Check out the free internet law treatise at http://ilt.eff.org/. It is sponsored by the Electronic Frontier Foundation and is an open collaborative treaty summarizing the law relating to the internet.
Based on the publication Electronic Media and Privacy Law Handbook, published by Perkins Coie in 2003, it contains extensive information including sections on Defamation, Content and Speech Regulation, Copyright, Trademark, Misappropriation, Electronic Contracts and Privacy. It is still in Beta stage, and it is a wiki, or collaborative endeavor of many contributors who can edit the material, so one should be cautious about relying exclusively on it.
MARILYN MONROE ESTATE HAS NO RIGHT OF PUBLICITY
A federal judge has held that Marilyn Monroe's right of publicity did not survive her death. Consequently a the owner of photographs of her could sell images of the screen siren to commercial product manufacturers without paying a licensing fee.
The judge said Monroe did not have the capacity to grant property rights that she did not own at the time of her death.
Monroe's estate argued that it was the successor to Monroe's right of publicity, arising from her grant of the right in her will to actor Lee Strasberg, a friend of Monroe's. When Strasberg died, his heirs established a company to manage the intellectual property assets of the beneficiaries of Monroe's will. Monroe's estate claimed that Shaw Family Archives (SFA), owner of the photos, use of the actress's image violated its rights under Indiana's 1994 Right of Publicity Act. This law creates a descendible and transferable right of publicity that survives for 100 years after a person's death.
SFA contended that the Monroe estate could not lay claim to the rights because Monroe could only devise by will property that she owned when she died. Neither New York nor California, the only possible domiciles of Monroe at the time of her death, recognized such rights at that time. Moreover, Indiana also did not recognize such rights at the time.
Shaw Family Archives Ltd. et al. v. CMG Worldwide Inc. et al., No. 05-3939, 2007 WL 1413381 (S.D.N.Y. May 7, 2007).
Saturday, June 16, 2007
Saturday, June 09, 2007
MUSIC DOWNLOADERS NOT REQUIRED TO PAY PERFORMANCE ROYALTIES.
AOL and other online services are not required to pay performance royalties on music downloaded over the Internet, according to a New York federal court. The court held that downloading a song is not a public performance of the song under copyright law.
Both parties had asked for partial summary judgment on the question of whether Internet downloads of music constitutes “performance” of music under the Copyright Act.
U.S. District Judge William C. Conner, found that a download involves copying a file from one computer to another. The file is stored on a recipient’s hard drive and can be copied to other devices such as digital music players.
Downloading, is a reproduction of a copyrighted work, but it is not a public performance right, Judge Conner said. The judge cited statements from the U.S. Copyright Office and the U.S. Department of Commerce, which have taken the position that digital downloads of music are not public performances of those works.
On the other hand, “streaming” is when a song is transmitted over the Internet to be listened to in real time. The file is not stored on the recipient's computer and must be “streamed” again each time the recipient wants to listen to it. The court acknowledged that streaming music is a public performance. United States v. American Society of Composers, Authors & Publishers et al., No. 41-1395, 2007 WL 1346568 (S.D.N.Y. Apr. 25, 2007).
Both parties had asked for partial summary judgment on the question of whether Internet downloads of music constitutes “performance” of music under the Copyright Act.
U.S. District Judge William C. Conner, found that a download involves copying a file from one computer to another. The file is stored on a recipient’s hard drive and can be copied to other devices such as digital music players.
Downloading, is a reproduction of a copyrighted work, but it is not a public performance right, Judge Conner said. The judge cited statements from the U.S. Copyright Office and the U.S. Department of Commerce, which have taken the position that digital downloads of music are not public performances of those works.
On the other hand, “streaming” is when a song is transmitted over the Internet to be listened to in real time. The file is not stored on the recipient's computer and must be “streamed” again each time the recipient wants to listen to it. The court acknowledged that streaming music is a public performance. United States v. American Society of Composers, Authors & Publishers et al., No. 41-1395, 2007 WL 1346568 (S.D.N.Y. Apr. 25, 2007).
THE FUTURE IS MOBILE
I recently attended the NATPE Mobile ++ conference in Las Vegas to find out how the ability to watch content on mobile devices will change the motion picture and television industry. I learned that there are now more mobile phones in the U.S.A. than people - guess some of us use more than one, and perhaps have a few older models sitting in a drawer. However, only 10 percent of those mobile phones have the capability to exhibit video footage. And only 10 percent of those capable are actually using their phones and mobile devices to watch such content.
Experts predict that the viewers of content on mobile devices are likely to grow exponentially. In the first quarter of 2006, the revenue from mobile video was $51 million; by the third quarter it had risen to $140 million, and mobile video is now a-half-billion-dollar-a-year market. The world has 2.5 billion cell phone subscribers, yet most don't have phones with the new third generation (3-G) technology.
Meanwhile, a new generation of devices is generating enthusiasm among consumers and competition among manufacturers. Samsung Electronics Co. has a new mobile phone, the Ultra Smart F700, which has many of the same features as the new Apple iPhone. The Samsung phone can access the Internet, play music, take pictures, show videos, handle e-mail and share photos. Its third-generation (3G) technology is faster than iPhone's EDGE system, and its 5-megapixel camera has better resolution than the iPhone's 2-megapixels.
Primetime viewing for mobile video is in the afternoon and early evening. According to consumer research firm Telephia, 30 percent of mobile video users watch mobile TV and video clips on their cell phones between noon and 4 pm, and 31 percent watch during the early evening commuting hours of 4 pm to 8 pm. Mobile video viewing drops to nine percent during the regular television primetime hours of 8 pm to 11 pm.
Contrary to popular belief, mobile video usage is being consumed by older age groups, as well as teens. 50 percent of mobile video users are 25-to-36-year-olds, compared to 24 percent of the total mobile population. In terms of gender, mobile video usage does resemble an early adoption profile, where 7 out of 10 users are men, compared to a nearly even male/female ratio for all mobile subscribers. Mobile video user demographics show an ethnically diverse population, with 16 percent of mobile video users being African-American and 27 percent Hispanic, compared to 11 percent for each group for general mobile subscribers. No one has explained why mobile video is so popular with these demographic groups. Surprisingly, 22 percent of mobile video watching is at home, the same amount as during commuting; 16 percent of mobile viewing is done while shopping, and 14 percent happens at work.
Mobile viewing is a personal experience, not often shared with others. News, weather and sports are currently the most watched content. ABC News was the most popular mobile TV channel in the second quarter of 2006, commanding 40 percent of the total mobile TV audience. Thirty-two percent watched The Weather Channel, while Fox Sports and ESPN followed with 31 and 29 percent, respectively.
With the spread of new high-speed 3G networks, distribution of porn is expected to surge. In 2006, adult mobile content generated about $1.4 billion in sales worldwide in a market where mobile entertainment overall generated about $17 billion, according to Juniper Research. While adult mobile content generated far less revenue than other types of entertainment such as the $6.6 billion revenue from music, it will likely grow rapidly over the next several years. By 2011, adult content is expected to account for $3.3 billion worth of mobile content sales out of a total of $77 billion in entertainment revenue. None of the large U.S. wireless carriers offer adult content programming, and there is concern about how to verify subscribers' ages. In Europe and in parts of Asia, carrying porn hasn't been a major issue with even the largest carriers such as Vodafone, Orange and T-Mobile.
The Sundance Institute recently embraced mobile content by joining with the GSM Association (GSMA), to create the Global Short Film Project, a pilot program to showcase independent short films to mobile users worldwide. Six filmmakers who have had films at Sundance received $20,000 each to create short films of three to five minutes for mobile distribution. "Cell phones are fast becoming the 'fourth screen' medium, after television, cinema and computers," according to Sundance Institute founder Robert Redford.
MobiTV, Inc. (http://www.mobitv.com/) is one of the largest content providers with more than one million subscribers. The service is available in the US through Sprint, AT&T, Cingular, Alltel; in the UK through 3UK and Orange; in Canada through Bell Canada, Rogers and TELUS Mobility; in Latin America through América Móvil, Claro and Telcel; and other regional carriers internationally. The service offers many popular TV channels such as MSNBC, ABC News Now, CNN, FOX News Channel, Fox Sports, ESPN 3GTV, NBC Mobile, CNBC, CSPAN, The Discovery Channel, TLC, and The Weather Channel.
Subscribers need to sign up for data packages on top of their monthly voice fees in order to access video clips. Sprint Nextel offers packages for $15, $20 and $25 a month. Verizon Wireless V Cast service costs $15 per month. It is not clear how many consumers are willing to pay $9.99 or more per month for such a subscription, or whether an ad-supported free service is more likely to gain wide acceptance.
The ability to distribute independent films over mobile devices may enable filmmakers to reach consumers by bypassing the established networks and studio gatekeepers that have traditionally been uninterested in niche content and short films. It is by no means clear how the market will develop, and what opportunities will be available for independent filmmakers. But it is worth noting that seven billion dollars was spent last year on ring tones, and a hundred million user generated videos are viewed daily on YouTube.
CANNES FILMMAKERS
Congratulations to our clients Writer/Director Cecilia Miniucchi and Executive Producer Antoni Stutz who feature film "Expired" will be shown as part of the Cannes Film Festival. It will be the closing film in Critics Week. Expired was the only U.S. picture to make it into Critics Week from over 600 features reviewed. The film which was first shown at Sundance. It is a bittersweet comedy starring Samantha Morton and Jason Patric.
DIAMOND DOG COMMENCES PRODUCTION
I am executive producer of a new family film that commenced principal photography this past week in Spokane, Washington. It is a family comedy feature Diamond Dog, being directed and produced by Emmy-winning and DGA Award-nominated Mark Stouffer.
The film stars French Stewart (Clockstoppers) as the boss of a bumbling band of jewel thieves, with Kevin Farley (The Waterboy) and Kelly Perine (One on One) as his sidekick thugs.
The thieves have pulled off a $5 million jewel heist and are in town to make their connection, when a 12 year old boy - played by Luke Benward (How To Eat Fried Worms) -- rescues a dog from them after they threaten it. Unbeknownst to the boy, the dog is the mule they used to smuggle the jewels, and the thieves will do anything to get it back. The boy takes the dog, which he names Diamond, to his secret fort in the woods and prepares for battle. When the thieves come after him, the ingenious traps he's devised wreak havoc.
The film also features John Farley, Garrett Morris, Brittany Curran, Cameron Monaghan and Denyse Tontz.
Saturday, April 14, 2007
CLASH OF THE TITANS: VIACOM AGAINST GOOGLE
On March 13, 2007, Viacom filed a copyright infringement suit against YouTube and parent company Google. Viacom, whose brands include MTV, VH1, BET, Nickelodeon, DreamWorks, Paramount Pictures, and Comedy Central is asking for $1 Billion in damages and an injunction barring YouTube from future copyright infringement. Viacom claims that 160,000 unauthorized video clips have been shown on YouTube over 1.5 billion times.
Viacom also contends that YouTube gives preferential treatment to companies that have granted YouTube licenses to use their material by selectively filtering copyrighted works.Viacom’s actions diverge from other major entertainment companies, who have negotiated licenses with YouTube to allow their material to be shown on the website, pointing out that Viacom works with “legitimate licensed channels,” such as iTunes, to distribute their material. Viacom argues that the YouTube business model, based on selling advertising with unlicensed material, clearly amounts to copyright infringement, and that monitoring the material should not be the job of the copyright owners.
http://news.lp.findlaw.com/hdocs/docs/google/viacomyoutube31307cmp.html
Read complaint
Fighting Words Opens in L.A.
Congratulations to our client Paul Edwards whose movie Fighting Words was held over for a second week, and received a rave review from Kevin Thomas in the Los Angeles Times. Thomas called the film an engrossing tale about the surprisingly cutthroat world of competitive poetry.
The film stars C. Thomas Howell, Jeff Stearns, Tara D'Agostino, Fred Williamson, Michael Parks, Edward Laurence Albert, Dominic Comperatore, Val Lauren, Jen Dede and Fred Willard. It features original poetry by Thais Carmen, Mona Jean Cedar, Roxanne Hanna-Ware, Charles Ellik, Jeni Erickson, Bridget Gray, Adam Kelber, Javon Johnson, April Jones, Jasmin Jordan, Doug Knott, Gary McMahan, Jerry Quickley, Rives, G. Murray Thomas, t. thrasher, Quincy Troupe, Charles W. Webb, Conney Williams, Al Zolynas.
Thomas says of the film "Edwards brings alive this special world of competitive poetry along with creating unapologetically intelligent key characters."The film is being released by Indican Pictures with an R rating. It is playing exclusively at the Beverly Center 13, 8522 Beverly Blvd., at La Cienega Blvd., Los Angeles, (310) 652-7760; and at the Grande 4-Plex, 345 S. Figueroa St. at 3rd St., Los Angeles, (213) 617-0268.
http://www.calendarlive.com/printedition/calendar/cl-et-fighting6apr06,0,6422905.story?coll=cl-calendar
LAWYERS.COM NOT TRADEMARKABLE
The U.S. Federal Circuit Court of Appeals denied registration of the mark LAWYERS.COM for providing an online interactive database featuring information exchange in the fields of law, legal news, and legal services. The court found that the Trademark Trial and Appeal Board was correct in finding the mark to be generic. In re Reed Elsevier Properties Inc., No. 2006-1309, U.S. Federal Circuit Court of Appeals, April 12, 2007
Read case
Viacom also contends that YouTube gives preferential treatment to companies that have granted YouTube licenses to use their material by selectively filtering copyrighted works.Viacom’s actions diverge from other major entertainment companies, who have negotiated licenses with YouTube to allow their material to be shown on the website, pointing out that Viacom works with “legitimate licensed channels,” such as iTunes, to distribute their material. Viacom argues that the YouTube business model, based on selling advertising with unlicensed material, clearly amounts to copyright infringement, and that monitoring the material should not be the job of the copyright owners.
http://news.lp.findlaw.com/hdocs/docs/google/viacomyoutube31307cmp.html
Read complaint
Fighting Words Opens in L.A.
Congratulations to our client Paul Edwards whose movie Fighting Words was held over for a second week, and received a rave review from Kevin Thomas in the Los Angeles Times. Thomas called the film an engrossing tale about the surprisingly cutthroat world of competitive poetry.
The film stars C. Thomas Howell, Jeff Stearns, Tara D'Agostino, Fred Williamson, Michael Parks, Edward Laurence Albert, Dominic Comperatore, Val Lauren, Jen Dede and Fred Willard. It features original poetry by Thais Carmen, Mona Jean Cedar, Roxanne Hanna-Ware, Charles Ellik, Jeni Erickson, Bridget Gray, Adam Kelber, Javon Johnson, April Jones, Jasmin Jordan, Doug Knott, Gary McMahan, Jerry Quickley, Rives, G. Murray Thomas, t. thrasher, Quincy Troupe, Charles W. Webb, Conney Williams, Al Zolynas.
Thomas says of the film "Edwards brings alive this special world of competitive poetry along with creating unapologetically intelligent key characters."The film is being released by Indican Pictures with an R rating. It is playing exclusively at the Beverly Center 13, 8522 Beverly Blvd., at La Cienega Blvd., Los Angeles, (310) 652-7760; and at the Grande 4-Plex, 345 S. Figueroa St. at 3rd St., Los Angeles, (213) 617-0268.
http://www.calendarlive.com/printedition/calendar/cl-et-fighting6apr06,0,6422905.story?coll=cl-calendar
LAWYERS.COM NOT TRADEMARKABLE
The U.S. Federal Circuit Court of Appeals denied registration of the mark LAWYERS.COM for providing an online interactive database featuring information exchange in the fields of law, legal news, and legal services. The court found that the Trademark Trial and Appeal Board was correct in finding the mark to be generic. In re Reed Elsevier Properties Inc., No. 2006-1309, U.S. Federal Circuit Court of Appeals, April 12, 2007
Read case
Sunday, March 25, 2007
BROADCAST OF PROMOTIONAL CD'S REQUIRES LICENSE
An Alabama District Court has held that a radio broadcast of recordings without an ASCAP license amounted to copyright infringement. The Court disagreed with the Defendant’s claim that the broadcast of a promotional CD was not an infringing use, and stated that while a CD itself could be promotional, the licensing of a public performance was not. In other words, when a copyright holder grants a recording company the right to make and distribute promotional copies, it does not necessarily include the right to publicly broadcast those promotional copies without paying the licensing fees is also granted. Simpleville Music v. Mizell, 451 F. Supp. 2d 1293; 2006 U.S. Dist. LEXIS 65944.
EQUITABLE DEFENSE AVAILABLE TO MGM
“Chitty Chitty Bang Bang” was the subject of a copyright infringement suit recently filed by the trustees of writer Ian Fleming’s estate. The suit against MGM claimed that upon the expiration of the initial term of copyright the rights reverted to the estate, which made MGM’s continued distribution of the movie based on Fleming’s story an infringement of is rights.
MGM acquired the rights to “Chitty Chitty Bang Bang” through a book trust created by Fleming, but the renewal right passed directly to Fleming’s estate. Under 17 U.S.C. §304, renewal rights pass to the executor of an author's estate when the author and his immediate family die during the initial term of copyright. Fleming’s estate sued because the rights no longer existed in the book trust; they belonged to the estate.
The District Court held that although the estate controlled the copyright to the story, MGM had spent millions to promote the movie since the renewal term had gone into effect. Additionally, because the estate did not file the claim until years after the renewal term took effect, the Court held that the defense of equitable estoppel was available to MGM. Legislator 1357 Ltd. v. MGM, 452 F. Supp. 2d 382; 2006 U.S. Dist. LEXIS 67799.
EQUITABLE DEFENSE AVAILABLE TO MGM
“Chitty Chitty Bang Bang” was the subject of a copyright infringement suit recently filed by the trustees of writer Ian Fleming’s estate. The suit against MGM claimed that upon the expiration of the initial term of copyright the rights reverted to the estate, which made MGM’s continued distribution of the movie based on Fleming’s story an infringement of is rights.
MGM acquired the rights to “Chitty Chitty Bang Bang” through a book trust created by Fleming, but the renewal right passed directly to Fleming’s estate. Under 17 U.S.C. §304, renewal rights pass to the executor of an author's estate when the author and his immediate family die during the initial term of copyright. Fleming’s estate sued because the rights no longer existed in the book trust; they belonged to the estate.
The District Court held that although the estate controlled the copyright to the story, MGM had spent millions to promote the movie since the renewal term had gone into effect. Additionally, because the estate did not file the claim until years after the renewal term took effect, the Court held that the defense of equitable estoppel was available to MGM. Legislator 1357 Ltd. v. MGM, 452 F. Supp. 2d 382; 2006 U.S. Dist. LEXIS 67799.
Sunday, March 04, 2007
Videogame Producer Can Base Game Character on A Real Celebrity
Keirin Kirby (“Kirby”), professionally known as “Lady Miss Kier,” was the lead singer of a retro-funk-dance musical group known as “Deee-Lite” which was popular in the early 1990’s. Deee-Lite produced five albums which were distributed and sold throughout the world.
Sega of America, Inc., is a distributor of a videogame called “Space Channel 5” (SC5). The game was created by an employee of Sega Japan. Sega denied using Kirby as the basis for one of its characters. Kirby sued alleging that, in creating a character in the video game, Sega had misappropriated her likeness and identity in violation of state and federal law. The distributors moved for summary judgment asserting the First Amendment provided a complete defense to each of the celebrity plaintiff’s claims. The trial court agreed, granted the motions, and subsequently awarded the distributor’s mandatory attorney’s fees. On appeal, the trail court’s ruling was affirmed.
The court found that the First Amendment afforded a complete defense to Kirby’s claims. The court stated “The freedom of expression protected by the First Amendment exists to preserve an uninhibited marketplace of ideas and to further individual rights of self expression…The protections may extend to all forms of expression, including written and spoken words (fact or fiction), music, films, paintings, and entertainment, whether or not sold for a profit…Video games are expressive works entitled to as much First Amendment protection as the most profound literature.” The court held that the videogame contained significant transformative elements. Celebrities are only protected from literal depictions or imitations for commercial gain by works which do not add significant new expression. Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47, 2006 Cal. App. LEXIS 1672; http://www.courtinfo.ca.gov/opinions/documents/B183820.PDF (Cal.Ct.App. 2006)
Congratulations to Our Clients
Writer/Director Craig Brewer whose film “Black Snake Moan,” premiered at Sundance and opened this weekend on 1200 screens with rave reviews. http://www.moanmovie.com/
Documentary Filmmaker Anne Aghion who has recently returned from Antarctica where she filmed a documentary. On March 10 at 3pm and March 11 at 1pm, she will show the very first images of Antarctica film during the New York City International Polar Weekend at the American Museum of Natural History in New York. During the 45-minute presentation, "Living Antarctica: Filming Extreme Science... on Ice", she will show a short clip from the upcoming film, and photos of her four months filming in Antarctica, including seven weeks in a tent in the mountains above the Dry Valleys. The New York City International Polar Weekend includes lectures and panels, a film series and a polar fair, and is organized by the Museum in partnership with Columbia University, Barnard College, Wings WorldQuest, and the Explorers Club. The event is free with Museum admission.
Director Reed R. McCants, and producers Neema Barnette, Daisy Lawrence and Thomas Karl whose feature film Cuttin’ Da Mustard premiered at the Pan African Film Festival last week and won the Festival Choice Award For Best Feature. The picture stars Keshia Knight Pulliam (Beauty Shop, The Gospel, The Cosby Show), Wesley Jonathan (Divine Intervention, Queen of Media, Steppin: The Movie), Charles S. Dutton (Alien 3, Tony Nominee for Ma Rainey’s Black Bottom and The Piano Lesson), Adrienne Bailon (The Cheetah Girls, The Cheetah Girls 2), Sinbad (Jingle All the Way, Houseguest, and First Kid),), Brandon T. Jackson (Roll Bounce, host for Up Close and Personal Tour ), Kym Whitley (The Perfect Man, The Salon, Next Friday), Debra Wilson (City Girls, Scary Movie 4, Ice Age 2), Chico Benymon (Ali), and Lil’ Zane (Finding Forrester, Dr. Dolittle 2).
UCLA Self Defense Seminar May 5 & 6
Mark will once again present his annual legal self defense seminar at U.C.L.A.
Writers and filmmakers will learn how to make shrewd business decisions and protect their interests in negotiations with production and distribution companies. Instruction covers how to anticipate problems before they arise and how to encourage other parties to live up to their contractual obligations through performance incentives, default penalties, and arbitration.
In the event of a dispute, learn what remedies are available to enforce your rights. Topics include creative accounting; customary terms of contracts; negotiating tactics and strategies; properly securing rights to your work; and how to avoid being sued for copyright infringement, defamation, or invasion of privacy.
Attention is paid to how to protect oneself by modifying warranties, obtaining E & O coverage, using lab access letters to retain control of masters, and utilizing termination clauses. The seminar includes an extensive handout with sample forms, contracts. and a self-defense checklist.
Applies toward Business and Legal Affairs requirement in Certificate Program in the Business and Management of Film, Television, and Digital Entertainment Media.
Advance enrollment required; no enrollment at the door. 8.75 hours of MCLE credit available for lawyers.
Registration number: S8428U. Additional info online at: http://www.uclaextension.edu/index.cfm
Sega of America, Inc., is a distributor of a videogame called “Space Channel 5” (SC5). The game was created by an employee of Sega Japan. Sega denied using Kirby as the basis for one of its characters. Kirby sued alleging that, in creating a character in the video game, Sega had misappropriated her likeness and identity in violation of state and federal law. The distributors moved for summary judgment asserting the First Amendment provided a complete defense to each of the celebrity plaintiff’s claims. The trial court agreed, granted the motions, and subsequently awarded the distributor’s mandatory attorney’s fees. On appeal, the trail court’s ruling was affirmed.
The court found that the First Amendment afforded a complete defense to Kirby’s claims. The court stated “The freedom of expression protected by the First Amendment exists to preserve an uninhibited marketplace of ideas and to further individual rights of self expression…The protections may extend to all forms of expression, including written and spoken words (fact or fiction), music, films, paintings, and entertainment, whether or not sold for a profit…Video games are expressive works entitled to as much First Amendment protection as the most profound literature.” The court held that the videogame contained significant transformative elements. Celebrities are only protected from literal depictions or imitations for commercial gain by works which do not add significant new expression. Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47, 2006 Cal. App. LEXIS 1672; http://www.courtinfo.ca.gov/opinions/documents/B183820.PDF (Cal.Ct.App. 2006)
Congratulations to Our Clients
Writer/Director Craig Brewer whose film “Black Snake Moan,” premiered at Sundance and opened this weekend on 1200 screens with rave reviews. http://www.moanmovie.com/
Documentary Filmmaker Anne Aghion who has recently returned from Antarctica where she filmed a documentary. On March 10 at 3pm and March 11 at 1pm, she will show the very first images of Antarctica film during the New York City International Polar Weekend at the American Museum of Natural History in New York. During the 45-minute presentation, "Living Antarctica: Filming Extreme Science... on Ice", she will show a short clip from the upcoming film, and photos of her four months filming in Antarctica, including seven weeks in a tent in the mountains above the Dry Valleys. The New York City International Polar Weekend includes lectures and panels, a film series and a polar fair, and is organized by the Museum in partnership with Columbia University, Barnard College, Wings WorldQuest, and the Explorers Club. The event is free with Museum admission.
Director Reed R. McCants, and producers Neema Barnette, Daisy Lawrence and Thomas Karl whose feature film Cuttin’ Da Mustard premiered at the Pan African Film Festival last week and won the Festival Choice Award For Best Feature. The picture stars Keshia Knight Pulliam (Beauty Shop, The Gospel, The Cosby Show), Wesley Jonathan (Divine Intervention, Queen of Media, Steppin: The Movie), Charles S. Dutton (Alien 3, Tony Nominee for Ma Rainey’s Black Bottom and The Piano Lesson), Adrienne Bailon (The Cheetah Girls, The Cheetah Girls 2), Sinbad (Jingle All the Way, Houseguest, and First Kid),), Brandon T. Jackson (Roll Bounce, host for Up Close and Personal Tour ), Kym Whitley (The Perfect Man, The Salon, Next Friday), Debra Wilson (City Girls, Scary Movie 4, Ice Age 2), Chico Benymon (Ali), and Lil’ Zane (Finding Forrester, Dr. Dolittle 2).
UCLA Self Defense Seminar May 5 & 6
Mark will once again present his annual legal self defense seminar at U.C.L.A.
Writers and filmmakers will learn how to make shrewd business decisions and protect their interests in negotiations with production and distribution companies. Instruction covers how to anticipate problems before they arise and how to encourage other parties to live up to their contractual obligations through performance incentives, default penalties, and arbitration.
In the event of a dispute, learn what remedies are available to enforce your rights. Topics include creative accounting; customary terms of contracts; negotiating tactics and strategies; properly securing rights to your work; and how to avoid being sued for copyright infringement, defamation, or invasion of privacy.
Attention is paid to how to protect oneself by modifying warranties, obtaining E & O coverage, using lab access letters to retain control of masters, and utilizing termination clauses. The seminar includes an extensive handout with sample forms, contracts. and a self-defense checklist.
Applies toward Business and Legal Affairs requirement in Certificate Program in the Business and Management of Film, Television, and Digital Entertainment Media.
Advance enrollment required; no enrollment at the door. 8.75 hours of MCLE credit available for lawyers.
Registration number: S8428U. Additional info online at: http://www.uclaextension.edu/index.cfm
Friday, February 09, 2007
CONGRATULATIONS TO OUR SUNDANCE FILMMAKERS
Congratulations to Producer Ben Odell whose film “Padre Nuestro," a Spanish-language immigrant drama set in New York City was awarded the Dramatic Grand Jury Prize, at the 2007 Sundance Film Festival. "Padre Nuestro," centers on immigrants Juan and Pedro who meet en route to New York where Pedro hopes to meet his successful father. Juan, fleeing a criminal past, steals Pedro's belongings and later introduces himself to Pedro's father as his son, hoping to cash in on the father's supposed wealth.
Producer Jon Stern’s film “The Ten,” was acquired for $4.5 million by ThinkFilm and City Lights Home Entertainment. ThinkFilm will handle domestic theatrical distribution while City Lights will release on DVD through Warner’s Music Group’s WEA Corp. The film features Paul Rudd, Winona Ryder, Jessica Alba, Adam Brody, Live Schreiber, Justin Theroux, Gretchen Mol, Oliver Platt and Famke Janssen.
Writer/Director Craig Brewer premiered his film “Black Snake Moan” to an enthusiastic crowd. In attendance were stars Justin Timberlake, Samuel Jackson and Christina Ricci among others. http://www.myspace.com/blacksnakemoanmovie The Paramount film opens in theatres February 23rd. For a review go to: http://www.aintitcool.com/?q=node/30955
Writer/Director Cecilia Miniucchi and Executive Producer Antoni Stutz “Expired” premiered to a packed house and great reviews: Critic Dave Poland says: “Just saw what might well be this Sundance's You, Me & Everyone We Know. It's called Expired and it is a romance of broken people who, in this case, happen to be meter "maids…The film stars Samantha Morton in one of her most daring, near silent, performances. She has no past that we know of. She lives with her mother (a terrific, dramatic mute-because-of-illness performance by Teri Garr). And she is at a standstill, watching the lights of Christmas, working as a meter maid as an odd homage to her dead father, who loved cars.Jason Patric is a meter maid prick of epic proportions.
The Hollywood Reporter said: “A touching and unlikely romance that is no gloss but all heart and brains.” Read full review at: http://www.hollywoodreporter.com/hr/awards_festivals/cannes/reviews/article_display.jsp?&rid=8653.
RISKY BUSINESS SEMINAR COMING TO NEW YORK
Mark will present his "Risky Business: Financing & Distributing Independent Films" seminar for the Volunteer Lawyers for the Arts of New York on April 28, 2007 in Manhattan from 10 AM to 5 PM. Those who attend this comprehensive two-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.
The seminar will be held at One New York Plaza. Six hours of CLE credits are available for lawyers. For additional information or to register call Jonathan Tominar at VLA: 212.319.2787 x10. http://www.vlany.org/education/workshops.php
MARK LITWAK VOTED SUPER LAWYER FOR 2007
For the second year in a row, Mark Litwak has been named a Southern California Super Lawyer by the publishers of Law & Politics and Los Angeles Magazine.
Law & Politics mails ballots to 48,000 active lawyers in Southern California who have been in practice for five years or more. The ballot asks lawyers to nominate the best attorneys they’ve personally observed in action. The secret ballots are then tallied, and a blue ribbon panel of top attorneys then reviews those with the greatest number of votes. A background check is conducted to verify information about each nominee and to check for any disciplinary actions.
A copy of the magazine is mailed to all lawyers and the magazine is also distributed as a supplement in Los Angeles Magazine. Super Lawyers are also listed on line at http://www.superlawyers.com/
Producer Jon Stern’s film “The Ten,” was acquired for $4.5 million by ThinkFilm and City Lights Home Entertainment. ThinkFilm will handle domestic theatrical distribution while City Lights will release on DVD through Warner’s Music Group’s WEA Corp. The film features Paul Rudd, Winona Ryder, Jessica Alba, Adam Brody, Live Schreiber, Justin Theroux, Gretchen Mol, Oliver Platt and Famke Janssen.
Writer/Director Craig Brewer premiered his film “Black Snake Moan” to an enthusiastic crowd. In attendance were stars Justin Timberlake, Samuel Jackson and Christina Ricci among others. http://www.myspace.com/blacksnakemoanmovie The Paramount film opens in theatres February 23rd. For a review go to: http://www.aintitcool.com/?q=node/30955
Writer/Director Cecilia Miniucchi and Executive Producer Antoni Stutz “Expired” premiered to a packed house and great reviews: Critic Dave Poland says: “Just saw what might well be this Sundance's You, Me & Everyone We Know. It's called Expired and it is a romance of broken people who, in this case, happen to be meter "maids…The film stars Samantha Morton in one of her most daring, near silent, performances. She has no past that we know of. She lives with her mother (a terrific, dramatic mute-because-of-illness performance by Teri Garr). And she is at a standstill, watching the lights of Christmas, working as a meter maid as an odd homage to her dead father, who loved cars.Jason Patric is a meter maid prick of epic proportions.
The Hollywood Reporter said: “A touching and unlikely romance that is no gloss but all heart and brains.” Read full review at: http://www.hollywoodreporter.com/hr/awards_festivals/cannes/reviews/article_display.jsp?&rid=8653.
RISKY BUSINESS SEMINAR COMING TO NEW YORK
Mark will present his "Risky Business: Financing & Distributing Independent Films" seminar for the Volunteer Lawyers for the Arts of New York on April 28, 2007 in Manhattan from 10 AM to 5 PM. Those who attend this comprehensive two-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.
The seminar will be held at One New York Plaza. Six hours of CLE credits are available for lawyers. For additional information or to register call Jonathan Tominar at VLA: 212.319.2787 x10. http://www.vlany.org/education/workshops.php
MARK LITWAK VOTED SUPER LAWYER FOR 2007
For the second year in a row, Mark Litwak has been named a Southern California Super Lawyer by the publishers of Law & Politics and Los Angeles Magazine.
Law & Politics mails ballots to 48,000 active lawyers in Southern California who have been in practice for five years or more. The ballot asks lawyers to nominate the best attorneys they’ve personally observed in action. The secret ballots are then tallied, and a blue ribbon panel of top attorneys then reviews those with the greatest number of votes. A background check is conducted to verify information about each nominee and to check for any disciplinary actions.
A copy of the magazine is mailed to all lawyers and the magazine is also distributed as a supplement in Los Angeles Magazine. Super Lawyers are also listed on line at http://www.superlawyers.com/
Saturday, January 27, 2007
F-word is Indecent according to the FCC
The FCC received several complaints from organizations and individual viewers of Fox Network’s broadcast of “The 2003 Billboard Music Awards.” The indecent material complained of stemmed from remarks made by Nicole Richie to co-host Paris Hilton, where she said “f***ing.” Fox conceded to using the word but also contended that the use was not “pandering, titillating or shocking” and was not actionably indecent.
The Commission defines indecent speech as material that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium.
The Commission decided that Ms. Richie’s use of the F-word, although not describing excretory activities, still fell within the scope of indecency because using the word for emphasis or as an intensifier has long been found an indecent use. The word carries with it an implied sexual connotation and therefore will always fall within the definition of “indecent.”
In the Matter of Complaints
Regarding Various Television Broadcasts
FCC 06-166 (Nov. 2006)
http://hraunfoss.fcc.gov/edocs_public/
attachmatch/FCC-06-166A1.pdf
U.S. District Court for the Central District of California grants Plaintiffs’ motion for summary judgment against Defendant, StreamCast.
The Plaintiffs were a group of record companies, movie studios and music publishers. Defendant, StreamCast, was found liable for the infringement committed by its users on the basis of the inducement doctrine.
The Inducement Doctrine provides that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
An unlawful objective to promote infringement can be shown by a variety of means. The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations.
The court found that evidence of Defendant’s objective of promoting infringement was overwhelming and that no reasonable fact finder could conclude that Defendant provided services and distributed a software program without the intent to induce infringement.
Metro-Goldwyn-Mayer Studios, Inx. v. Grokster, Ltd.
2006 WL 2806882
The Commission defines indecent speech as material that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium.
The Commission decided that Ms. Richie’s use of the F-word, although not describing excretory activities, still fell within the scope of indecency because using the word for emphasis or as an intensifier has long been found an indecent use. The word carries with it an implied sexual connotation and therefore will always fall within the definition of “indecent.”
In the Matter of Complaints
Regarding Various Television Broadcasts
FCC 06-166 (Nov. 2006)
http://hraunfoss.fcc.gov/edocs_public/
attachmatch/FCC-06-166A1.pdf
U.S. District Court for the Central District of California grants Plaintiffs’ motion for summary judgment against Defendant, StreamCast.
The Plaintiffs were a group of record companies, movie studios and music publishers. Defendant, StreamCast, was found liable for the infringement committed by its users on the basis of the inducement doctrine.
The Inducement Doctrine provides that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
An unlawful objective to promote infringement can be shown by a variety of means. The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations.
The court found that evidence of Defendant’s objective of promoting infringement was overwhelming and that no reasonable fact finder could conclude that Defendant provided services and distributed a software program without the intent to induce infringement.
Metro-Goldwyn-Mayer Studios, Inx. v. Grokster, Ltd.
2006 WL 2806882
Wednesday, January 03, 2007
History Channel’s Airing of “Beyond the Da Vinci Code” Did Not Defame Member of the Catholic Church
In December of 2005, The History Channel aired a program entitled, “Beyond the Da Vinci Code,” (“Program”) which explored the theories set forth in Dan Brown’s novel, The Da Vinci Code. Shortly after the program aired, Walter Viola brought an action against A&E and its officers on behalf of the Roman Catholic Church and the Roman Catholic faithful alleging defamation and violations of the Communications Decency Act (“CDA”), the Child Online Protection Act (“COPA”) and the Racketeer Influenced and Corrupt Organization Act (“RICO”).
The District Court for the Western District of Pennsylvania granted Defendant’s motion to dismiss on the basis of Plaintiff’s failure to state a claim as a matter of law.
As to the defamation claim, the court found that Plaintiff failed to allege that he was personally defamed or that his reputation or ability to associate with third persons was harmed as a result of A&E airing the Program. Furthermore, the court did not find that Plaintiff established the requisite standing to bring suit on behalf of the Roman Catholic Church and its numerous members around the world.
With regards to both claims under the CDA and COPA, the court agreed that the statutes imposed criminal liability for certain activities, however, did not find that these statutes allowed enforcement by a private individual as Plaintiff had asserted in this case.
Finally, the court held that Plaintiff failed to plead sufficient facts to state a RICO violation. More specifically, Plaintiff’s complaint involved a single airing of the Program and that was insufficient to establish a “pattern” of racketeering as is defined by the statute.
Viola v. A & E Television Networks, 433 F.Supp.2d 613 (2006) (See also http://www.entertainmentlawreporter.com)
Republishing Defamatory Statements on the Internet is Protected Under the Communications Decency Act
Dr. Stephen J. Barrett and Dr. Terry Polevoy brought suit against Ilena Rosenthal for libel by maliciously distributing defamatory statements in e-mails and Internet postings on her website. Plaintiffs’ website was used to expose health fraud and Defendant allegedly republished several messages impugning their character and competence even after she was warned that the messages contained false and defamatory information.
The Court of Appeal vacated the trial court’s motion to strike under the anti-strategic lawsuit against public participation statute (Code Civ. Proc. § 425.16), as applied to one Plaintiff, holding that 47 U.S.C. § 230 applied to Defendant as a “distributor” under the common law of defamation.
The Supreme Court of California reversed the judgment of the Court of Appeal holding that § 230 prohibits “distributor” liability for Internet publications and that section (c)(1) of the Act immunizes individual users of interactive computer services and that no line can be drawn between active and passive use.
The Court stressed the fact that the holding of the Court of Appeals would cause a heavy burden on and tend to chill Internet speech.
Barrett v. Rosenthal, 40 Cal.4th 33 (2006) (See also http://www.courtinfo.ca.gov/
opinions/documents/S122953.PDF)
The District Court for the Western District of Pennsylvania granted Defendant’s motion to dismiss on the basis of Plaintiff’s failure to state a claim as a matter of law.
As to the defamation claim, the court found that Plaintiff failed to allege that he was personally defamed or that his reputation or ability to associate with third persons was harmed as a result of A&E airing the Program. Furthermore, the court did not find that Plaintiff established the requisite standing to bring suit on behalf of the Roman Catholic Church and its numerous members around the world.
With regards to both claims under the CDA and COPA, the court agreed that the statutes imposed criminal liability for certain activities, however, did not find that these statutes allowed enforcement by a private individual as Plaintiff had asserted in this case.
Finally, the court held that Plaintiff failed to plead sufficient facts to state a RICO violation. More specifically, Plaintiff’s complaint involved a single airing of the Program and that was insufficient to establish a “pattern” of racketeering as is defined by the statute.
Viola v. A & E Television Networks, 433 F.Supp.2d 613 (2006) (See also http://www.entertainmentlawreporter.com)
Republishing Defamatory Statements on the Internet is Protected Under the Communications Decency Act
Dr. Stephen J. Barrett and Dr. Terry Polevoy brought suit against Ilena Rosenthal for libel by maliciously distributing defamatory statements in e-mails and Internet postings on her website. Plaintiffs’ website was used to expose health fraud and Defendant allegedly republished several messages impugning their character and competence even after she was warned that the messages contained false and defamatory information.
The Court of Appeal vacated the trial court’s motion to strike under the anti-strategic lawsuit against public participation statute (Code Civ. Proc. § 425.16), as applied to one Plaintiff, holding that 47 U.S.C. § 230 applied to Defendant as a “distributor” under the common law of defamation.
The Supreme Court of California reversed the judgment of the Court of Appeal holding that § 230 prohibits “distributor” liability for Internet publications and that section (c)(1) of the Act immunizes individual users of interactive computer services and that no line can be drawn between active and passive use.
The Court stressed the fact that the holding of the Court of Appeals would cause a heavy burden on and tend to chill Internet speech.
Barrett v. Rosenthal, 40 Cal.4th 33 (2006) (See also http://www.courtinfo.ca.gov/
opinions/documents/S122953.PDF)
Thursday, November 30, 2006
CONGRATULATIONS TO OUR SUNDANCE FILMMAKERS
The line up for the 2007 Sundance Film Festival has been announced and we are pleased that seven of our clients have had their films selected:
Writer/Director Craig Brewer whose film “Hustle & Flow” was a big hit at Sundance two years ago, returns with “Black Snake Moan” starring Samuel Jackson, Justin Timberlake and Christina Ricci. Desire is a burning sickness for Rae, while making her the white-trash sexual target of every man and boy in her small Tennessee town. When her true love leaves for military service, Rae plunges into wild excess. Beaten and left for dead, she is taken in by a reformed bluesman, a private self-contained black man who nurses a deep anger of his own and who is fiercely committed to his task of keeping her alive. World Premiere.
“The Ten” produced by Jon Stern is comprised of ten stories, each inspired by one of The Ten Commandments, that illustrate the perils of modern life via extreme comedy. World Premiere.
“Padre Nuestro” produced by Ben Odell will be shown in Dramatic Competition. Fleeing a criminal past, Juan hops a truck transporting illegal immigrants from Mexico to New York City, where he meets Pedro, who is seeking his rich father. World Premiere.
“Expired” / U.S.A. by Director and Screenwriter Cecilia Miniucchi and producer Anthony Stutz: When a lonely, gentle meter maid meets a troubled fellow parking officer, their love affair becomes an awkward dance of attraction and antagonism. World Premiere.
“Fido” / Canada by Producers Blake Corbett and Mary Anne Waterhouse will be shown in the Park City at Midnight section. This zombie dog movie is about a six-foot tall zombie named Fido who eats the next-door neighbor. It is a boy-and-his-dog movie for grown ups.The film will be distributed by Lion’s Gate. Park City at Midnight . U.S Premiere.
THE TONIGHT SHOW” INTERVIEW WITH GOVERNOR SCHWARZENEGGER DOES NOT VIOLATE EQUAL TIME PROVISIONS.
According to the FCC, the Jay Leno's interview with California Governor Arnold Schwarzenegger on the "Tonight Show" was exempt from the equal time rule because it was a bona fide news segment. A FCC complaint was filed by the Angelides for Governor Campaign on behalf of Phil Angelides, the Democratic candidate for Governor of California, against eleven television stations. The Angelides campaign alleged that he was entitled to equal opportunities from the stations pursuant to Section 315 of the Communications Act of 1934. If a station allows a legally qualified candidate for public office to use a broadcast station, it must afford equal opportunities to other such candidates for that office to use its facilities. But there is an exception to this rule: appearances by legally qualified candidates on bona fide news programs.
While the Tonight Show is clearly more of an entertainment oriented program, than a typical newscast, it often airs newsworthy interviews. When adopting these exemptions, Congress indicated that, to qualify as a bona fide news interview program, a program must be regularly scheduled; the content, format, and participants must be determined by the licensee; and the determination that programming is a bona fide news interview must have been made by the station “in the exercise of its bona fide news judgment and not for the political advantage of the candidate for political office.”
Although Congress did not define “news” when adopting these exemptions, the Commission has found that interviews with elected officials and candidates for elected office are newsworthy subject matter. The FCC concluded that the interview segments of “The Tonight Show with Jay Leno” qualify for the bona fide news interview exemption and are therefore exempt from equal opportunities. In the Matter of Equal Opportunities Complaint Filed by Angelides for Governor Campaign, Federal Communications Commission Order (Oct. 26, 2006) http://www.fcc.gov/mb/
Writer/Director Craig Brewer whose film “Hustle & Flow” was a big hit at Sundance two years ago, returns with “Black Snake Moan” starring Samuel Jackson, Justin Timberlake and Christina Ricci. Desire is a burning sickness for Rae, while making her the white-trash sexual target of every man and boy in her small Tennessee town. When her true love leaves for military service, Rae plunges into wild excess. Beaten and left for dead, she is taken in by a reformed bluesman, a private self-contained black man who nurses a deep anger of his own and who is fiercely committed to his task of keeping her alive. World Premiere.
“The Ten” produced by Jon Stern is comprised of ten stories, each inspired by one of The Ten Commandments, that illustrate the perils of modern life via extreme comedy. World Premiere.
“Padre Nuestro” produced by Ben Odell will be shown in Dramatic Competition. Fleeing a criminal past, Juan hops a truck transporting illegal immigrants from Mexico to New York City, where he meets Pedro, who is seeking his rich father. World Premiere.
“Expired” / U.S.A. by Director and Screenwriter Cecilia Miniucchi and producer Anthony Stutz: When a lonely, gentle meter maid meets a troubled fellow parking officer, their love affair becomes an awkward dance of attraction and antagonism. World Premiere.
“Fido” / Canada by Producers Blake Corbett and Mary Anne Waterhouse will be shown in the Park City at Midnight section. This zombie dog movie is about a six-foot tall zombie named Fido who eats the next-door neighbor. It is a boy-and-his-dog movie for grown ups.The film will be distributed by Lion’s Gate. Park City at Midnight . U.S Premiere.
THE TONIGHT SHOW” INTERVIEW WITH GOVERNOR SCHWARZENEGGER DOES NOT VIOLATE EQUAL TIME PROVISIONS.
According to the FCC, the Jay Leno's interview with California Governor Arnold Schwarzenegger on the "Tonight Show" was exempt from the equal time rule because it was a bona fide news segment. A FCC complaint was filed by the Angelides for Governor Campaign on behalf of Phil Angelides, the Democratic candidate for Governor of California, against eleven television stations. The Angelides campaign alleged that he was entitled to equal opportunities from the stations pursuant to Section 315 of the Communications Act of 1934. If a station allows a legally qualified candidate for public office to use a broadcast station, it must afford equal opportunities to other such candidates for that office to use its facilities. But there is an exception to this rule: appearances by legally qualified candidates on bona fide news programs.
While the Tonight Show is clearly more of an entertainment oriented program, than a typical newscast, it often airs newsworthy interviews. When adopting these exemptions, Congress indicated that, to qualify as a bona fide news interview program, a program must be regularly scheduled; the content, format, and participants must be determined by the licensee; and the determination that programming is a bona fide news interview must have been made by the station “in the exercise of its bona fide news judgment and not for the political advantage of the candidate for political office.”
Although Congress did not define “news” when adopting these exemptions, the Commission has found that interviews with elected officials and candidates for elected office are newsworthy subject matter. The FCC concluded that the interview segments of “The Tonight Show with Jay Leno” qualify for the bona fide news interview exemption and are therefore exempt from equal opportunities. In the Matter of Equal Opportunities Complaint Filed by Angelides for Governor Campaign, Federal Communications Commission Order (Oct. 26, 2006) http://www.fcc.gov/mb/
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