added to the E& O policy, using lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses.
This seminar is being organized by Random Order Entertainment and is co-sponsored by the Dallas Producers Association, Indie Slate magazine, MLD Equipment, MPS Studios, Texas Association of Film/Tape Professionals (TAFTP) and Women in Film - Dallas.
The cost to attend the seminar is $99, $65 for students and $79 for DPA, TAFTP and WIF members. For more info go to: http://www.randomorder.net/
METHOD FEST FILM FESTIVAL
Congratulations to our clients whose films were selected for the upcoming Method Fest film festival. This year three clients have had their films selected to show at Method Fest.
The 8th annual The Method Fest independent film festival will take place March 31 - April 7 in Calabasas. The Method Fest is the only film festival in America that puts its focus on the actor. The Method Fest is a festival of discovery, seeking story-driven films showcasing breakout acting performances by emerging stars and career-defining roles by established actors.
Our clients’ films are:
Confess
USA, 87 MIN, WEST COAST PREMIERE
Director: Stefan Schaefer
Writer: Stefan Schaefer
Producer: Benjamin Odell, Jonathan Stern
Starring: Eugene Byrd, Ali Larter, Melissa Leo, Glenn Fitzgerald, William Sadler
CONFESS charts the exploits of disillusioned ex-hacker Terell Lessor (Eugene Byrd). Employing strategically placed spy-cams, he captures compromising footage of those who slighted him in the past, broadcasting edits via the internet. Recognizing the power of this model, and working in tandem with accomplice Olivia (Ali Larter), he targets CEOs, politicians, and members of the power elite. Soon Terell's every action is front-page news, law enforcement has labeled him a new breed of terrorist, and the movement he spawned is spiraling out of control.
11:59
USA, 104 MIN
Director: Jamin Winans
Writer: Jamin Winans
Producer: Joe Sekiya
Starring: Raymond Andrew Bailey, Laura Fuller, Megan Heffernan, Liz Cunningham, Chris Kelly, Hayz II, Rosa Vasquez
A jaded news photojournalist, Aaaron Dougherty, has just broken the national news story of the year. After suddenly waking up in a field in the middle of nowhere, with no recollection of the past 24 hours, Aaron is forced to reexamine his life before understanding the mysterious events of his lost time.
The Way Back Home
USA, 93 MIN,
Director: Reza Badiyi
Writer: Michael Houston King
Producer: Michael Houston King, Paul Sirmons
Starring: Michael Houston King, Julie Harris, Tessie Santiago, Ruby Dee, Danny Nucci, Deezer D, Amy Landers
Spencer Krane has it all, the great job, the model wife, the great NY lifestyle. But after the sudden death of his wife he returns to a small southern town to take care of his grandmother who has suffered a stroke. Over the course of a summer back home in this small Florida town he reevaluates his life and develops a sense of hope for his future.
The film schedule and additional information is available at: http://www.methodfest.com/
Monday, February 20, 2006
District Court Does Not Allow Punitive Damages for Copyright Infringement
Courts have expressed different views on whether punitive damages are available in copyright infringement actions.
One case concerned the band DADA whch released a single, “Here Today, Gone Tomorrow,” in 1992. Some years later, Sofa Express used an advertising jingle called “Here Today, Home Tomorrow.” The band sued Sofa Express for copyright infringement and requested punitive damages.
Two recent cases in the Southern District of New York allowed punitive damages to be awarded in copyright infringement cases if willful and malicious infringement is proven and if the copyright owner is barred from receiving statutory damages. However, the DADA case is notable because the Federal District Court refused to let the band collect punitive damages.
The Court based its ruling on the language of the Copyright Act which does not expressly mention punitive damages. Although the case conflicts with other cases decided in the Southern District, this court sided with the prevailing case law nationwide in interpreting the statutory language to not allow punitive damages. The Court did indicate that the Copyright Act does allow for increased statutory damages in case of willful infringement.
Calio v. Sofa Express, Inc. 368 F.Supp.2d 1290 (M.D.Fla., 2005).
Congratulations to our clients:
Producer Hal Schwartz whose film Crazy Love received nationwide distribution on the Lifetime Network on Valentine's day.
Craig Brewer, writer-director of Hustle & Flow, on his picture earning 2 Acadamy award nominations: Best Actor for Terrence Howard and Best Original Song for "It's Hard Out Here for a Pimp."
Filmmaker Sherman Lau whose feature Zooey will appear in Cinequest Film Festival on March 9 and 10. Zooey won a Viewer's Voice Award on the festival's Web site.
Filmmaker Jamin Winans whose feature motion picure "11:59" opens for a two week run in Denver at Starz FilmCenter at the Tivoli. The film is rated PG-13 and stars Raymond Andrew Bailey, Liz Cunningham, Laura Fuller and Chris Kelly. |
Mark to speak on the Use of Tax Incentives to Fund Movies on March 22, 2006
Mark will be speaking on a panel on the subjeect of "Funding Tinseltown, The Next Generation of Tax-Motivated Indie Financing" on March 22, 2006. The public forum is sponsored by the Entertainment, Media, Intellectual Property and Sports Law Section of New York County Lawyer's Association. It will be held at 14 Vesey Street in New York City.
For additional information: dlamb@nycla.org or call 212 267.6646.
One case concerned the band DADA whch released a single, “Here Today, Gone Tomorrow,” in 1992. Some years later, Sofa Express used an advertising jingle called “Here Today, Home Tomorrow.” The band sued Sofa Express for copyright infringement and requested punitive damages.
Two recent cases in the Southern District of New York allowed punitive damages to be awarded in copyright infringement cases if willful and malicious infringement is proven and if the copyright owner is barred from receiving statutory damages. However, the DADA case is notable because the Federal District Court refused to let the band collect punitive damages.
The Court based its ruling on the language of the Copyright Act which does not expressly mention punitive damages. Although the case conflicts with other cases decided in the Southern District, this court sided with the prevailing case law nationwide in interpreting the statutory language to not allow punitive damages. The Court did indicate that the Copyright Act does allow for increased statutory damages in case of willful infringement.
Calio v. Sofa Express, Inc. 368 F.Supp.2d 1290 (M.D.Fla., 2005).
Congratulations to our clients:
Producer Hal Schwartz whose film Crazy Love received nationwide distribution on the Lifetime Network on Valentine's day.
Craig Brewer, writer-director of Hustle & Flow, on his picture earning 2 Acadamy award nominations: Best Actor for Terrence Howard and Best Original Song for "It's Hard Out Here for a Pimp."
Filmmaker Sherman Lau whose feature Zooey will appear in Cinequest Film Festival on March 9 and 10. Zooey won a Viewer's Voice Award on the festival's Web site.
Filmmaker Jamin Winans whose feature motion picure "11:59" opens for a two week run in Denver at Starz FilmCenter at the Tivoli. The film is rated PG-13 and stars Raymond Andrew Bailey, Liz Cunningham, Laura Fuller and Chris Kelly. |
Mark to speak on the Use of Tax Incentives to Fund Movies on March 22, 2006
Mark will be speaking on a panel on the subjeect of "Funding Tinseltown, The Next Generation of Tax-Motivated Indie Financing" on March 22, 2006. The public forum is sponsored by the Entertainment, Media, Intellectual Property and Sports Law Section of New York County Lawyer's Association. It will be held at 14 Vesey Street in New York City.
For additional information: dlamb@nycla.org or call 212 267.6646.
Saturday, January 28, 2006
DeNadie Wins Sundance Audience Award
Congratulations to our client, Tin Dirdamal, whose film DeNadie won the World Cinema Documentary Audience Award at Sundance.
The film follows immigrants from South America as they traverse Mexico on a dangerous journey to try to reach the Promised Land, the United States. While there have been films that have explored the poor treatment and abuse of Mexican immigrants in the United States, this is the first film I have seen that has shown how immigrants from Honduras and Guatemala are robbed and beaten by both vicious Mexican gangs and the police.
Sundance programmer Joseph Beyer has said: “First-time filmmaker Tin Dirdamal displays moving photographic grace and sophisticated understanding of his subjects as he follows their search for the sustenance their native countries can't provide. These personal stories force deeper understanding of the United States' border crisis, while exposing hypocrisies in a Mexican culture faced with equally uncomfortable intolerance of its own. All this from a film that doesn't take political stances; it merely brings us the voices of those affected, the results of which are far louder.”
Read more about the film at: http://www.indiewire.com/people/2006/01/park_city_06_ti.html
Our website recommendations
Here are some great websites you may find useful
www.roboform.com which fills out forms for you for free and remembers your passwords. The free version of the program holds 30 passwords and allows multiple identities.
Reverse dictionary. http://www.onelook.com/reverse-dictionary.shtml also check out http://dictionary.reference.com/ A traditional on line dictionary.
A Prairie Home Companion. Listen to all the old shows on your computer: http://prairiehome.publicradio.org/programs/2005/03/
http://www.withoutabox.com/v2/filmmakers/#qa
SAG Indie: Read about the new low budget agreements for employing actors. http://www.sagindie.org/
The film follows immigrants from South America as they traverse Mexico on a dangerous journey to try to reach the Promised Land, the United States. While there have been films that have explored the poor treatment and abuse of Mexican immigrants in the United States, this is the first film I have seen that has shown how immigrants from Honduras and Guatemala are robbed and beaten by both vicious Mexican gangs and the police.
Sundance programmer Joseph Beyer has said: “First-time filmmaker Tin Dirdamal displays moving photographic grace and sophisticated understanding of his subjects as he follows their search for the sustenance their native countries can't provide. These personal stories force deeper understanding of the United States' border crisis, while exposing hypocrisies in a Mexican culture faced with equally uncomfortable intolerance of its own. All this from a film that doesn't take political stances; it merely brings us the voices of those affected, the results of which are far louder.”
Read more about the film at: http://www.indiewire.com/people/2006/01/park_city_06_ti.html
Our website recommendations
Here are some great websites you may find useful
www.roboform.com which fills out forms for you for free and remembers your passwords. The free version of the program holds 30 passwords and allows multiple identities.
Reverse dictionary. http://www.onelook.com/reverse-dictionary.shtml also check out http://dictionary.reference.com/ A traditional on line dictionary.
A Prairie Home Companion. Listen to all the old shows on your computer: http://prairiehome.publicradio.org/programs/2005/03/
http://www.withoutabox.com/v2/filmmakers/#qa
SAG Indie: Read about the new low budget agreements for employing actors. http://www.sagindie.org/
Thursday, January 19, 2006
Federal Court Affirms that National Geographic May Republish Works by Photographers Digitally without Consent
Federal Court of Appeals Affirms Ruling That National Geographic May Republish Works by Freelance Photographers and Journalists w Digital Formatithout Consent in Many freelance photographers and journalists contributed to the National Geographic Magazine over its history. Most did not specifically license the magazine to republish their work on a recent CD-ROM and DVD entitled “The Complete National Geographic: 108 Years of National Geographic Magazine.”The Federal District Court ruled in the magazine’s favor and the Court of Appeals affirmed the decision on copyright infringement claims filed by photographers and journalists.
The Court of Appeals concluded that the digital versions were a privileged “revision” of the works published in the printed magazines. The Copyright Act allows publishers of collective works a privilege to republish any contributions to the collective work as part of a revision of the collective work. The Court gave two reasons why it considered the revision privileged in this case. First, the Court pointed out that “the original context of the magazine is omnipresent” in the digital versions. Second, the digital versions consist of an “almost” identical presentation of the original magazines. An unprivileged revision, on the other hand, “precludes the reader from viewing the underlying works in their original context.”
The Court ruled against the journalists and photographers on their contractual claim. Though the contracts did not specifically authorize the republishing of the work, the Court concluded that the journalists and photographers had an affirmative obligation to specify in the contracts that their work not be republished in digital format, if that is what they sought.
Faulkner v. National Geographic Society, 409 F.3d.S 26, 2005 U.S.App.LEXIS 3642 (2nd Cir. 2005).
Hustle & Flow Nominated For Numerous Awards And Now Released on DVD
Congratulations to our client writer/director Craig Brewer on the DVD release of his award winning film Hustle & Flow. After earning more than 22 million at the box office, 600,000 copies flew off the shelves in the first week of its home video release, exceeding all expectations.
Actor Terrence Howard received a Golden Globe nomination for Best Performance, a nomination for the Breakthrough Award at the Gotham Awards, and Best Male lead for the Independent Spirit Awards. The cast was honored with a nomination for Outstanding Performance by a Cast at the SAG awards, and the film won the Audience Award at last year’s Sundance Film Festival.
Perhaps most impressive, Ain’t It Cool News Harry Knowles named Hustle and Flow as simply the Best Film of the Year. Ain't It Cool News: http://www.aintitcool.com/display.cgi?id=22103
MGM and Universal Find Out That They Must Comply with Every Detail of the Red Tape Associated with Filing Satellite and Cable TV Royalty Claims with the U.S. Copyright Office
MGM and Universal Studios lost a copyright suit over some stamps.
U.S. Copyright regulations require that cable and satellite TV royalty claims be filed each year in the month of July. Claims can be filed so that they are delivered by July 31st or they can be postmarked during July. However, the regulations specifically provide that postage meter machine postmarks are not sufficient to establish a claim. MGM and Universal sent their claims out on July 30 using a Pitney-Bowes postage machine. The Copyright office received the claims on August 2nd or 3rd and refused to accept them.
The studios went to court. MGM and Universal submitted uncontested affidavits from employees and the U.S. Postal Service itself in order to establish that the claims had been mailed in July. The Postal Service even confirmed that if the mail arrived by August 2nd or 3rd it had to have been mailed in July. Finally, affidavits (also uncontested) were submitted showing that there is no possible way for the postage meter machines to print a backdated postmark.
MGM and Universal argued that the rejection of the claims violated the Copyright Act, the Administrative Procedure Act and denied them their Constitutional right to due process. The District Court dismissed the case and the Court of Appeals affirmed. The Court of Appeals ruled that the Copyright Office had not misinterpreted its rule, due process had not been denied and the refusal to waive the requirement was not arbitrary nor capricious.
Universal City Studios v. Peters, 402 F.3d 1238, 2005 U.S.App.LEXIS 5664 (D.C.Cir. 2005).
The Court of Appeals concluded that the digital versions were a privileged “revision” of the works published in the printed magazines. The Copyright Act allows publishers of collective works a privilege to republish any contributions to the collective work as part of a revision of the collective work. The Court gave two reasons why it considered the revision privileged in this case. First, the Court pointed out that “the original context of the magazine is omnipresent” in the digital versions. Second, the digital versions consist of an “almost” identical presentation of the original magazines. An unprivileged revision, on the other hand, “precludes the reader from viewing the underlying works in their original context.”
The Court ruled against the journalists and photographers on their contractual claim. Though the contracts did not specifically authorize the republishing of the work, the Court concluded that the journalists and photographers had an affirmative obligation to specify in the contracts that their work not be republished in digital format, if that is what they sought.
Faulkner v. National Geographic Society, 409 F.3d.S 26, 2005 U.S.App.LEXIS 3642 (2nd Cir. 2005).
Hustle & Flow Nominated For Numerous Awards And Now Released on DVD
Congratulations to our client writer/director Craig Brewer on the DVD release of his award winning film Hustle & Flow. After earning more than 22 million at the box office, 600,000 copies flew off the shelves in the first week of its home video release, exceeding all expectations.
Actor Terrence Howard received a Golden Globe nomination for Best Performance, a nomination for the Breakthrough Award at the Gotham Awards, and Best Male lead for the Independent Spirit Awards. The cast was honored with a nomination for Outstanding Performance by a Cast at the SAG awards, and the film won the Audience Award at last year’s Sundance Film Festival.
Perhaps most impressive, Ain’t It Cool News Harry Knowles named Hustle and Flow as simply the Best Film of the Year. Ain't It Cool News: http://www.aintitcool.com/display.cgi?id=22103
MGM and Universal Find Out That They Must Comply with Every Detail of the Red Tape Associated with Filing Satellite and Cable TV Royalty Claims with the U.S. Copyright Office
MGM and Universal Studios lost a copyright suit over some stamps.
U.S. Copyright regulations require that cable and satellite TV royalty claims be filed each year in the month of July. Claims can be filed so that they are delivered by July 31st or they can be postmarked during July. However, the regulations specifically provide that postage meter machine postmarks are not sufficient to establish a claim. MGM and Universal sent their claims out on July 30 using a Pitney-Bowes postage machine. The Copyright office received the claims on August 2nd or 3rd and refused to accept them.
The studios went to court. MGM and Universal submitted uncontested affidavits from employees and the U.S. Postal Service itself in order to establish that the claims had been mailed in July. The Postal Service even confirmed that if the mail arrived by August 2nd or 3rd it had to have been mailed in July. Finally, affidavits (also uncontested) were submitted showing that there is no possible way for the postage meter machines to print a backdated postmark.
MGM and Universal argued that the rejection of the claims violated the Copyright Act, the Administrative Procedure Act and denied them their Constitutional right to due process. The District Court dismissed the case and the Court of Appeals affirmed. The Court of Appeals ruled that the Copyright Office had not misinterpreted its rule, due process had not been denied and the refusal to waive the requirement was not arbitrary nor capricious.
Universal City Studios v. Peters, 402 F.3d 1238, 2005 U.S.App.LEXIS 5664 (D.C.Cir. 2005).
Friday, December 30, 2005
Documentary Filmmakers Adopt Position on Fair Use
A broad coalition of groups influential in documentary filmmaking have come together to issue a joint statement as to what they consider acceptable practices when applying the Fair Use Doctrine to documentary films.
The Statement was authored by the Association of Independent Video and Filmmakers; Independent Feature Project; International Documentary Association; National Alliance for Media Arts and Culture; and Women in Film and Video (Washington, D.C., chapter).
This important Statement will likely be considered by courts in resolving fair use disputes. It can be downloaded for free from the Center for Social Media http://www.centerforsocialmedia.org/fairuse.htm
Many writers and filmmakers are confused about the fair use doctrine and whether they need permission to borrow from copyrighted works. Documentary filmmakers are often uncertain whether they can borrow, and how much they can borrow, to incorporate in their film without a license. Obviously, a filmmaker preparing an expose or even taking a critical look at a subject cannot expect the subject to grant them a license. Robert Greenwald is not going to get, nor did he even bother to ask, for permission from the Fox Network for inclusion of their television footage in his film “Outfoxed: Rupert Murdoch’s War on Journalism.”
If the fair use doctrine applies, no license is needed to borrow from a copyrighted work. It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship. Such uses include fair comment and criticism, parody, news reporting, teaching, scholarship and research. Thus, a movie or literary critic does not need permission to include a small quote from a work being reviewed. It is sometimes said of writers that if you borrow extensively from one author’s work, you are a thief; but if you borrow from hundreds, you are a scholar. Of course, the scholar adds value by synthesizing information from prior works and creating something new.
The Statement addresses common situations faced by filmmakers such as when can they quote works of popular culture without permission, and when will an incidental use of background music or visuals on a television set be considered a fair use.
In determining whether the use of a copyrighted work is fair use, courts weigh four factors:
1) The purpose and character of the work: A non-profit educational use is more likely to be considered a fair use than a commercial use. A commercial use is one that earns a profit.
2) The nature of the copyrighted work: There is greater public interest in allowing borrowing for scientific, biographical and historical works than for entertainment works.
3) The amount and substantiality of the portion borrowed in relation to copyrighted work as a whole: Taking one sentence from a five hundred page book is more likely to be considered a fair use than taking a sentence from a ten line poem.
4) The potential adverse effect on the market for, and value of, the copyrighted work: If borrowing from the copyrighted work harms the market for it, the use is less likely to be considered a fair use. Borrowing a sentence from a novel and incorporating it in another, completely different kind of work, such as a scholarly work, is unlikely to have any effect on sales of the novel. Likewise, borrowing from a book that is out of print is not likely to have an adverse impact on its sales.
In applying these factors to a specific factual situation, it can often be difficult to predict whether a use will fall within the doctrine. Generally speaking, a greater amount of material may be borrowed from non-fiction works than from fictional works. Clearly, a writer can borrow histori¬cal facts from a previous work without infringing upon the first author’s copyright, because of both the fair use doctrine and because historical facts are not copyrightable. Moreover, since factual works, unlike works of fiction, may be capable of being expressed in relatively few ways, only verbatim reproduction or close paraphrasing will be an infringement.
Writers should be more cautious in borrowing from novels and other fictional works. In one case, the author of the book “Welcome to Twin Peaks: A Complete Guide to Who’s Who and What’s What,” was found to have infringed the television series “Twin Peaks.” The book contained detailed plot summaries and extensive direct quotations of at least eighty-nine lines of dialogue.
One encounters a lot of grey areas in applying the fair use doctrine. It is safe to say that a schoolteacher will be protected if she photocopies a Newsweek article and distributes it to her class on one occasion. If the schoolteacher, however, photocopies an entire textbook and distributes it to her students in order to save them the expense of purchasing their own texts, this would not be a fair use. But there are many factual situations that lie between these two extremes; and in those cases it can be difficult to predict whether the fair use doctrine will be a good defense.
The Statement was authored by the Association of Independent Video and Filmmakers; Independent Feature Project; International Documentary Association; National Alliance for Media Arts and Culture; and Women in Film and Video (Washington, D.C., chapter).
This important Statement will likely be considered by courts in resolving fair use disputes. It can be downloaded for free from the Center for Social Media http://www.centerforsocialmedia.org/fairuse.htm
Many writers and filmmakers are confused about the fair use doctrine and whether they need permission to borrow from copyrighted works. Documentary filmmakers are often uncertain whether they can borrow, and how much they can borrow, to incorporate in their film without a license. Obviously, a filmmaker preparing an expose or even taking a critical look at a subject cannot expect the subject to grant them a license. Robert Greenwald is not going to get, nor did he even bother to ask, for permission from the Fox Network for inclusion of their television footage in his film “Outfoxed: Rupert Murdoch’s War on Journalism.”
If the fair use doctrine applies, no license is needed to borrow from a copyrighted work. It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship. Such uses include fair comment and criticism, parody, news reporting, teaching, scholarship and research. Thus, a movie or literary critic does not need permission to include a small quote from a work being reviewed. It is sometimes said of writers that if you borrow extensively from one author’s work, you are a thief; but if you borrow from hundreds, you are a scholar. Of course, the scholar adds value by synthesizing information from prior works and creating something new.
The Statement addresses common situations faced by filmmakers such as when can they quote works of popular culture without permission, and when will an incidental use of background music or visuals on a television set be considered a fair use.
In determining whether the use of a copyrighted work is fair use, courts weigh four factors:
1) The purpose and character of the work: A non-profit educational use is more likely to be considered a fair use than a commercial use. A commercial use is one that earns a profit.
2) The nature of the copyrighted work: There is greater public interest in allowing borrowing for scientific, biographical and historical works than for entertainment works.
3) The amount and substantiality of the portion borrowed in relation to copyrighted work as a whole: Taking one sentence from a five hundred page book is more likely to be considered a fair use than taking a sentence from a ten line poem.
4) The potential adverse effect on the market for, and value of, the copyrighted work: If borrowing from the copyrighted work harms the market for it, the use is less likely to be considered a fair use. Borrowing a sentence from a novel and incorporating it in another, completely different kind of work, such as a scholarly work, is unlikely to have any effect on sales of the novel. Likewise, borrowing from a book that is out of print is not likely to have an adverse impact on its sales.
In applying these factors to a specific factual situation, it can often be difficult to predict whether a use will fall within the doctrine. Generally speaking, a greater amount of material may be borrowed from non-fiction works than from fictional works. Clearly, a writer can borrow histori¬cal facts from a previous work without infringing upon the first author’s copyright, because of both the fair use doctrine and because historical facts are not copyrightable. Moreover, since factual works, unlike works of fiction, may be capable of being expressed in relatively few ways, only verbatim reproduction or close paraphrasing will be an infringement.
Writers should be more cautious in borrowing from novels and other fictional works. In one case, the author of the book “Welcome to Twin Peaks: A Complete Guide to Who’s Who and What’s What,” was found to have infringed the television series “Twin Peaks.” The book contained detailed plot summaries and extensive direct quotations of at least eighty-nine lines of dialogue.
One encounters a lot of grey areas in applying the fair use doctrine. It is safe to say that a schoolteacher will be protected if she photocopies a Newsweek article and distributes it to her class on one occasion. If the schoolteacher, however, photocopies an entire textbook and distributes it to her students in order to save them the expense of purchasing their own texts, this would not be a fair use. But there are many factual situations that lie between these two extremes; and in those cases it can be difficult to predict whether the fair use doctrine will be a good defense.
Saturday, December 17, 2005
The Matador Opens December 23
The Matador starring Pierce Brosnan, Greg Kinnear and Hope Davis premieres in New York and Los Angeles on December 23. Written and Directed by our client Richard Shepard, the film was acquired at last year's Sundance Film Festival by Miramax.
The film will be released in other cities in January.
The Matador website: http://www.miramax.com/matador/
Tactics and Strategy in Negotiating the Distribution Deal
By Mark Litwak
Attorney At Law
Many independent filmmakers are surprised at the amount of effort and skill required to secure an equitable distribution agreement. With the dramatic increase in independent production, it is apparent that many filmmakers have mastered the skills needed to secure the money and equipment needed to produce a film. The major obstacle facing many filmmakers is how to secure distribution for their motion picture.
This article explores the tactics and strategies that can be used to obtain a favorable distribution deal for the indie filmmaker.
In negotiating the distribution deal, the relative bargaining power of the parties is determined by the perceived desirability of the film and how much risk each party is willing to take. With a major studio project, the studio has often borne most, if not all, the financial risk. Typically, the studio pays for development, production and distribution. The director/producer is employed by the studio, receives a fee for his services, and may be entitled to a small share of net profits. "Net Profits," however, are defined so that there is little likelihood the employee will ever realize anything from this "back-end" compensation.
On the other hand, when a film is developed and produced by an independent Filmmaker, as an entrepreneur the filmmaker bears the risk of failure. Often the distributor will not have any involvement in the development of the script, or the production of the film. Since the distributor screens a completed work before deciding whether to acquire it, the distributor assumes less risk. The distributor knows exactly what it is obtaining. Consequently, if the Filmmaker has skillfully made a script into an appealing film, the filmmaker may be able to obtain a better deal. Under such a film acquisition agreement, the distributor may agree to share revenue according to a formula that will actually generate monies on the back end, assuming the distributor accounts fairly. If the filmmaker stumbles and creates a film with little appeal, however, no distributor may acquire it, and the loss will be borne entirely by the filmmaker and his investors.
INCREASING YOUR LEVERAGE
When a distributor negotiates to acquire film rights, the distributor often has more clout than the filmmaker. This is a vulnerable position for the filmmaker. The filmmaker, or his representative, must know how to orchestrate the release of the film into the marketplace to achieve maximum leverage. This may entail generating competition through positive word of mouth within the industry. Such "buzz" or "heat" can be encouraged by filmmakers who work the festival circuit and mount a campaign on behalf of their film.
From the filmmaker's point of view, one will obtain a better deal if there is more than one distributor competing for the film. It is not difficult to alert acquisition executives to the existence of a film. Once a start date has been announced, filmmakers begin receiving calls. Acquisition executives track the progress of each film so that they can try to view it as soon as it is completed, and before their competitors see it.
To ensure that acquisition executives are aware of a film, one can send a press release announcing the project to the trade papers and magazines (Hollywood Reporter: (213) 525-2000, Daily Variety: (213) 857-6600, FILM MAKER: 213-932-6060, Moviemaker: 310-234-9234, The Independent: 212-807-1400). These publications will include your film in their listings of motion pictures in development, pre-production and production. Likewise, one should alert Film Finders at (310) 657-6397, a company that tracks films for many distributors.
Here are some other ways to create competition and maximize your leverage:
1) NO SNEAK PREVIEWS: Do not show your film to distributors until it is complete. Executives may ask to view a rough cut. They will assure the filmmaker, "Do not worry. We are professionals, we can extrapolate and envision what the film will look like with sound and titles." Do not believe them. Most people cannot extrapolate. They will view an unfinished film and think it amateurish. First impressions last. The community of acquisition executives is small, and they frequently mingle at screenings and festivals where they compare notes. One acquisition executive bad-mouthing your film, can cause a lot of damage.
The only reason to show an unfinished is if one is desperate to raise funds to complete it. The terms one can secure under these circumstances will be less advantageous than what could obtain for a finished film. If you must show a work-in-progress, exhibit it on a Moviola or flatbed editing table. People have lower expectations watching a film on an editing console than when it is projected in a theater. If you must send out cassettes of an unfinished film, prominently label it so that your viewers are reminded that they are seeing a work-in-progress.
2) SCREEN IT BEFORE A CROWD: It is usually better to invite executives to a screening than to send them a videocassette. If you send a tape to a busy executive, he will pop it in his VCR. Ten minutes later the phone rings and he hits the pause button. Then he watches another ten minutes until his secretary interrupts. After numerous distractions, he passes on the film because it is "too choppy."
You want the executive to view the film in a dark room, away from distractions, surrounded by a live audience enjoying the film. You can rent a screening room at Paramount or other convenient locations, invite all the acquisition executives you can, and pack the rest of the theater with friends and relatives.
Perhaps the best venue to exhibit a picture is at an important film festival. If the film is warmly received, your bargaining position will be enhanced. Another benefit of a festival showing is that it may generate positive reviews. Most publications have a policy of only reviewing films about to be released theatrically. Films seeking distribution are not reviewed. But trade papers and selected publications review films exhibited at major festivals. A positive review can influence distributors.
When you prepare an invitation list, include only those distributors appropriate for the film. If foreign rights are taken, there is no reason to invite foreign sales companies. You are being inconsiderate by wasting their time. Likewise, do not invite an art house distributor to view a beach blanket bingo movie. As soon as the acquisition executive realizes that your film is not for him, he will depart. Do you think a stream of people leaving might adversely affect the perceptions of the rest of the audience?
3) MAKE THE BUYERS COMPETE AGAINST EACH OTHER: Screen the film at the same time for all distributors. Some executives will attempt to get an early look -- that is their job. The filmmaker's goal is to keep potential distributors intrigued. You can promise to let each see it "as soon as it is finished." They may be annoyed to see their competitors at the first screening. But this will get their competitive juices flowing.
Some diplomacy is required to orchestrate a bidding war and not alienate the bidders. You want to firmly push each potential buyer to offer their best terms while maintaining cordial relations with all. Remember, you may want to produce your next project with one of the losers.
4) DO NOT GIVE AWAY YOUR FESTIVAL PREMIER LIGHTLY: Carefully plan a festival strategy. I have seen filmmakers give away their premier to minor festivals and thereby disqualify themselves from participating in major ones. You can participate in lesser festivals later. There is little reason not to apply to a festival if you think you have a chance to participate. If you are not accepted, the buyers will not know unless you tell them.
5) SELL YOUR FILM WHEN BUYERS ARE HUNGRY FOR PRODUCT: Distributors that acquire films for foreign distribution plan their activities around a market calendar. The major film markets are 1) AFM in the fall, 2) Berlin in February, and 3) Cannes in May in Cannes, France. In addition there are a number of important television markets including NATPE in the U.S., and MIP and MIP-COM in France.
Distributors are hungriest for product before a rapidly approaching market when they do not have enough new inventory. A distributor may spend $90,000 or more to attend Cannes, and if it appears the company will have nothing new to sell, panic sets in.. This is the best time to approach a distributor. Do not wait until a week before a market, however, because you need to give distributors enough time to prepare for it. They may need to create a trailer, one-sheet, poster, screeners and advertising. The bumper editions of the trade papers have an ad deadline that is 3-4 weeks before a market. These expanded editions contain product listings by distributor, as well as extensive advertising. The best time to approach distributors is 60-90 days before a market. Assuming a distributor wants your film, it may take a month or more to negotiate the deal.
PROTECTING YOUR INTERESTS
Investigate the Distributor
Always check the track record and experience of potential distributors. Industry insiders know the reputations of executives and their companies. It is newcomers who are most likely to be taken advantage of.
Ask a prospective distributor to send you their press kit. It will likely contain one-sheets from the films they have distributed. Examine the credits. Track down the filmmakers. If you cannot find them, simply ask the distributor for a list of all the filmmakers they have done business with over the past two years. Call the filmmakers. Ask them specific questions: Did they receive timely producer reports? Have they been paid what they are due? Did the distributor spend the promotional dollars promised?
I have established the Filmmaker's Clearinghouse on my website (www.marklitwak.com). The Clearinghouse provides filmmakers with information on distributors similar to what the Better Business Bureau reports on merchants.
PRINCIPAL TERMS OF A DISTRIBUTION AGREEMENT
Territory
The territory is the country or region where the distributor may exploit the film. Worldwide rights mean that the distributor has the right to distribute the film in any country in the world. Some distributors go further and seek rights throughout the "Universe." To my knowledge, no sales have been made to moviegoers on other planets. I once kidded a distribution executive that it was silly to ask for such rights. He conceded that it was unlikely his company would ever need rights beyond Earth. Several weeks later, however, he showed me a fax he had received from NASA asking for permission to exhibit one of his films on the Space Shuttle.
Independent filmmakers frequently enter into more than one distribution deal.
Rights are typically divided into two territories: Domestic and Foreign. Domestic is the United States and English-speaking Canada. Sometimes it may include all of Canada. It may include U.S. territories, possession's & military bases. Foreign rights are usually defined as the rest of the world.
As a general rule, filmmakers should only grant a distributor rights to territories they directly service. Few distributors, other than major studios, serve both the foreign and domestic market. Even the majors use sub distributors in smaller territories. Nevertheless, distributors often try to acquire as much territory and media as they can. They will lay off rights on sub distributors, and take a fee for serving as the middle man.
Most companies that distribute domestically do not participate in international film markets. If you grant such a distributor worldwide rights, they will make a deal with a foreign distributor to handle international sales. This foreign sales company will deduct a distribution fee for its services, and from the remaining amount, the domestic distributor may take a fee as well.
This is not to say that you should never allow a distributor to use sub-distributors. But one needs to understand the kind of distributor you are dealing with, and how it plans to exploit your film. Filmmakers should always determine which media and territories a distributor handles itself, and which it lays off on other companies. Labels can be confusing. Some distributors who sell films internationally call themselves "foreign sales agents." Others prefer to be known as "international distributors." The problem of double-distribution fees can be ameliorated by placing caps on the total fees the distributor and sub-distributors may take.
Most indie filmmakers contract with a foreign sales agent, or international distributor, to take their film to the major international markets. The filmmaker will also contract with one or more domestic companies. If the film does not have any name-actors in the cast, the filmmaker may not be able to obtain a domestic theatrical release. In such a situation, the filmmaker will contract with companies that serve the television and home video markets. Care must be taken in structuring these deals so that their terms do not conflict.
Filmmakers may benefit by contracting with more than one distributor. First, the filmmaker is not putting all his eggs in one basket. If he has one distributor, and it goes bankrupt, all potential revenue is affected. Second, by using different distributors, expenses in one territory will not be cross-collateralized against revenues from another.
When expenses are cross-collateralized, expenses and revenue from different territories are pooled. For example, suppose a film generates revenue of one million dollars abroad. The distributor has incurred $100,000 in recoupable expenses. The distributor is entitled to retain 20% of gross revenues, or $200,000, as a distribution fee. The remaining $700,000 is the filmmaker's share of revenue.
But suppose that in the domestic territory, this film generated 1 million dollars in revenue, and incurred expenses and distribution fees of $1.5 million. So on the domestic side of the ledger, the distributor has a net loss. If the filmmaker has a single distributor for foreign and domestic territories, the distributor can recoup its $500,000 domestic loss from the foreign profit.
Not only can expenses from one territory be crossed against others, but expenses in one media can be crossed against revenues from another. In many instances, a distributor will lose money on a picture's theatrical release and will want to recoup those losses from revenue generated from home video and television.
The remainder of this articles is posted on the Entertainment Law Resources website: www.marklitwak.com
Full Article: http://www.marklitwak.com/articles/film/indie_filmmaker.html
The film will be released in other cities in January.
The Matador website: http://www.miramax.com/matador/
Tactics and Strategy in Negotiating the Distribution Deal
By Mark Litwak
Attorney At Law
Many independent filmmakers are surprised at the amount of effort and skill required to secure an equitable distribution agreement. With the dramatic increase in independent production, it is apparent that many filmmakers have mastered the skills needed to secure the money and equipment needed to produce a film. The major obstacle facing many filmmakers is how to secure distribution for their motion picture.
This article explores the tactics and strategies that can be used to obtain a favorable distribution deal for the indie filmmaker.
In negotiating the distribution deal, the relative bargaining power of the parties is determined by the perceived desirability of the film and how much risk each party is willing to take. With a major studio project, the studio has often borne most, if not all, the financial risk. Typically, the studio pays for development, production and distribution. The director/producer is employed by the studio, receives a fee for his services, and may be entitled to a small share of net profits. "Net Profits," however, are defined so that there is little likelihood the employee will ever realize anything from this "back-end" compensation.
On the other hand, when a film is developed and produced by an independent Filmmaker, as an entrepreneur the filmmaker bears the risk of failure. Often the distributor will not have any involvement in the development of the script, or the production of the film. Since the distributor screens a completed work before deciding whether to acquire it, the distributor assumes less risk. The distributor knows exactly what it is obtaining. Consequently, if the Filmmaker has skillfully made a script into an appealing film, the filmmaker may be able to obtain a better deal. Under such a film acquisition agreement, the distributor may agree to share revenue according to a formula that will actually generate monies on the back end, assuming the distributor accounts fairly. If the filmmaker stumbles and creates a film with little appeal, however, no distributor may acquire it, and the loss will be borne entirely by the filmmaker and his investors.
INCREASING YOUR LEVERAGE
When a distributor negotiates to acquire film rights, the distributor often has more clout than the filmmaker. This is a vulnerable position for the filmmaker. The filmmaker, or his representative, must know how to orchestrate the release of the film into the marketplace to achieve maximum leverage. This may entail generating competition through positive word of mouth within the industry. Such "buzz" or "heat" can be encouraged by filmmakers who work the festival circuit and mount a campaign on behalf of their film.
From the filmmaker's point of view, one will obtain a better deal if there is more than one distributor competing for the film. It is not difficult to alert acquisition executives to the existence of a film. Once a start date has been announced, filmmakers begin receiving calls. Acquisition executives track the progress of each film so that they can try to view it as soon as it is completed, and before their competitors see it.
To ensure that acquisition executives are aware of a film, one can send a press release announcing the project to the trade papers and magazines (Hollywood Reporter: (213) 525-2000, Daily Variety: (213) 857-6600, FILM MAKER: 213-932-6060, Moviemaker: 310-234-9234, The Independent: 212-807-1400). These publications will include your film in their listings of motion pictures in development, pre-production and production. Likewise, one should alert Film Finders at (310) 657-6397, a company that tracks films for many distributors.
Here are some other ways to create competition and maximize your leverage:
1) NO SNEAK PREVIEWS: Do not show your film to distributors until it is complete. Executives may ask to view a rough cut. They will assure the filmmaker, "Do not worry. We are professionals, we can extrapolate and envision what the film will look like with sound and titles." Do not believe them. Most people cannot extrapolate. They will view an unfinished film and think it amateurish. First impressions last. The community of acquisition executives is small, and they frequently mingle at screenings and festivals where they compare notes. One acquisition executive bad-mouthing your film, can cause a lot of damage.
The only reason to show an unfinished is if one is desperate to raise funds to complete it. The terms one can secure under these circumstances will be less advantageous than what could obtain for a finished film. If you must show a work-in-progress, exhibit it on a Moviola or flatbed editing table. People have lower expectations watching a film on an editing console than when it is projected in a theater. If you must send out cassettes of an unfinished film, prominently label it so that your viewers are reminded that they are seeing a work-in-progress.
2) SCREEN IT BEFORE A CROWD: It is usually better to invite executives to a screening than to send them a videocassette. If you send a tape to a busy executive, he will pop it in his VCR. Ten minutes later the phone rings and he hits the pause button. Then he watches another ten minutes until his secretary interrupts. After numerous distractions, he passes on the film because it is "too choppy."
You want the executive to view the film in a dark room, away from distractions, surrounded by a live audience enjoying the film. You can rent a screening room at Paramount or other convenient locations, invite all the acquisition executives you can, and pack the rest of the theater with friends and relatives.
Perhaps the best venue to exhibit a picture is at an important film festival. If the film is warmly received, your bargaining position will be enhanced. Another benefit of a festival showing is that it may generate positive reviews. Most publications have a policy of only reviewing films about to be released theatrically. Films seeking distribution are not reviewed. But trade papers and selected publications review films exhibited at major festivals. A positive review can influence distributors.
When you prepare an invitation list, include only those distributors appropriate for the film. If foreign rights are taken, there is no reason to invite foreign sales companies. You are being inconsiderate by wasting their time. Likewise, do not invite an art house distributor to view a beach blanket bingo movie. As soon as the acquisition executive realizes that your film is not for him, he will depart. Do you think a stream of people leaving might adversely affect the perceptions of the rest of the audience?
3) MAKE THE BUYERS COMPETE AGAINST EACH OTHER: Screen the film at the same time for all distributors. Some executives will attempt to get an early look -- that is their job. The filmmaker's goal is to keep potential distributors intrigued. You can promise to let each see it "as soon as it is finished." They may be annoyed to see their competitors at the first screening. But this will get their competitive juices flowing.
Some diplomacy is required to orchestrate a bidding war and not alienate the bidders. You want to firmly push each potential buyer to offer their best terms while maintaining cordial relations with all. Remember, you may want to produce your next project with one of the losers.
4) DO NOT GIVE AWAY YOUR FESTIVAL PREMIER LIGHTLY: Carefully plan a festival strategy. I have seen filmmakers give away their premier to minor festivals and thereby disqualify themselves from participating in major ones. You can participate in lesser festivals later. There is little reason not to apply to a festival if you think you have a chance to participate. If you are not accepted, the buyers will not know unless you tell them.
5) SELL YOUR FILM WHEN BUYERS ARE HUNGRY FOR PRODUCT: Distributors that acquire films for foreign distribution plan their activities around a market calendar. The major film markets are 1) AFM in the fall, 2) Berlin in February, and 3) Cannes in May in Cannes, France. In addition there are a number of important television markets including NATPE in the U.S., and MIP and MIP-COM in France.
Distributors are hungriest for product before a rapidly approaching market when they do not have enough new inventory. A distributor may spend $90,000 or more to attend Cannes, and if it appears the company will have nothing new to sell, panic sets in.. This is the best time to approach a distributor. Do not wait until a week before a market, however, because you need to give distributors enough time to prepare for it. They may need to create a trailer, one-sheet, poster, screeners and advertising. The bumper editions of the trade papers have an ad deadline that is 3-4 weeks before a market. These expanded editions contain product listings by distributor, as well as extensive advertising. The best time to approach distributors is 60-90 days before a market. Assuming a distributor wants your film, it may take a month or more to negotiate the deal.
PROTECTING YOUR INTERESTS
Investigate the Distributor
Always check the track record and experience of potential distributors. Industry insiders know the reputations of executives and their companies. It is newcomers who are most likely to be taken advantage of.
Ask a prospective distributor to send you their press kit. It will likely contain one-sheets from the films they have distributed. Examine the credits. Track down the filmmakers. If you cannot find them, simply ask the distributor for a list of all the filmmakers they have done business with over the past two years. Call the filmmakers. Ask them specific questions: Did they receive timely producer reports? Have they been paid what they are due? Did the distributor spend the promotional dollars promised?
I have established the Filmmaker's Clearinghouse on my website (www.marklitwak.com). The Clearinghouse provides filmmakers with information on distributors similar to what the Better Business Bureau reports on merchants.
PRINCIPAL TERMS OF A DISTRIBUTION AGREEMENT
Territory
The territory is the country or region where the distributor may exploit the film. Worldwide rights mean that the distributor has the right to distribute the film in any country in the world. Some distributors go further and seek rights throughout the "Universe." To my knowledge, no sales have been made to moviegoers on other planets. I once kidded a distribution executive that it was silly to ask for such rights. He conceded that it was unlikely his company would ever need rights beyond Earth. Several weeks later, however, he showed me a fax he had received from NASA asking for permission to exhibit one of his films on the Space Shuttle.
Independent filmmakers frequently enter into more than one distribution deal.
Rights are typically divided into two territories: Domestic and Foreign. Domestic is the United States and English-speaking Canada. Sometimes it may include all of Canada. It may include U.S. territories, possession's & military bases. Foreign rights are usually defined as the rest of the world.
As a general rule, filmmakers should only grant a distributor rights to territories they directly service. Few distributors, other than major studios, serve both the foreign and domestic market. Even the majors use sub distributors in smaller territories. Nevertheless, distributors often try to acquire as much territory and media as they can. They will lay off rights on sub distributors, and take a fee for serving as the middle man.
Most companies that distribute domestically do not participate in international film markets. If you grant such a distributor worldwide rights, they will make a deal with a foreign distributor to handle international sales. This foreign sales company will deduct a distribution fee for its services, and from the remaining amount, the domestic distributor may take a fee as well.
This is not to say that you should never allow a distributor to use sub-distributors. But one needs to understand the kind of distributor you are dealing with, and how it plans to exploit your film. Filmmakers should always determine which media and territories a distributor handles itself, and which it lays off on other companies. Labels can be confusing. Some distributors who sell films internationally call themselves "foreign sales agents." Others prefer to be known as "international distributors." The problem of double-distribution fees can be ameliorated by placing caps on the total fees the distributor and sub-distributors may take.
Most indie filmmakers contract with a foreign sales agent, or international distributor, to take their film to the major international markets. The filmmaker will also contract with one or more domestic companies. If the film does not have any name-actors in the cast, the filmmaker may not be able to obtain a domestic theatrical release. In such a situation, the filmmaker will contract with companies that serve the television and home video markets. Care must be taken in structuring these deals so that their terms do not conflict.
Filmmakers may benefit by contracting with more than one distributor. First, the filmmaker is not putting all his eggs in one basket. If he has one distributor, and it goes bankrupt, all potential revenue is affected. Second, by using different distributors, expenses in one territory will not be cross-collateralized against revenues from another.
When expenses are cross-collateralized, expenses and revenue from different territories are pooled. For example, suppose a film generates revenue of one million dollars abroad. The distributor has incurred $100,000 in recoupable expenses. The distributor is entitled to retain 20% of gross revenues, or $200,000, as a distribution fee. The remaining $700,000 is the filmmaker's share of revenue.
But suppose that in the domestic territory, this film generated 1 million dollars in revenue, and incurred expenses and distribution fees of $1.5 million. So on the domestic side of the ledger, the distributor has a net loss. If the filmmaker has a single distributor for foreign and domestic territories, the distributor can recoup its $500,000 domestic loss from the foreign profit.
Not only can expenses from one territory be crossed against others, but expenses in one media can be crossed against revenues from another. In many instances, a distributor will lose money on a picture's theatrical release and will want to recoup those losses from revenue generated from home video and television.
The remainder of this articles is posted on the Entertainment Law Resources website: www.marklitwak.com
Full Article: http://www.marklitwak.com/articles/film/indie_filmmaker.html
Wednesday, November 30, 2005
“Survivor” Survives Trademark Infringement Suit Brought by Beach-Themed Product Creator
The company behind Surfvivor, a trademark for beach-themed products, sued the creators of the reality television show “Survivor” for trademark infringement. Despite the confusion reported by Surfvivor that some entities had in the marketplace, the Federal District Court granted summary judgment in favor of “Survivor” and dismissed the case. The Court found that the marks were not similar enough to cause consumer confusion.
Surfvivor appealed immediately, but its action did not survive for long. The Court of Appeals affirmed the District Court’s ruling. The Court of Appeal based its opinion on two strands of thought. First, the Court concluded that no actual confusion existed between the two trademarks. If nearly all of the customers and retailers had no confusion, then “customers were not likely to associate the two products or conclude [they] came from the same source.”
Second, the Court reasoned that Surfvivor did not suffer any damages. For example, no merchants stopped doing business with Surfvivor due to any confusion.
Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 2005 U.S.App.LEXIS 7688 (9th Cir. 2005).
Right of Publicity Does Not Cover the Same Subject Matter as Copyright
A model, June Toney, signed a contract for her photo to be used by Ultra Sheen Supreme Shampoo. The contract ended in November 2005, but Ultra Sheen continued to use Toney’s photo. Toney brought suit under an Illinois right of publicity statute.
The Federal District Court dismissed her suit based on a section of the Federal Copyright Act that preempts state law claims if the subject matter is covered under the Copyright Act itself. The Court of Appeals affirmed the dismissal.
But Toney was not through. She petitioned the Court of Appeals for a rehearing and the Court reversed its previous ruling. The Court reasoned that the Illinois statute protects a person’s “identity,” while the Copyright Act applies to creative works that are fixed in a tangible medium. The Court wrote, “Toney’s identity is not fixed in a tangible medium of expression.” The subject matter was not the same, and therefore not covered under the Copyright Act.
Furthermore, the Court found another distinction. The Illinois statute protects the right to control the commercial value of a person’s identity. The Copyright Act, in contrast, protects the right to reproduce and perform works.
The case was remanded to the District Court to proceed on the right of publicity claim.
Toney v. L’Oreal USA, Inc., 406 F.3d 905, 2005 U.S.App.LEXIS 7897 (7th Cir. 2005).
Surfvivor appealed immediately, but its action did not survive for long. The Court of Appeals affirmed the District Court’s ruling. The Court of Appeal based its opinion on two strands of thought. First, the Court concluded that no actual confusion existed between the two trademarks. If nearly all of the customers and retailers had no confusion, then “customers were not likely to associate the two products or conclude [they] came from the same source.”
Second, the Court reasoned that Surfvivor did not suffer any damages. For example, no merchants stopped doing business with Surfvivor due to any confusion.
Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 2005 U.S.App.LEXIS 7688 (9th Cir. 2005).
Right of Publicity Does Not Cover the Same Subject Matter as Copyright
A model, June Toney, signed a contract for her photo to be used by Ultra Sheen Supreme Shampoo. The contract ended in November 2005, but Ultra Sheen continued to use Toney’s photo. Toney brought suit under an Illinois right of publicity statute.
The Federal District Court dismissed her suit based on a section of the Federal Copyright Act that preempts state law claims if the subject matter is covered under the Copyright Act itself. The Court of Appeals affirmed the dismissal.
But Toney was not through. She petitioned the Court of Appeals for a rehearing and the Court reversed its previous ruling. The Court reasoned that the Illinois statute protects a person’s “identity,” while the Copyright Act applies to creative works that are fixed in a tangible medium. The Court wrote, “Toney’s identity is not fixed in a tangible medium of expression.” The subject matter was not the same, and therefore not covered under the Copyright Act.
Furthermore, the Court found another distinction. The Illinois statute protects the right to control the commercial value of a person’s identity. The Copyright Act, in contrast, protects the right to reproduce and perform works.
The case was remanded to the District Court to proceed on the right of publicity claim.
Toney v. L’Oreal USA, Inc., 406 F.3d 905, 2005 U.S.App.LEXIS 7897 (7th Cir. 2005).
Friday, November 18, 2005
“Wife Swap” Producer May Proceed with Copyright Infringement Claim Against “Trading Spouses”
RDF Media produced a reality television show called “Wife Swap” that was aired on ABC in May 2004. Shortly after its airing, Fox Broadcasting ran a similar show called “Trading Spouses.” RDF brought suit based on two claims: copyright and trade dress infringement. Fox filed a motion to dismiss all of RDF’s claims.
In response to Fox’s motion, the Federal District Court Judge dismissed RDF’s trade dress claim because a television show itself could not be a trademark. The Court reasoned, “Trademark is concerned with the protection of symbols or elements; it does not protect the content of a creative work of artistic expression as a trademark for itself.”
RDG’s copyright claim withstood Fox’s motion to dismiss. RDF had filed the complaint before all of its episodes had been registered with the Copyright Office. The Court concluded that because the errant registrations were filed by the time the motion was heard no basis existed for dismissing the copyright claim.
RDF Media Limited v. Fox Broadcasting Company, 372 F. Supp.2d 556, 2005 U.S.Dist.LEXIS 12923 (C.D.Cal. 2005).
San Francisco’s Film Art’s Foundation to offer Self Defense Seminar December 10
Writers, directors, and producers must understand their legal rights and how to defend themselves against exploitation by production and distribution companies. In this intensive seminar, filmmakers learn how to anticipate problems before they arise in negotiations and create incentives that encourage companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an un-resolvable dispute, participants learn what remedies are available to enforce their rights.
Mark Litwak is a veteran entertainment attorney with offices in Beverly Hills, California. He writes a monthly syndicated column that appears on the Film Arts Web site as "The Litwak Files," and is the author of six books, including Reel Power, The Struggle for Influence and Success in the New Hollywood, Courtroom Crusaders, Dealmaking in the Film and Television Industry (winner of the 1995 Krazna-Krausz Book Award), Contracts for the Film and Television Industry, and Risky Business. He is the author of the popular CD-ROM program Movie Magic Contracts. In addition, Litwak is a producer's rep, assisting filmmakers in the financing, marketing and distribution of their films.
Self-Defense for Independent Filmmakers: Protecting Your Legal Rights
Sat Dec 10th from 9:00 AM to 5:00 PM
$95/Filmmaker-level members; $145/others.
Film Arts Foundation
145 9th Street, #101
San Francisco, CA, 94103
Call (415) 552-8760 to sign up or for questions or email education@filmarts.org
In response to Fox’s motion, the Federal District Court Judge dismissed RDF’s trade dress claim because a television show itself could not be a trademark. The Court reasoned, “Trademark is concerned with the protection of symbols or elements; it does not protect the content of a creative work of artistic expression as a trademark for itself.”
RDG’s copyright claim withstood Fox’s motion to dismiss. RDF had filed the complaint before all of its episodes had been registered with the Copyright Office. The Court concluded that because the errant registrations were filed by the time the motion was heard no basis existed for dismissing the copyright claim.
RDF Media Limited v. Fox Broadcasting Company, 372 F. Supp.2d 556, 2005 U.S.Dist.LEXIS 12923 (C.D.Cal. 2005).
San Francisco’s Film Art’s Foundation to offer Self Defense Seminar December 10
Writers, directors, and producers must understand their legal rights and how to defend themselves against exploitation by production and distribution companies. In this intensive seminar, filmmakers learn how to anticipate problems before they arise in negotiations and create incentives that encourage companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an un-resolvable dispute, participants learn what remedies are available to enforce their rights.
Mark Litwak is a veteran entertainment attorney with offices in Beverly Hills, California. He writes a monthly syndicated column that appears on the Film Arts Web site as "The Litwak Files," and is the author of six books, including Reel Power, The Struggle for Influence and Success in the New Hollywood, Courtroom Crusaders, Dealmaking in the Film and Television Industry (winner of the 1995 Krazna-Krausz Book Award), Contracts for the Film and Television Industry, and Risky Business. He is the author of the popular CD-ROM program Movie Magic Contracts. In addition, Litwak is a producer's rep, assisting filmmakers in the financing, marketing and distribution of their films.
Self-Defense for Independent Filmmakers: Protecting Your Legal Rights
Sat Dec 10th from 9:00 AM to 5:00 PM
$95/Filmmaker-level members; $145/others.
Film Arts Foundation
145 9th Street, #101
San Francisco, CA, 94103
Call (415) 552-8760 to sign up or for questions or email education@filmarts.org
Monday, November 07, 2005
NALIP AND SAN JUAN CINEMAFEST SPONSOR FREE PANELS ON PITCHING, FINANCING AND DISTRIBUTING FILMS
The Puerto Rico chapter of the National Association of Latino Independent Producers Association (NALIP), in conjunction with the San Juan Cinemafest and the Puerto Rico Film Corporation, will sponsor a full day of free panels on feature film pitching, finance, and distribution for indie filmmakers, beginning at 10 a.m. on Thursday, November 10, at the Normandie Hotel in San Juan, according to Frances Lausell, president of NALIP-PR.
Participants will include NALIP Executive Director and independent producer Kathryn Galán, veteran entertainment attorney and producers’ representative Mark Litwak, long-time personal manager and award-winning producer Marilyn Atlas, financing executive Pamela Peak, and Venevisión International Film and Theater Division Manager Julio Noriega.
Kathryn Galán has established NALIP as the preeminent national Latino media organization in the U.S., dedicated to increasing the quality and quantity of Latino/a film, television and documentary projects by supporting Latino/a writers, producers, directors and creative talent and advocating on their behalf. NALIP runs regional programs plus four national Signature programs: the Latino Writers Lab™ held in New York each spring and Santa Monica, California each fall; the intensive 10-day Latino Producers Academy™ held in Tucson, Arizona each summer; a national Conference that welcomes over 600 makers and funders each spring, and the Latino Media Resource Guide™, the go-to source for information on Latino directors, writers, producers, craftspersons, funders, diversity opportunities, distributors, and film programs.
Mark Litwak’s entertainment law practice includes work in the areas of copyright, trademark, contract, multimedia law, intellectual property, and book publishing (“Dealmaking in the Film and Television Industry,” “Risky Business: Financing and Distribution of Independent Film”). As a producers’ rep, Litwak assists filmmakers in the marketing and distribution of their films through such renowned film festivals as Cannes, Toronto, Telluride, and others. At this year’s Sundance Film Festival, three of his clients had films acquired for distribution: HUSTLE & FLOW, which won the Audience Award (Paramount), THE MATADOR (Miramax), and MARILYN HOTCHKISS BALLROOM DANCING AND CHARM SCHOOL (Goldwyn).
Equally at home in the worlds of film, television, and live theater, Marilyn Atlas is a founding member of Women in Film’s Luminas Committee, which supports the portrayal of women in non-stereotypical roles in film and television, and is committed to finding projects that reflect diversity and non-stereotypical characters. Among her credits as a film producer are REAL WOMEN HAVE CURVES for HBO, which won the Audience Award at the Sundance Film Festival, A CERTAIN DESIRE, starring Sam Waterston, and ECHOES, which won the Gold Award at the Texas International Film Festival.
Julio Noriega heads up the film and theatrical division for Venevisión International, which over the past 30 years has been one of the most important providers of Spanish language programming for Latin America and the world, positioning its productions in more than 20 languages and currently reaching 97% of the entire U.S. Latino population, thanks to its association with Univisión Communications.
“NALIP-PR’s mission is to help develop and expand Puerto Rico’s film industry and film community,” said Lausell. “By organizing activities such as this one, we hope to provide an opportunity for local filmmakers to obtain practical information directly from working professionals in the industry, as well as a giving them a chance to network and establish contacts which could prove of great value in the future.”
Contact: Frances Lausell
Phone: 787-268-0063
Cell Phone: 787-640-5290
E-mail: isladigital@aol.com
DEAL MAKING PUBLISHED IN KOREAN LANGUAGE
Mark Litwak's book "Dealmaking in the Film and Television Industry, 2nd Edition" has been republished in Korea by Easy Books. We have a limited number of these books for sale at $25 plus shipping. Call (310) 859 9595 if you would like to purchase one.
Dealmaking is the first self-defense book for everyone working in the film and television industry, addressing a general, non-attorney readership, it is a fascinating, highly accessible and practical guide to current entertainment law peculiarities and "creative" practices. Armed with this book, filmmakers can save themselves thousands of dollars in legal fees as they navigate the entertainment business's shark-infested waters. Whether you are a professional or wannabe producer, writer, director, or actor, this book can help you make the most of your business dealings while steering you clear of contractual traps. The second edition of this popular book contains hundreds of updates and revisions of the first edition and includes two new chapters: Legal Remedies and Retaining Attorneys, Agents, and Managers.
Participants will include NALIP Executive Director and independent producer Kathryn Galán, veteran entertainment attorney and producers’ representative Mark Litwak, long-time personal manager and award-winning producer Marilyn Atlas, financing executive Pamela Peak, and Venevisión International Film and Theater Division Manager Julio Noriega.
Kathryn Galán has established NALIP as the preeminent national Latino media organization in the U.S., dedicated to increasing the quality and quantity of Latino/a film, television and documentary projects by supporting Latino/a writers, producers, directors and creative talent and advocating on their behalf. NALIP runs regional programs plus four national Signature programs: the Latino Writers Lab™ held in New York each spring and Santa Monica, California each fall; the intensive 10-day Latino Producers Academy™ held in Tucson, Arizona each summer; a national Conference that welcomes over 600 makers and funders each spring, and the Latino Media Resource Guide™, the go-to source for information on Latino directors, writers, producers, craftspersons, funders, diversity opportunities, distributors, and film programs.
Mark Litwak’s entertainment law practice includes work in the areas of copyright, trademark, contract, multimedia law, intellectual property, and book publishing (“Dealmaking in the Film and Television Industry,” “Risky Business: Financing and Distribution of Independent Film”). As a producers’ rep, Litwak assists filmmakers in the marketing and distribution of their films through such renowned film festivals as Cannes, Toronto, Telluride, and others. At this year’s Sundance Film Festival, three of his clients had films acquired for distribution: HUSTLE & FLOW, which won the Audience Award (Paramount), THE MATADOR (Miramax), and MARILYN HOTCHKISS BALLROOM DANCING AND CHARM SCHOOL (Goldwyn).
Equally at home in the worlds of film, television, and live theater, Marilyn Atlas is a founding member of Women in Film’s Luminas Committee, which supports the portrayal of women in non-stereotypical roles in film and television, and is committed to finding projects that reflect diversity and non-stereotypical characters. Among her credits as a film producer are REAL WOMEN HAVE CURVES for HBO, which won the Audience Award at the Sundance Film Festival, A CERTAIN DESIRE, starring Sam Waterston, and ECHOES, which won the Gold Award at the Texas International Film Festival.
Julio Noriega heads up the film and theatrical division for Venevisión International, which over the past 30 years has been one of the most important providers of Spanish language programming for Latin America and the world, positioning its productions in more than 20 languages and currently reaching 97% of the entire U.S. Latino population, thanks to its association with Univisión Communications.
“NALIP-PR’s mission is to help develop and expand Puerto Rico’s film industry and film community,” said Lausell. “By organizing activities such as this one, we hope to provide an opportunity for local filmmakers to obtain practical information directly from working professionals in the industry, as well as a giving them a chance to network and establish contacts which could prove of great value in the future.”
Contact: Frances Lausell
Phone: 787-268-0063
Cell Phone: 787-640-5290
E-mail: isladigital@aol.com
DEAL MAKING PUBLISHED IN KOREAN LANGUAGE
Mark Litwak's book "Dealmaking in the Film and Television Industry, 2nd Edition" has been republished in Korea by Easy Books. We have a limited number of these books for sale at $25 plus shipping. Call (310) 859 9595 if you would like to purchase one.
Dealmaking is the first self-defense book for everyone working in the film and television industry, addressing a general, non-attorney readership, it is a fascinating, highly accessible and practical guide to current entertainment law peculiarities and "creative" practices. Armed with this book, filmmakers can save themselves thousands of dollars in legal fees as they navigate the entertainment business's shark-infested waters. Whether you are a professional or wannabe producer, writer, director, or actor, this book can help you make the most of your business dealings while steering you clear of contractual traps. The second edition of this popular book contains hundreds of updates and revisions of the first edition and includes two new chapters: Legal Remedies and Retaining Attorneys, Agents, and Managers.
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