June 4, 2001
Dept. of Commerce Issues Report on Runaway Production
Last year Congress asked the U.S. Dept. of Commerce to study the impact of runaway productions on the U.S. film industry. The report has now been completed and it findings are no big surprise: the number of films shot abroad for economic reasons increased dramatically from 100 films in 1990 to 285 films in 1998, an increase of 185% over eight years.
The report states that there are many reasons that American films are increasingly produced abroad including incentive programs offered by foreign governments. An entire 15 page chapter is devoted to the incentive programs offered by leading destination countries. The reports contains a useful two-page chart detailing the 30 programs offered in Canada.
The report is titled “The Migration of U.S. Film and Television Production: Impact of Runaways on Workers and Small Business in the U.S. Film Industry,U.S. Dept. of Commerce,” and is available at http://www.ita.doc.gov/media/filmreport.htm
Congratulations to Our Clients
With the threat of possible WGA and SAG strikes, many of our filmmaking clients have been rushing to get into production before possible strikes could take place. Congratulations to producer Harvey Kahn who began production of “Pressure.” The feature is a thriller starring Kerr Smith (Dawson’s Creek) and Angela Featherstone, and is directed by our client Richard Gale (“The Proposal”) and written by our clients Gale and Craig Brewer.
Writer/Director Daniel McCarthy has began production on the feature film “Irish Eyes Are Crying” a drama starring Daniel Baldwin. The shoot takes place in New Brunswick, Canada, and is produced by McCarthy and Julian Valdes.Congratulations also to Dennis Fallon who begins production June 4th on “Silence” starring Christine Swanson and Vincent Spano. The shoot takes place in Kansas City, Missouri and is directed by Tom Whit
Monday, June 04, 2001
Thursday, March 29, 2001
SELF DEFENSE FOR SCREENWRITERS
March 29, 2001
NEW ARTICLE: SELF DEFENSE FOR SCREENWRITERS
As an entertainment attorney I am often called upon to assist writers who have gotten themselves into trouble because they don’t understand how their work infringes the rights of others. A writer who learns the fine points of the law through trial and error is receiving an expensive education. I have written an article that was recently published by Screentalk Magazine (www.screentalk.org) and is now posted on my website.
TROUBLE FROM PEOPLE PORTRAYED IN YOUR WORK
I. FICTIONAL CHARACTERS
If your script or film contains fictional characters -- characters from your imagination -- you generally do not need to obtain any permissions or releases. However, if there is a chance that the public could mistake your imaginary characters for real people, you could be liable if you have thereby infringed their rights.
You can protect yourself by making sure your fictional characters cannot be mistaken for real people. Give characters unusual names that no living individual would have. Check the phone book to see if any people with your character’s name reside at the location portrayed in your story. If there is a person in that community with the same name or a similar one, consider changing the locale or setting the story in a fictional locale. Add a disclaimer at the beginning of the film stating that any resemblance to persons living or dead is purely coincidental.
To read the rest of the article go to: www.marklitwak.com
NEW ARTICLE: SELF DEFENSE FOR SCREENWRITERS
As an entertainment attorney I am often called upon to assist writers who have gotten themselves into trouble because they don’t understand how their work infringes the rights of others. A writer who learns the fine points of the law through trial and error is receiving an expensive education. I have written an article that was recently published by Screentalk Magazine (www.screentalk.org) and is now posted on my website.
TROUBLE FROM PEOPLE PORTRAYED IN YOUR WORK
I. FICTIONAL CHARACTERS
If your script or film contains fictional characters -- characters from your imagination -- you generally do not need to obtain any permissions or releases. However, if there is a chance that the public could mistake your imaginary characters for real people, you could be liable if you have thereby infringed their rights.
You can protect yourself by making sure your fictional characters cannot be mistaken for real people. Give characters unusual names that no living individual would have. Check the phone book to see if any people with your character’s name reside at the location portrayed in your story. If there is a person in that community with the same name or a similar one, consider changing the locale or setting the story in a fictional locale. Add a disclaimer at the beginning of the film stating that any resemblance to persons living or dead is purely coincidental.
To read the rest of the article go to: www.marklitwak.com
Monday, January 08, 2001
TIGER WOODS LOSES TRADEMARK AND RIGHT OF PUBLICITY ACTION AGAINST ARTIST WHO CREATED LIMITED EDITION POSTER DEPICTING HIM
January 8, 2001
TIGER WOODS LOSES TRADEMARK AND RIGHT OF PUBLICITY ACTION AGAINST ARTIST WHO CREATED LIMITED EDITION POSTER DEPICTING HIM
Rick Rush, a sports artist, created a print featuring renowned golfer Tiger Woods. Woods licensing agent, ETW Corp., brought suit to stop distribution of this print.
The court found that ETW had failed to show that it had any trademark rights to the image of Tiger Woods since his image was not used as a mark. While a specific image or photo of a person can function as a trademark if it is consistently used to identify a source of product, this does not mean that any of a variety of different images of a person will each be given protection as a trademark. The court also dismissed the action for violation of right of publicity under Ohio law stating that the artist’s expression was constitutionally protected under the First Amendment.
CHANGES IN EMPLOYMENT OF MINORS
Minor and their parents planning a career in show biz should be aware of some recent changes in California law. As of Jan. 1, 2000, money must be set aside in a blocked account for all children working in the entertainment industry. This includes musicians, actors and those working in non-union productions. In the past this requirement only applied to court-approved contracts. SAG's website contains useful information including the SAG/AFTRA Young Performers Handbook (http://www.sag.org/youngpersons.html). Parents can have their questions answered by calling the SAG Child Actor Hotline.
TIGER WOODS LOSES TRADEMARK AND RIGHT OF PUBLICITY ACTION AGAINST ARTIST WHO CREATED LIMITED EDITION POSTER DEPICTING HIM
Rick Rush, a sports artist, created a print featuring renowned golfer Tiger Woods. Woods licensing agent, ETW Corp., brought suit to stop distribution of this print.
The court found that ETW had failed to show that it had any trademark rights to the image of Tiger Woods since his image was not used as a mark. While a specific image or photo of a person can function as a trademark if it is consistently used to identify a source of product, this does not mean that any of a variety of different images of a person will each be given protection as a trademark. The court also dismissed the action for violation of right of publicity under Ohio law stating that the artist’s expression was constitutionally protected under the First Amendment.
CHANGES IN EMPLOYMENT OF MINORS
Minor and their parents planning a career in show biz should be aware of some recent changes in California law. As of Jan. 1, 2000, money must be set aside in a blocked account for all children working in the entertainment industry. This includes musicians, actors and those working in non-union productions. In the past this requirement only applied to court-approved contracts. SAG's website contains useful information including the SAG/AFTRA Young Performers Handbook (http://www.sag.org/youngpersons.html). Parents can have their questions answered by calling the SAG Child Actor Hotline.
Sunday, April 16, 2000
New California Law Seeks to Protect Minors and Extend Rights of Publicity
Spring 2000
NEW CALIFORNIA LAWS SEEK TO PROTECT MINORS AND EXTEND RIGHTS OF PUBLICITY
California Governor Gray Davis has recently signed several pieces of legislation affecting the entertainment industry. Entertainment employers are now required to pay 15 percent of a minor's personal-services earnings into a trust account. Minors can take control of trust account monies when they turn 18. The Celebrity Image Protection Act increases the right of publicity enforceable by a celebrity's heir from 50 years after death to 70 years after death.
HOW TO THINK LIKE AN INVESTOR
The most recent edition of MovieMaker magazine contains an article I have written titled "How to Attract Capital to Your Movie by Thinking Like an Investor." The piece explains how financiers evaluate projects and decide which ones to back. It includes a checklist I developed for movie investors. The article has been posted on my website: www.marklitwak.com
INTERNET DISTRIBUTION - THE PROMISE AND THE PITFALLS
Here is an excerpt from an article I have written on Internet Distribution of motion pictures. A more extensive version will be appear in the next issue of MovieMaker Magazine. After publication the article will be posted on my website.
With the rapid development of web sites designed to distribute motion pictures directly to consumers, many producers are being asked to grant "Internet" rights to their films. The grant of such rights raises a number of new and interesting issues.
The distribution agreement needs to define "Internet" rights. Is the distributor selling cassettes via the Internet? If so, the right is in the nature of a home video right--the Internet is just being used to market cassettes. But will the grant to an Italian company permit it to sell videocassettes to a buyer who logs onto the Internet from France?
Another "Internet" right is the right to distribute a motion picture via streaming media. Here the distributor is actually transmitting the motion picture over the Internet. This has been called "Netcasting." In the next few years new technologies will enable an increasing number of computer users to watch movies over the Internet with viewing quality comparable to television. Thus, movies can be distributed directly to the end user, bypassing such traditional intermediaries as the broadcast networks, home video retailers, and cable operators.
The economic viability of Internet distribution is unproven at this time. Keep in mind that traditional distributors perform an important marketing function that an Internet distributor may not be able to replace. While Internet distribution is of questionable profitability, there is no doubt that the distribution of your film over the Internet can jeopardize agreements with traditional distributors. If HBO is willing to license your film, how do you think the cable channel will react when you try to reserve the right to simultaneously distribute your movie over the Internet?
For the aforementioned reasons, it is prudent for producers to hold onto their Internet rights until the dust settles. If a distributor insists on obtaining Internet rights, or if you want to be a trailblazer, consider the following:
EXCLUSIVITY: Will the grant of rights be on an exclusive or nonexclusive basis? At this time it is not clear which Internet sites will prosper and which ones will crash and burn. If you grant exclusive rights to a company that goes out of business, your Internet rights may be tied up in bankruptcy proceedings.
TERRITORY: Territory becomes an almost meaningless term when applied to Internet distribution. Anyone with a computer anywhere in the world can log onto the Internet and download data from computer servers wherever they are located. Even if you attempt to restrict distribution, how can you or the distributor prevent distribution outside the territory?
ROYALTIES: No standard has been established as to how to divide revenue from Internet distribution. A popular model for Internet companies is to give information away for free, and generate revenue from the sale of advertising and ancillary services. If your movie is being given away for free, and the Internet distributor retains all revenue from advertising, how do you benefit?
The deals that have been concluded to date are all over the spectrum. Broadcast.com licensed 50 Trimark titles as part of a broader pact in which Broadcast.com acquired a $4 million dollar stake in Trimark. Sightsound.com acquired a limited 30 day pay-per-view Internet window to Artisan Entertainment's Pi in a straight licensing deal. MovieFlix.com offers about 150 features acquired from indie distributors. The company pays a one time license fee. The site is advertiser supported and sells movie memorabilia.
GRANT OF RIGHTS: Do you have the authority to grant Internet rights? Do your contracts to obtain the script, music and stock footage grant you the right to distribute the work over the Internet? Note that many contracts don't explicitly grant "Internet" rights because when the contracts were drafted no one was thinking in terms of the Internet as a distribution media.
If, after reviewing the above issues, you are inclined to license Internet rights, consider the following: many distributors seeking Internet rights have never distributed anything over the Internet. Such companies may be warehousing your rights in the hope that they will become valuable some day. That day may not be soon. Artisan Entertainment's Netcast of Pi attracted an on-line audience of only 100.
NEW CALIFORNIA LAWS SEEK TO PROTECT MINORS AND EXTEND RIGHTS OF PUBLICITY
California Governor Gray Davis has recently signed several pieces of legislation affecting the entertainment industry. Entertainment employers are now required to pay 15 percent of a minor's personal-services earnings into a trust account. Minors can take control of trust account monies when they turn 18. The Celebrity Image Protection Act increases the right of publicity enforceable by a celebrity's heir from 50 years after death to 70 years after death.
HOW TO THINK LIKE AN INVESTOR
The most recent edition of MovieMaker magazine contains an article I have written titled "How to Attract Capital to Your Movie by Thinking Like an Investor." The piece explains how financiers evaluate projects and decide which ones to back. It includes a checklist I developed for movie investors. The article has been posted on my website: www.marklitwak.com
INTERNET DISTRIBUTION - THE PROMISE AND THE PITFALLS
Here is an excerpt from an article I have written on Internet Distribution of motion pictures. A more extensive version will be appear in the next issue of MovieMaker Magazine. After publication the article will be posted on my website.
With the rapid development of web sites designed to distribute motion pictures directly to consumers, many producers are being asked to grant "Internet" rights to their films. The grant of such rights raises a number of new and interesting issues.
The distribution agreement needs to define "Internet" rights. Is the distributor selling cassettes via the Internet? If so, the right is in the nature of a home video right--the Internet is just being used to market cassettes. But will the grant to an Italian company permit it to sell videocassettes to a buyer who logs onto the Internet from France?
Another "Internet" right is the right to distribute a motion picture via streaming media. Here the distributor is actually transmitting the motion picture over the Internet. This has been called "Netcasting." In the next few years new technologies will enable an increasing number of computer users to watch movies over the Internet with viewing quality comparable to television. Thus, movies can be distributed directly to the end user, bypassing such traditional intermediaries as the broadcast networks, home video retailers, and cable operators.
The economic viability of Internet distribution is unproven at this time. Keep in mind that traditional distributors perform an important marketing function that an Internet distributor may not be able to replace. While Internet distribution is of questionable profitability, there is no doubt that the distribution of your film over the Internet can jeopardize agreements with traditional distributors. If HBO is willing to license your film, how do you think the cable channel will react when you try to reserve the right to simultaneously distribute your movie over the Internet?
For the aforementioned reasons, it is prudent for producers to hold onto their Internet rights until the dust settles. If a distributor insists on obtaining Internet rights, or if you want to be a trailblazer, consider the following:
EXCLUSIVITY: Will the grant of rights be on an exclusive or nonexclusive basis? At this time it is not clear which Internet sites will prosper and which ones will crash and burn. If you grant exclusive rights to a company that goes out of business, your Internet rights may be tied up in bankruptcy proceedings.
TERRITORY: Territory becomes an almost meaningless term when applied to Internet distribution. Anyone with a computer anywhere in the world can log onto the Internet and download data from computer servers wherever they are located. Even if you attempt to restrict distribution, how can you or the distributor prevent distribution outside the territory?
ROYALTIES: No standard has been established as to how to divide revenue from Internet distribution. A popular model for Internet companies is to give information away for free, and generate revenue from the sale of advertising and ancillary services. If your movie is being given away for free, and the Internet distributor retains all revenue from advertising, how do you benefit?
The deals that have been concluded to date are all over the spectrum. Broadcast.com licensed 50 Trimark titles as part of a broader pact in which Broadcast.com acquired a $4 million dollar stake in Trimark. Sightsound.com acquired a limited 30 day pay-per-view Internet window to Artisan Entertainment's Pi in a straight licensing deal. MovieFlix.com offers about 150 features acquired from indie distributors. The company pays a one time license fee. The site is advertiser supported and sells movie memorabilia.
GRANT OF RIGHTS: Do you have the authority to grant Internet rights? Do your contracts to obtain the script, music and stock footage grant you the right to distribute the work over the Internet? Note that many contracts don't explicitly grant "Internet" rights because when the contracts were drafted no one was thinking in terms of the Internet as a distribution media.
If, after reviewing the above issues, you are inclined to license Internet rights, consider the following: many distributors seeking Internet rights have never distributed anything over the Internet. Such companies may be warehousing your rights in the hope that they will become valuable some day. That day may not be soon. Artisan Entertainment's Netcast of Pi attracted an on-line audience of only 100.
Friday, November 15, 1996
Dealmaking wins Book Award, Fall 1996
Fall 1996
BOOK AWARD
My book, "Dealmaking in the Film & Television," (Silman-James Press) won the Kraszna-Krausz Book Award for the best book on the movie business. 180 books from 8 countries competed for 3 top prizes of £10,000 ($15,000) apiece. Twelve finalists were invited to London to attend the award ceremony on February 1st at the Royal Society of Arts. The awards were presented by Sir Sydney Samuelson, the British Film Commissioner. A reception and dinner followed. I attended with my wife, and we brought our children along for a week's vacation touring London. "Dealmaking" won the top prize in the business category; the other winners were Nicholas Negroponte for "Being Digital," in the Techniques and Technology category, and Robert Sklar for "Film: An International History of the Medium" in the Culture category. The award was a surprise for me as my publisher had submitted the book for consideration without my knowledge. I first learned of the award when I was called in January and invited to attend the ceremony. The Kraszna-Krausz Awards are sponsored by the Kraszna-Krausz Foundation, formed by Andor Kraszna-Krausz, a native Hungarian who arrived in London in 1938 and founded Focal Press.
BOOK AWARD
My book, "Dealmaking in the Film & Television," (Silman-James Press) won the Kraszna-Krausz Book Award for the best book on the movie business. 180 books from 8 countries competed for 3 top prizes of £10,000 ($15,000) apiece. Twelve finalists were invited to London to attend the award ceremony on February 1st at the Royal Society of Arts. The awards were presented by Sir Sydney Samuelson, the British Film Commissioner. A reception and dinner followed. I attended with my wife, and we brought our children along for a week's vacation touring London. "Dealmaking" won the top prize in the business category; the other winners were Nicholas Negroponte for "Being Digital," in the Techniques and Technology category, and Robert Sklar for "Film: An International History of the Medium" in the Culture category. The award was a surprise for me as my publisher had submitted the book for consideration without my knowledge. I first learned of the award when I was called in January and invited to attend the ceremony. The Kraszna-Krausz Awards are sponsored by the Kraszna-Krausz Foundation, formed by Andor Kraszna-Krausz, a native Hungarian who arrived in London in 1938 and founded Focal Press.
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