June 12, 2003
In this newsletter:
"FINANCING MOTION PICTURES" EXCERPT AVAILABLE ON MARKLITWAK.COM
One of the most frequent questions filmmakers ask is, "How do I structure financing for my film project?" At marklitwak.com, you can now read an excerpt from Mark's upcoming book Risky Business, Financing and Distributing Independent Films, which addresses the question.
DISCOUNTED REGISTRATION AVAILABLE FOR Hollywood Finance and Distribution Market, JULY 19–20
On July 19 and 20, the Hollywood Film Festival will provide independent filmmakers with the opportunity to learn about finance and distribution opportunities. Those who register by June 15 will pay $145. After June 15, the registration fee is $295.
The two-day event will cover such topics as international co-productions, subsidies, and production incentives; distribution channels; how soon is too soon to promote or market a film; and the future of film financing.
In addition, filmmakers will have the chance to discuss their projects with agents, studio execs and distributors in 30-minute round tables.
The full schedule of events and details can be found athttp://www.hollywoodawards.com/conference/market.html
Court decision puts IMPLIED-IN-FACT CONTRACTS under scrutiny
by Chrys Wu, Paralegal to Mark Litwak
Common scenario: A production company comes up with an idea and wants to pursue it with a large corporation. The production company gets in touch with a corporation rep to discuss the idea. Instead of hearing a pitch off the cuff, the corporation schedules a pitch meeting to hear the idea.
In some industries, when a pitch meeting is scheduled at the corporation's request, it's generally accepted that the invited production company will be compensated for the ideas it presents if its ideas or materials are used. When the corporation invites someone to pitch, the pitch meeting becomes, in effect, an implied contract, and an implied contract, according to case law, does not require an express oral or written representation of compensation.
Implied contracts always run the danger of being denied by one of the parties involved. Such was the case when animation company Gunther-Wahl Productions accused Mattel of stealing its ideas for a line of girls' toys after Mattel invited Gunther-Wahl to pitch. Claiming breach of implied-in-fact contract, Gunther-Wahl sought compensation.
At trial, the jury was given instructions that proved to be confusing, even though the instructions are similar to those given in implied contract cases since the 1956 landmark decision in Desny v. Wilder.
According to one of these instructions, the jury had to find that Gunther-Wahl "clearly conditioned their disclosure (of their ideas) on Mattel's agreement to pay Gunther-Wahl" if Mattel used any portion or the whole of its pitched concept.
The Appeals court found these instructions ran contrary to case law and basically forced the jury to rule against Gunther-Wahl. The Court therefore reversed the judgment against Gunther-Wahl, allowing the lower court to retry the case.
Gunther-Wahl Productions, Inc. v. Mattel, Inc., 128 Cal.Rptr.2d 50, 2002 Cal.App.LEXIS 5097 (Cal.App. 2002), review denied, 2003 Cal.LEXIS 1144 (Cal. 2003)
Thursday, June 12, 2003
Thursday, June 05, 2003
Small distributor triumphs over 20th century fox in court
June 5, 2003
In this newsletter:
Mark Litwak to Lecture at University OF HAWAII jUNE 21-22
Mark Litwak will be teaching two of his most popular courses at the University of Hawaii at Manoa.
"Self-defense for Writers & Filmmakers" will be held June 21. This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights and by encouraging the other party to live up to agreements by adding performance milestones, default penalties and arbitration clauses. Participants will also learn what remedies are available to enforce their rights in the event of a dispute.
For more information and registration for this class, click here: http://www.outreach.hawaii.edu/programs/2003/EVENT-L06013.htm
"Financing and Distributing Independent Features" will be held June 22. This seminar explores how independent films are financed and distributed. The seminar includes an extensive handout with a long-form distribution contract, checklists and other materials useful in preparing to raise cash and distribute your film.
For more information and registration for this class, click here: http://www.outreach.hawaii.edu/programs/2003/EVENT-L06014.htm
Hollywood Finance and Distribution Market AT DOUBLETREE HOTEL, JULY 19–20
Want to know how industry insiders approach financing and distribution? Wonder how you can improve your distributor and studio execs think your project's chances are?
On July 19 – 20, the Hollywood Film Festival will provide independent filmmakers with the opportunity to learn about finance and distribution opportunities from organizations such as Buena Vista Studios, Regent Entertainment, Initial Entertainment Group, iFilm, Paramount Classics, Miramax Films, Lions Gate Films Releasing, and Laemmle Theatres.
The two day event will cover such topics as international co-productions, subsidies, and production incentives; distribution channels; how soon is too soon to promote or market a film; and the future of film financing.
In addition, filmmakers will have the opportunity to discuss their projects with agents, studio execs and distributors in 30-minute roundtables. The full schedule of events and details can be found at http://www.hollywoodawards.com/conference/market.html.
Small distributor triumphs over 20th century fox in court
by Chrys Wu, Paralegal to Mark Litwak
The U.S. Supreme Court gave one to the little guy on Monday, June 2. Fox had attempted to stop the defendant, Dastar Corporation, from distributing a program that had gone into the public domain by relying on unfair competition law since copyright law no longer protected the work. Under copyright law, once a copyright expires, others are free to copy and distribute the work without restriction. Unlike copyright law, which provides for a limited term of protection, a trademark can last indefinitely, provided the mark stays in use. Fox attempted to stop Dastar from duplicating and distributing footage from a program that was once under copyright to Fox, by asserting that Dastar had violated unfair competition laws by distributing this material under Dastar's name, and not crediting the origin of the work to Fox.
If Fox had prevailed with this line of reasoning, then unfair competition laws would be able to restrict the use of works that were no longer copyrighted.
Key to the Supreme Court's decision was determining the definition of the phrase "origin of goods" as used in the §43(a) of the Lanham Act.
In the late 1940s, 20th Century Fox was granted exclusive television rights to a book by General Dwight D. Eisenhower. Fox arranged for Time, Inc. to produce a TV series based on the book. Time assigned the TV series copyright to Fox and Fox first broadcast the series 1949.
In 1975, Doubleday renewed the book's copyright. Fox, however, did not renew the TV series copyright and the series fell into the public domain in 1977. In 1988, Fox reacquired television rights to the book, including the exclusive right to distribute the TV series on video and to sub-license that right. The sub-licensors then began to repackage and resell the 1949 TV series.
In 1995, Dastar released its own set of World War II videotapes based in part on the 1949 TV series now in the public domain. Dastar did not attribute the portions of the public domain footage to Fox or its sub-licensors and they, claiming reverse passing off in violation of Section 43(a) of the Lanham Act.
The lower courts ruled in Fox's favor, saying that because a substantial portion of Dastar's videotape series was based on the 1949 Fox television series, the public was likely to be "deceived or confused" about the origins of the Dastar video content.
The Supreme Court ruled that had Dastar bought some of the sub-licensors new tapes and simply repackaged them as Dastar's own, they would surely have been in violation of the Act.
In this case, the Court wrote, Dastar had taken work from the 1949 TV series, which is in the public domain, made additional changes and produced its own video series, resulting in a new "origin of goods."
Writing for the Court, Justice Antonin Scalia determined that "origin of goods" referred to the producer of a tangible product sold in the marketplace. However it would be impossible for this phrase to refer to "the person or entity that originated the ideas or communications that 'goods' embody or contain," as it would conflict with the Act's purpose – which is to make "actionable the deceptive and misleading use of marks" and "to protect persons engaged in … commerce against unfair competition."
Furthermore, if one had to trace the "origin of goods" to uncopyrighted materials, such the public domain work in this case, "'origin' has no discernable limits," the Court wrote. By example, the Court traced one possible attribution sequence for the MGM film, "Carmen Jones." If uncopyrighted materials had to be attributed for this film after its copyright expired, not only would attribution be made to MGM, but also to Oscar Hammerstein II, who wrote the musical on which the film was based; and to Georges Bizet, who wrote the opera on which the musical was based; and to Prosper Mérimée, who wrote the novel on which the opera was based.
"We do not think the Lanham Act requires this search for the source of the Nile and all is tributaries," the Court concluded. Ruling that trademark law, as embodied in the Lanham Act, does not prevent the unaccredited copying of a work in the public domain, the high court reversed a decision against music and video distributor Dastar Corporation, sending the case back to the lower court for further review.
Dastar Corporation v. Twentieth Century Fox Film Corporation et al., S.Ct. No. 02-428
In this newsletter:
Mark Litwak to Lecture at University OF HAWAII jUNE 21-22
Mark Litwak will be teaching two of his most popular courses at the University of Hawaii at Manoa.
"Self-defense for Writers & Filmmakers" will be held June 21. This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights and by encouraging the other party to live up to agreements by adding performance milestones, default penalties and arbitration clauses. Participants will also learn what remedies are available to enforce their rights in the event of a dispute.
For more information and registration for this class, click here: http://www.outreach.hawaii.edu/programs/2003/EVENT-L06013.htm
"Financing and Distributing Independent Features" will be held June 22. This seminar explores how independent films are financed and distributed. The seminar includes an extensive handout with a long-form distribution contract, checklists and other materials useful in preparing to raise cash and distribute your film.
For more information and registration for this class, click here: http://www.outreach.hawaii.edu/programs/2003/EVENT-L06014.htm
Hollywood Finance and Distribution Market AT DOUBLETREE HOTEL, JULY 19–20
Want to know how industry insiders approach financing and distribution? Wonder how you can improve your distributor and studio execs think your project's chances are?
On July 19 – 20, the Hollywood Film Festival will provide independent filmmakers with the opportunity to learn about finance and distribution opportunities from organizations such as Buena Vista Studios, Regent Entertainment, Initial Entertainment Group, iFilm, Paramount Classics, Miramax Films, Lions Gate Films Releasing, and Laemmle Theatres.
The two day event will cover such topics as international co-productions, subsidies, and production incentives; distribution channels; how soon is too soon to promote or market a film; and the future of film financing.
In addition, filmmakers will have the opportunity to discuss their projects with agents, studio execs and distributors in 30-minute roundtables. The full schedule of events and details can be found at http://www.hollywoodawards.com/conference/market.html.
Small distributor triumphs over 20th century fox in court
by Chrys Wu, Paralegal to Mark Litwak
The U.S. Supreme Court gave one to the little guy on Monday, June 2. Fox had attempted to stop the defendant, Dastar Corporation, from distributing a program that had gone into the public domain by relying on unfair competition law since copyright law no longer protected the work. Under copyright law, once a copyright expires, others are free to copy and distribute the work without restriction. Unlike copyright law, which provides for a limited term of protection, a trademark can last indefinitely, provided the mark stays in use. Fox attempted to stop Dastar from duplicating and distributing footage from a program that was once under copyright to Fox, by asserting that Dastar had violated unfair competition laws by distributing this material under Dastar's name, and not crediting the origin of the work to Fox.
If Fox had prevailed with this line of reasoning, then unfair competition laws would be able to restrict the use of works that were no longer copyrighted.
Key to the Supreme Court's decision was determining the definition of the phrase "origin of goods" as used in the §43(a) of the Lanham Act.
In the late 1940s, 20th Century Fox was granted exclusive television rights to a book by General Dwight D. Eisenhower. Fox arranged for Time, Inc. to produce a TV series based on the book. Time assigned the TV series copyright to Fox and Fox first broadcast the series 1949.
In 1975, Doubleday renewed the book's copyright. Fox, however, did not renew the TV series copyright and the series fell into the public domain in 1977. In 1988, Fox reacquired television rights to the book, including the exclusive right to distribute the TV series on video and to sub-license that right. The sub-licensors then began to repackage and resell the 1949 TV series.
In 1995, Dastar released its own set of World War II videotapes based in part on the 1949 TV series now in the public domain. Dastar did not attribute the portions of the public domain footage to Fox or its sub-licensors and they, claiming reverse passing off in violation of Section 43(a) of the Lanham Act.
The lower courts ruled in Fox's favor, saying that because a substantial portion of Dastar's videotape series was based on the 1949 Fox television series, the public was likely to be "deceived or confused" about the origins of the Dastar video content.
The Supreme Court ruled that had Dastar bought some of the sub-licensors new tapes and simply repackaged them as Dastar's own, they would surely have been in violation of the Act.
In this case, the Court wrote, Dastar had taken work from the 1949 TV series, which is in the public domain, made additional changes and produced its own video series, resulting in a new "origin of goods."
Writing for the Court, Justice Antonin Scalia determined that "origin of goods" referred to the producer of a tangible product sold in the marketplace. However it would be impossible for this phrase to refer to "the person or entity that originated the ideas or communications that 'goods' embody or contain," as it would conflict with the Act's purpose – which is to make "actionable the deceptive and misleading use of marks" and "to protect persons engaged in … commerce against unfair competition."
Furthermore, if one had to trace the "origin of goods" to uncopyrighted materials, such the public domain work in this case, "'origin' has no discernable limits," the Court wrote. By example, the Court traced one possible attribution sequence for the MGM film, "Carmen Jones." If uncopyrighted materials had to be attributed for this film after its copyright expired, not only would attribution be made to MGM, but also to Oscar Hammerstein II, who wrote the musical on which the film was based; and to Georges Bizet, who wrote the opera on which the musical was based; and to Prosper Mérimée, who wrote the novel on which the opera was based.
"We do not think the Lanham Act requires this search for the source of the Nile and all is tributaries," the Court concluded. Ruling that trademark law, as embodied in the Lanham Act, does not prevent the unaccredited copying of a work in the public domain, the high court reversed a decision against music and video distributor Dastar Corporation, sending the case back to the lower court for further review.
Dastar Corporation v. Twentieth Century Fox Film Corporation et al., S.Ct. No. 02-428
Friday, May 23, 2003
Mark Litwak to Lecture at University of HAWAII
May23, 2003
In this newsletter:
Hollywood Finance and Distribution Market AT DOUBLETREE HOTEL, JULY 19–20
Want to know how industry insiders approach financing and distribution? Have you wanted to ask distributor and studio execs what your project’s chances are?
On July 19 – 20, the Hollywood Film Festival will provide independent filmmakers with the opportunity to learn about finance and distribution opportunities from organizations such as Buena Vista Studios, Regent Entertainment, Initial Entertainment Group, iFilm, Paramount Classics, Miramax Films, Lions Gate Films Releasing, and Laemmle Theatres.
The two day event will cover such topics as international co-productions, subsidies, and production incentives; distribution channels; how soon is too soon to promote or market a film; and the future of film financing.
In addition, filmmakers will have the opportunity to discuss their projects with agents, studio execs and distributors in 30-minute roundtables. The full schedule of events and details can be found at: http://www.hollywoodawards.com/conference/market.html#session
Mark Litwak to Lecture at University OF HAWAII In JUNE
Mark Litwak will be teaching two of his most popular courses at the University of Hawaii at Manoa.
"Self-defense for Writers & Filmmakers" will be held June 21. This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights and by encouraging the other party to live up to agreements by adding performance milestones, default penalties and arbitration clauses. Participants will also learn what remedies are available to enforce their rights in the event of a dispute.
For more information and registration for this class, click here: http://www.outreach.hawaii.edu/programs/2003/EVENT-L06013.htm
"Financing and Distributing Independent Features" will be held June 22. This seminar explores how independent films are financed and distributed. The seminar includes an extensive handout with a long-form distribution contract, checklists and other materials useful in preparing to raise cash and distribute your film.
For more information and registration for this class, click here: http://www.outreach.hawaii.edu/programs/2003/EVENT-L06014.htm
In this newsletter:
Hollywood Finance and Distribution Market AT DOUBLETREE HOTEL, JULY 19–20
Want to know how industry insiders approach financing and distribution? Have you wanted to ask distributor and studio execs what your project’s chances are?
On July 19 – 20, the Hollywood Film Festival will provide independent filmmakers with the opportunity to learn about finance and distribution opportunities from organizations such as Buena Vista Studios, Regent Entertainment, Initial Entertainment Group, iFilm, Paramount Classics, Miramax Films, Lions Gate Films Releasing, and Laemmle Theatres.
The two day event will cover such topics as international co-productions, subsidies, and production incentives; distribution channels; how soon is too soon to promote or market a film; and the future of film financing.
In addition, filmmakers will have the opportunity to discuss their projects with agents, studio execs and distributors in 30-minute roundtables. The full schedule of events and details can be found at: http://www.hollywoodawards.com/conference/market.html#session
Mark Litwak to Lecture at University OF HAWAII In JUNE
Mark Litwak will be teaching two of his most popular courses at the University of Hawaii at Manoa.
"Self-defense for Writers & Filmmakers" will be held June 21. This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights and by encouraging the other party to live up to agreements by adding performance milestones, default penalties and arbitration clauses. Participants will also learn what remedies are available to enforce their rights in the event of a dispute.
For more information and registration for this class, click here: http://www.outreach.hawaii.edu/programs/2003/EVENT-L06013.htm
"Financing and Distributing Independent Features" will be held June 22. This seminar explores how independent films are financed and distributed. The seminar includes an extensive handout with a long-form distribution contract, checklists and other materials useful in preparing to raise cash and distribute your film.
For more information and registration for this class, click here: http://www.outreach.hawaii.edu/programs/2003/EVENT-L06014.htm
Friday, May 16, 2003
GROKSTER, MORPHEUS DO NOT INFRINGE COPYRIGHT SAYS CALIFORNIA COURT
May 16, 2003
This Newsletter:
NEW: FILMMAKER INCENTIVE INFORMATION AVAILABLE ONLINE
In deciding where to shoot, cost is always a factor. Most states and several countries offer a variety of tax breaks, rebates and co-production funds to encourage television, film and commercial production companies to film on location and in state.
We have compiled a summary of U.S. and international filmmaker incentives which are now available online at http://www.marklitwak.com/ under "Filmmaker Incentive Programs." Since these programs are subject to change, confirm the terms of each program by contacting the film offices to get the latest information
GROKSTER, MORPHEUS DO NOT INFRINGE COPYRIGHT SAYS CALIFORNIA COURT
By Chrys Wu, Paralegal to Mark Litwak
A recent California District Court decision has dismissed a copyright infringement lawsuit against two distributors of heavily-used peer-to-peer software that allows users to trade files over the Internet.
Film studios and music publishers sought to block Grokster Ltd. and Streamcast Networks, Inc. from distributing their popular Morpheus and Grokster programs, claiming that the companies were liable for 1) contributory infringement and 2) vicarious infringement of movie and music copyrights.
Citing heavily from A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2nd 896 (N.D. Cal. 2000), and drawing a key distinction between Napster's distribution methods and the methods used by Morpheus and Grokster, U.S. District Judge Stephen Wilson ruled that neither Streamcast nor Grokster were liable for the two causes of action lodged against them.
To prove contributory infringement, the studios and publishers had to show that defendants knew of specific acts of infringement and could act to stop those particular acts; and that the companies made an "active and substantial contribution" to the infringment by encouraging or assisting its users in wrongdoing.
The defendants could not have had actual knowledge of the specific instances of copyright infringement, the court reasoned, because the programs operate on a peer-to-peer network that allows users to trade files without going through any central server owned and operated by the defendants.
The court also noted that Streamcast and Grokster Inc. merely distributed their software programs, which can be used for both unlawful and lawful purposes such as trading government documents, e-books, free music and software, and files in the public domain, a fact acknowledged by the plaintiffs. Citing Napster, the court wrote that Defendants' liability could not be established "merely because peer-to-peer file-sharing technology may be used to infringe plaintiff's copyrights." Plaintiffs were unable to prove that defendants materially contributed to copyright infringement, other than by distributing the software in the first place.
To prove vicarious infringement, plaintiffs had to show that defendants received financial benefit from the infringement, and had the right and ability to supervise the infringing conduct. Unlike contributory infringement, defendants do not have to be aware of the infringement.
For this cause of action, the court decided that defendants received significant financial benefit by distributing the software, which contains advertisements. The more copies distributed, the more advertising revenues they'd recoup. And since many users download Grokster and Morpheus for the express purpose of trading copyrighted files, "a significant portion of Defendants' advertising revenue depends upon the infringement," the court concluded.
However, the court again noted the important distinction that prevented Grokster and Streamcast from assuming the "right and ability " to supervise the infringing conduct. Because the programs operate on a peer-to-peer basis, "Defendants provide software that communicates across networks that are entirely outside Defendants control," wrote the court.
Based on these findings, the court granted summary judgment to Grokster and Streamcast. An appeal is expected.
HOW TO REDUCE SPAM
If feel overwhelmed by spam, junk mail and telephone solicitations, there are several steps you can take to reduce the flow.
The California Department of Justice is now accepting email addresses on their do not call list. This allows one to pre-register for the nationwide Do Not Call list that the Federal Trade Commission (FTC) is expected to launch this summer. This registry is FREE to consumers. If you sign up now, you can stop telemarketing calls beginning in October under the nationwide program. Go to: http://caag.state.ca.us/ to sign up.
You can also contact the Direct Marketing Association and have them put you on their do not contact lists. When you register with e-MPS, your e-mail address is placed in an "opt-out" file for two years. All DMA members who wish to send unsolicited commercial e-mail must purge their e-mail lists of the individuals who have registeredtheir e-mail address with e-MPS. If you are on this list you will not receive unsolicited e-mail from DMA members. Go to: http://www.dmaconsumers.org/consumers/optoutform_emps.shtml
This Newsletter:
NEW: FILMMAKER INCENTIVE INFORMATION AVAILABLE ONLINE
In deciding where to shoot, cost is always a factor. Most states and several countries offer a variety of tax breaks, rebates and co-production funds to encourage television, film and commercial production companies to film on location and in state.
We have compiled a summary of U.S. and international filmmaker incentives which are now available online at http://www.marklitwak.com/ under "Filmmaker Incentive Programs." Since these programs are subject to change, confirm the terms of each program by contacting the film offices to get the latest information
GROKSTER, MORPHEUS DO NOT INFRINGE COPYRIGHT SAYS CALIFORNIA COURT
By Chrys Wu, Paralegal to Mark Litwak
A recent California District Court decision has dismissed a copyright infringement lawsuit against two distributors of heavily-used peer-to-peer software that allows users to trade files over the Internet.
Film studios and music publishers sought to block Grokster Ltd. and Streamcast Networks, Inc. from distributing their popular Morpheus and Grokster programs, claiming that the companies were liable for 1) contributory infringement and 2) vicarious infringement of movie and music copyrights.
Citing heavily from A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2nd 896 (N.D. Cal. 2000), and drawing a key distinction between Napster's distribution methods and the methods used by Morpheus and Grokster, U.S. District Judge Stephen Wilson ruled that neither Streamcast nor Grokster were liable for the two causes of action lodged against them.
To prove contributory infringement, the studios and publishers had to show that defendants knew of specific acts of infringement and could act to stop those particular acts; and that the companies made an "active and substantial contribution" to the infringment by encouraging or assisting its users in wrongdoing.
The defendants could not have had actual knowledge of the specific instances of copyright infringement, the court reasoned, because the programs operate on a peer-to-peer network that allows users to trade files without going through any central server owned and operated by the defendants.
The court also noted that Streamcast and Grokster Inc. merely distributed their software programs, which can be used for both unlawful and lawful purposes such as trading government documents, e-books, free music and software, and files in the public domain, a fact acknowledged by the plaintiffs. Citing Napster, the court wrote that Defendants' liability could not be established "merely because peer-to-peer file-sharing technology may be used to infringe plaintiff's copyrights." Plaintiffs were unable to prove that defendants materially contributed to copyright infringement, other than by distributing the software in the first place.
To prove vicarious infringement, plaintiffs had to show that defendants received financial benefit from the infringement, and had the right and ability to supervise the infringing conduct. Unlike contributory infringement, defendants do not have to be aware of the infringement.
For this cause of action, the court decided that defendants received significant financial benefit by distributing the software, which contains advertisements. The more copies distributed, the more advertising revenues they'd recoup. And since many users download Grokster and Morpheus for the express purpose of trading copyrighted files, "a significant portion of Defendants' advertising revenue depends upon the infringement," the court concluded.
However, the court again noted the important distinction that prevented Grokster and Streamcast from assuming the "right and ability " to supervise the infringing conduct. Because the programs operate on a peer-to-peer basis, "Defendants provide software that communicates across networks that are entirely outside Defendants control," wrote the court.
Based on these findings, the court granted summary judgment to Grokster and Streamcast. An appeal is expected.
HOW TO REDUCE SPAM
If feel overwhelmed by spam, junk mail and telephone solicitations, there are several steps you can take to reduce the flow.
The California Department of Justice is now accepting email addresses on their do not call list. This allows one to pre-register for the nationwide Do Not Call list that the Federal Trade Commission (FTC) is expected to launch this summer. This registry is FREE to consumers. If you sign up now, you can stop telemarketing calls beginning in October under the nationwide program. Go to: http://caag.state.ca.us/ to sign up.
You can also contact the Direct Marketing Association and have them put you on their do not contact lists. When you register with e-MPS, your e-mail address is placed in an "opt-out" file for two years. All DMA members who wish to send unsolicited commercial e-mail must purge their e-mail lists of the individuals who have registeredtheir e-mail address with e-MPS. If you are on this list you will not receive unsolicited e-mail from DMA members. Go to: http://www.dmaconsumers.org/consumers/optoutform_emps.shtml
Monday, April 28, 2003
YAHOO! ACQUITTED OF CRIMINAL VIOLATIONS IN FRANCE
April 28, 2003
In This Newsletter:
MARK LITWAK TO TEACH FILMMAKER SELF-DEFENSE AT UCLA
Mark Litwak will be teaching "Self-Defense for Independent Filmmakers: Protecting Your Legal Rights" on May 3-4, 2003 at UCLA. Mark will teach filmmakers how to anticipate problems before they arise in their negotiations with production and distribution companies. He will also discuss how to create incentives to encourage the companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an unresolvable dispute, participants learn what remedies are available to enforce their rights.
To register, call 310- 825-9971 or enroll online at: http://www.uclaextension.org/
YAHOO! ACQUITTED OF CRIMINAL VIOLATIONS IN FRANCE
In a case that helps define jurisdiction in suits brought in one country against websites hosted in another country, a Paris court has acquitted Yahoo! of criminal charges of exhibiting and justifying crimes against humanity.
At issue was whether Yahoo could be held criminally liable for hosting websites that sold Nazi memorabilia. These websites were hosted on servers in the United States. French law prohibits “justifying war crimes” and “exhibiting a uniform, insignia or emblem of a person guilty of crimes against humanity.”
A Paris judge ruled that Yahoo did not did not glorify, praise or at least present the crimes in question favorably simply by allowing Nazi memorabilia to be sold from websites it hosted, and therefore acquitted the company.
Yahoo’s French web-hosting service never allowed the violation of French law, and Yahoo now maintains a global policy prohibiting the sale of Nazi memorabilia from websites it hosts.
CHRISTOPHER VOGLER TO LEAD SCREENWRITER’S WORKSHOP
Christopher Vogler, author of The Writer’s Journey: Mythic Structure for Writers, will discuss his latest ideas about myths, movies, and the deep structure of storytelling for the screen during a two-day workshop held May 10 and 11 in Los Angeles.
The workshop will examine new maps of story structure for a changing audience, new concepts for troubleshooting story, character and structure problems, and ways in which to develop literary works and plays into coherent movies with broad appeal.To register visit http://www.hollywoodfilmfestival.com/vogler.
In This Newsletter:
MARK LITWAK TO TEACH FILMMAKER SELF-DEFENSE AT UCLA
Mark Litwak will be teaching "Self-Defense for Independent Filmmakers: Protecting Your Legal Rights" on May 3-4, 2003 at UCLA. Mark will teach filmmakers how to anticipate problems before they arise in their negotiations with production and distribution companies. He will also discuss how to create incentives to encourage the companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an unresolvable dispute, participants learn what remedies are available to enforce their rights.
To register, call 310- 825-9971 or enroll online at: http://www.uclaextension.org/
YAHOO! ACQUITTED OF CRIMINAL VIOLATIONS IN FRANCE
In a case that helps define jurisdiction in suits brought in one country against websites hosted in another country, a Paris court has acquitted Yahoo! of criminal charges of exhibiting and justifying crimes against humanity.
At issue was whether Yahoo could be held criminally liable for hosting websites that sold Nazi memorabilia. These websites were hosted on servers in the United States. French law prohibits “justifying war crimes” and “exhibiting a uniform, insignia or emblem of a person guilty of crimes against humanity.”
A Paris judge ruled that Yahoo did not did not glorify, praise or at least present the crimes in question favorably simply by allowing Nazi memorabilia to be sold from websites it hosted, and therefore acquitted the company.
Yahoo’s French web-hosting service never allowed the violation of French law, and Yahoo now maintains a global policy prohibiting the sale of Nazi memorabilia from websites it hosts.
CHRISTOPHER VOGLER TO LEAD SCREENWRITER’S WORKSHOP
Christopher Vogler, author of The Writer’s Journey: Mythic Structure for Writers, will discuss his latest ideas about myths, movies, and the deep structure of storytelling for the screen during a two-day workshop held May 10 and 11 in Los Angeles.
The workshop will examine new maps of story structure for a changing audience, new concepts for troubleshooting story, character and structure problems, and ways in which to develop literary works and plays into coherent movies with broad appeal.To register visit http://www.hollywoodfilmfestival.com/vogler.
Friday, April 11, 2003
SUPREME COURT TO DECIDE RELATIONSHIP BETWEEN TRADEMARK LAW AND COPYRIGHT LAW
April 11, 2003
In This Newsletter:
SUPREME COURT TO DECIDE RELATIONSHIP BETWEEN TRADEMARK LAW AND COPYRIGHT LAW
An upcoming Supreme Court decision may help clarify the relationship between trademark law and copyright law in situations where a copyright has expired.
A video distributor sold videos of a public domain TV series originally produced by Twentieth Century Fox. The distributor, Dastar, copied a substantial portion of the series and resold it under a new title, without giving Fox credit for creating the series.
Fox claimed that this repackaging misled buyers into thinking that Dastar created the work itself and sued Dastar for reverse passing off, that is, representing that someone else's goods and services are one's own.
Even though Dastar did not show that consumers were confused, a Federal District judge ruled that Dastar had indeed infringed on Fox's copyright through "bodily appropriation" of the video series, and ordered Dastar to pay twice the profits from the sale due to deliberate and willful infringement.
Dastar lost on appeal; however, the Supreme Court determined that the case is worth of closer scrutiny. A decision is expected in July.
Twentieth Century Fox v. Entertainment Distributing, 34 Fed.Appx. 312, 202 U.S.App.LEXIS 7426 (9th Cir. 2002), cert. granted sub. nom., Dastar Corp. v. Twentieth Century Fox, 123 S.Ct. 816, 2003 U.S.LEXIS 554 (2003)
"DUNSMORE" PREMIERES AT BIFF AND METHOD FEST
Congratulations to our clients, Peter Spirer and Michael Andrews. Their film, "Dunsmore," has been selected for screening on April 12 and 15 at the Bermuda International Film Festival and at Method Fest on April 15 and 17 in Burbank, California.
For Bermuda International Film Festival tickets and information, visit the website at:http://www.bermudafilmfest.com/
For Method Fest tickets and information, visit the website at:http://www.methodfest.com/methodfest_2001/index.htm
"LEVITY" OPENS IN L.A. AND NEW YORK
LEVITY, produced by our client Echo Lake Productions, opens in Los Angeles and New York City. The film opened the Sundance Film Festival this January. Levity is directed by Ed Solomon. It stars Billy Bob Thornton, Morgan Freeman, Holly Hunter, and Kirsten Dunst in a story about a murderer seeking closure and redemption for his crime.
In Los Angeles, the film is playing at Laemmle's Monica 4Plex, Laemmle's Sunset 5, Pacific Galleria Stadium 16 in Sherman Oaks, and United Artists Pasadena Marketplace.
In New York, the film is playing at AMC Theatres Empire 25 in Midtown, Loews Cineplex Lincoln Square on the Upper West Side, and UA Union Square 14 in the Flatiron district.To learn more about the film, visit Sony's website:http://www.sonyclassics.com/levity/index-withflash.html
In This Newsletter:
SUPREME COURT TO DECIDE RELATIONSHIP BETWEEN TRADEMARK LAW AND COPYRIGHT LAW
An upcoming Supreme Court decision may help clarify the relationship between trademark law and copyright law in situations where a copyright has expired.
A video distributor sold videos of a public domain TV series originally produced by Twentieth Century Fox. The distributor, Dastar, copied a substantial portion of the series and resold it under a new title, without giving Fox credit for creating the series.
Fox claimed that this repackaging misled buyers into thinking that Dastar created the work itself and sued Dastar for reverse passing off, that is, representing that someone else's goods and services are one's own.
Even though Dastar did not show that consumers were confused, a Federal District judge ruled that Dastar had indeed infringed on Fox's copyright through "bodily appropriation" of the video series, and ordered Dastar to pay twice the profits from the sale due to deliberate and willful infringement.
Dastar lost on appeal; however, the Supreme Court determined that the case is worth of closer scrutiny. A decision is expected in July.
Twentieth Century Fox v. Entertainment Distributing, 34 Fed.Appx. 312, 202 U.S.App.LEXIS 7426 (9th Cir. 2002), cert. granted sub. nom., Dastar Corp. v. Twentieth Century Fox, 123 S.Ct. 816, 2003 U.S.LEXIS 554 (2003)
"DUNSMORE" PREMIERES AT BIFF AND METHOD FEST
Congratulations to our clients, Peter Spirer and Michael Andrews. Their film, "Dunsmore," has been selected for screening on April 12 and 15 at the Bermuda International Film Festival and at Method Fest on April 15 and 17 in Burbank, California.
For Bermuda International Film Festival tickets and information, visit the website at:http://www.bermudafilmfest.com/
For Method Fest tickets and information, visit the website at:http://www.methodfest.com/methodfest_2001/index.htm
"LEVITY" OPENS IN L.A. AND NEW YORK
LEVITY, produced by our client Echo Lake Productions, opens in Los Angeles and New York City. The film opened the Sundance Film Festival this January. Levity is directed by Ed Solomon. It stars Billy Bob Thornton, Morgan Freeman, Holly Hunter, and Kirsten Dunst in a story about a murderer seeking closure and redemption for his crime.
In Los Angeles, the film is playing at Laemmle's Monica 4Plex, Laemmle's Sunset 5, Pacific Galleria Stadium 16 in Sherman Oaks, and United Artists Pasadena Marketplace.
In New York, the film is playing at AMC Theatres Empire 25 in Midtown, Loews Cineplex Lincoln Square on the Upper West Side, and UA Union Square 14 in the Flatiron district.To learn more about the film, visit Sony's website:http://www.sonyclassics.com/levity/index-withflash.html
Wednesday, March 19, 2003
COURT TV CAN USE NEWS FOOTAGE WITHOUT A LICENSE AS A FAIR USE
March 19, 2003
In This Newsletter:
COURT TV CAN USE NEWS FOOTAGE WITHOUT A LICENSE AS A FAIR USE
Plaintiff Los Angeles News Service generates income by licensing video footage to news stations. It has licensed the footage of the beating of Reginald Denny during the L.A. riots, which occurred after the acquittal of police officers accused of beating Rodney King. Some news outlets, however, have used the footage without a license, claiming their use is a fair use permitted under the Copyright Act.
LA News Service sued Court TV and Group W Newsfeed (now owned by CBS) after Court TV used segments of the Reginald Denny video footage to promote its coverage of the trial of one of those accused of beating Denny, and after Group W Newsfeed distributed the footage to its subscribers. Initially a Federal District Judge dismissed the case on a motion for summary judgment. On appeal, LA News was able to partially reverse that ruling because critical pieces of evidence offered by the Plaintiff were excluded as inadmissible. The Judge found that some of the evidence was, in fact, admissible and could be used by a jury to decide in LA News Service's favor. The dismissal was therefore reversed.
However, Court TV had used this clip to tease coverage for a related trial and an evening news program. Based on the specific facts, the Court of Appeals affirmed dismissal of LA News Service's claims, stating that Court TV had a right to air the clips based on the fair use doctrine.
Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924, 2002 U.S.App.LEXIS 18843 (9th Cir. 2002)
"DUNSMORE" TO SCREEN AT METHOD FEST AND BIFF
Congratulations to our clients, Peter Spirer and Michael Andrews. Their film, "Dunsmore," has been selected for screening at the Bermuda International Film Festival and for a West Coast premiere at Method Fest, which will be held in Burbank, California. Both festivals are in April.
For more information about Method Fest, visit their website at:http://www.methodfest.com/methodfest_2001/index.htm
For more information about Bermuda International Film Festival, visit their website at:http://www.bermudafilmfest.com/
HARD WORK AND SELF-DISTRIBUTION BRING PRESS TO FILMMAKER
In another example of how elbow grease and ingenuity do pay off, VideoBusiness magazine featured our client Jimi Petulla and his self-distributed film, "Reversal," in a recent issue.
Unable to land a distribution agreement, Petulla set up a website to sell the film directly to viewers and has sold about 13,000 DVD copies in 120 days. He attributes the sales volume to the film's "niche appeal," saying, "Filmmakers need to know that if you have movie in a niche, you can reach that niche through the Internet."
VideoBusiness magazine can be found at: http://www.videobusiness.comVisit the official "Reversal" website at: http://www.reversalthemovie.com
FIND PRODUCT PLACEMENT CONTACTS ONLINE AT E.R.M.A.
Filmmakers looking for product placement deals can search online at: http://www.erma.org
The website, run by E.R.M.A., the Entertainment Resources & Marketing Association, lists contacts for more than 70 companies that represent dozens of well-known brands. The site also contains information on the organization itself, which seeks to "ensure high-quality ethics and standards of operation in the industry."
In This Newsletter:
COURT TV CAN USE NEWS FOOTAGE WITHOUT A LICENSE AS A FAIR USE
Plaintiff Los Angeles News Service generates income by licensing video footage to news stations. It has licensed the footage of the beating of Reginald Denny during the L.A. riots, which occurred after the acquittal of police officers accused of beating Rodney King. Some news outlets, however, have used the footage without a license, claiming their use is a fair use permitted under the Copyright Act.
LA News Service sued Court TV and Group W Newsfeed (now owned by CBS) after Court TV used segments of the Reginald Denny video footage to promote its coverage of the trial of one of those accused of beating Denny, and after Group W Newsfeed distributed the footage to its subscribers. Initially a Federal District Judge dismissed the case on a motion for summary judgment. On appeal, LA News was able to partially reverse that ruling because critical pieces of evidence offered by the Plaintiff were excluded as inadmissible. The Judge found that some of the evidence was, in fact, admissible and could be used by a jury to decide in LA News Service's favor. The dismissal was therefore reversed.
However, Court TV had used this clip to tease coverage for a related trial and an evening news program. Based on the specific facts, the Court of Appeals affirmed dismissal of LA News Service's claims, stating that Court TV had a right to air the clips based on the fair use doctrine.
Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924, 2002 U.S.App.LEXIS 18843 (9th Cir. 2002)
"DUNSMORE" TO SCREEN AT METHOD FEST AND BIFF
Congratulations to our clients, Peter Spirer and Michael Andrews. Their film, "Dunsmore," has been selected for screening at the Bermuda International Film Festival and for a West Coast premiere at Method Fest, which will be held in Burbank, California. Both festivals are in April.
For more information about Method Fest, visit their website at:http://www.methodfest.com/methodfest_2001/index.htm
For more information about Bermuda International Film Festival, visit their website at:http://www.bermudafilmfest.com/
HARD WORK AND SELF-DISTRIBUTION BRING PRESS TO FILMMAKER
In another example of how elbow grease and ingenuity do pay off, VideoBusiness magazine featured our client Jimi Petulla and his self-distributed film, "Reversal," in a recent issue.
Unable to land a distribution agreement, Petulla set up a website to sell the film directly to viewers and has sold about 13,000 DVD copies in 120 days. He attributes the sales volume to the film's "niche appeal," saying, "Filmmakers need to know that if you have movie in a niche, you can reach that niche through the Internet."
VideoBusiness magazine can be found at: http://www.videobusiness.comVisit the official "Reversal" website at: http://www.reversalthemovie.com
FIND PRODUCT PLACEMENT CONTACTS ONLINE AT E.R.M.A.
Filmmakers looking for product placement deals can search online at: http://www.erma.org
The website, run by E.R.M.A., the Entertainment Resources & Marketing Association, lists contacts for more than 70 companies that represent dozens of well-known brands. The site also contains information on the organization itself, which seeks to "ensure high-quality ethics and standards of operation in the industry."
Wednesday, January 29, 2003
Congress Allows Educators to Transmit Copyrighted Works over Internet
January 29, 2003
In This Newsletter:
Mark Litwak to Lecture at University of British Columbia Feb. 6-8
Mark Litwak will be teaching two of his most popular day-and-a-half courses at the University of British Columbia in February.
"Self-defense for Writers & Filmmakers" will be held February 6-7. This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights and by encouraging the other party to live up to agreements by adding performance milestones, default penalties and arbitration clauses. Participants will also learn what remedies are available to enforce their rights in the event of a dispute.
"Financing and Distributing Independent Features" will be held February 7-8. This seminar explores how independent films are financed and distributed. The seminar includes an extensive handout with a long-form distribution contract, checklists and other materials useful in preparing to raise cash and distribute your film.
For more information and online registration, click here:http://www.cstudies.ubc.ca/newsletter/film/
Congress Allows Educators to Transmit Copyrighted Works over Internet
While the United States has some of the most protective copyright laws in the world, certain groups are exempt from licensing copyrighted material. Among these are non-profit educators who, since 1976, have been free to perform copyrighted works in classrooms and transmit copyrighted nondramatic literary and musical works to classrooms via closed-circuit television without copyright licenses.
Now, thanks to a recent amendment by Congress, non-profit educators can use copyrighted works of almost any kind in distance education courses conducted over the Internet. The transmission can be made to anywhere the enrolled student is, so long as the transmission is part of the equivalent of an in-class discussion.
The amendment, known as the TEACH Act, allows non-profit instructors to transmit "reasonable and limited portions" of movies and music in addition to works previously allowed for license-free use under the 1976 Copyright Act.
The TEACH Act does not change the fair use doctrine. To prevent abuse, the Act has two limitations: only accredited non-profit educational institutions may receive the exemption and "secure tests" such as the SAT and works "primarily" used in Internet instruction must still be licensed.
Hollywood.com to Host 2-day Pitch & Networking Conference
Hollywood.com, founder of the Hollywood Film Festival, will host a pitch and networking conference on March 1 & 2, 2003 called "Sell Your Story to Hollywood Buyers."
Registration for "Sell Your Story to Hollywood Buyers" is $195 by January 31, $245 after.For more information and to register, call 310-288-1882 or click here:http://www.hollywoodawards.com/writing/index3.html
In This Newsletter:
Mark Litwak to Lecture at University of British Columbia Feb. 6-8
Mark Litwak will be teaching two of his most popular day-and-a-half courses at the University of British Columbia in February.
"Self-defense for Writers & Filmmakers" will be held February 6-7. This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights and by encouraging the other party to live up to agreements by adding performance milestones, default penalties and arbitration clauses. Participants will also learn what remedies are available to enforce their rights in the event of a dispute.
"Financing and Distributing Independent Features" will be held February 7-8. This seminar explores how independent films are financed and distributed. The seminar includes an extensive handout with a long-form distribution contract, checklists and other materials useful in preparing to raise cash and distribute your film.
For more information and online registration, click here:http://www.cstudies.ubc.ca/newsletter/film/
Congress Allows Educators to Transmit Copyrighted Works over Internet
While the United States has some of the most protective copyright laws in the world, certain groups are exempt from licensing copyrighted material. Among these are non-profit educators who, since 1976, have been free to perform copyrighted works in classrooms and transmit copyrighted nondramatic literary and musical works to classrooms via closed-circuit television without copyright licenses.
Now, thanks to a recent amendment by Congress, non-profit educators can use copyrighted works of almost any kind in distance education courses conducted over the Internet. The transmission can be made to anywhere the enrolled student is, so long as the transmission is part of the equivalent of an in-class discussion.
The amendment, known as the TEACH Act, allows non-profit instructors to transmit "reasonable and limited portions" of movies and music in addition to works previously allowed for license-free use under the 1976 Copyright Act.
The TEACH Act does not change the fair use doctrine. To prevent abuse, the Act has two limitations: only accredited non-profit educational institutions may receive the exemption and "secure tests" such as the SAT and works "primarily" used in Internet instruction must still be licensed.
Hollywood.com to Host 2-day Pitch & Networking Conference
Hollywood.com, founder of the Hollywood Film Festival, will host a pitch and networking conference on March 1 & 2, 2003 called "Sell Your Story to Hollywood Buyers."
Registration for "Sell Your Story to Hollywood Buyers" is $195 by January 31, $245 after.For more information and to register, call 310-288-1882 or click here:http://www.hollywoodawards.com/writing/index3.html
Friday, December 20, 2002
Hawaii Offers Generous Tax Credits to Film Production Companies
December 20, 2002
In This Newsletter:
Hawaii Offers Generous Tax Credits to Film Production Companies
Hawaii recently enacted some very impressive and generous tax incentives. Hawaii’s high tech investment tax credit provides a 100% return on cash investments in a qualified high tech business (QHTB) on a front-loaded basis over 5 years (35% credit in the year of investment, 25% in the following year, 20% in the second year following, then 10% each in the third and fourth year following). Qualified research activities include performing arts products such as motion pictures. The credit is designed to give a 100% return for investments up to $2 million per year per QHTB. The credit applies against Hawaii income tax liability only. The credit can be taken by individuals and corporations paying Hawaii income tax, and by banks and insurance companies against their franchise and insurance premium tax.
Moreover, if money from outside Hawaii is invested, the tax benefits can be allocated to the Hawaiian investors so they can obtain more than 100% return. So for example, if a Hawaii investor put up $500,000 and an Arkansas investor put up $500,000, the parties could agree to allocate all the tax credits to the Hawaii investor (since the Arkansas investor doesn't pay taxes in Hawaii they are worthless to him anyway). So the Hawaii investors gets back 200% return over 5 years. In return, the Arkansas investor could be given a greater share of the back end, or preferred recoupment.
The production entity would be required to employ or own capital or property or maintain an office in Hawaii, to have more than 50% of its total business activities in performing arts products and to conduct more than 75% of those activities in Hawaii. In other words, 75% of the budget needs to be spent in Hawaii. I currently represent a Hawaiian company that can serve as the production entity that has received a comfort ruling from the Department of Taxation indicating that the company qualifies.
In order to qualify, companies need to stay in business in Hawaii for at least five years, and should have some copyright ownership of the picture. There are many more details but those are the basics. For additional information about Hawaii’s tax incentives, goto http://www.state.hi.us/tax/hi_tech.html.
I am working with a major Hawaiian law firm and a large Hawaiian bank on several co-productions. I am looking for projects that can be shot in Hawaii that have partial financing, preferably at least half the budget from non-Hawaiian sources. Note that there are not many shooting stages or post facilities in Hawaii, so stories that can be shot on location in Hawaii are best.
"Tom Dowd and the Language of Music" to Screen at Sundance
Congratulations to our clients Mark Moormann and Mark Hunt. Their film, TOM DOWD AND THE LANGUAGE OF MUSIC, has been selected for the 2003 Sundance Film Festival's Documentary competition.
The documentary describes the life and influence of Tom Dowd, legendary recording engineer and producer. Dowd helped shape the sounds of a wide variety of pop, R&B, soul, jazz and roll & roll artists including Ron Stewart, Aretha Franklin, John Coltrane, and Eric Clapton.
For more information about "Tom Dowd and the Language of Music," visit http://www.thelanguageofmusic.com/.
Composer Can't Sue for Copyright Infringement
A federal District Court in Los Angeles has ruled that though composer Richard Warren can sue Fox Family Worldwide for breach of contract he cannot sue for copyright infringement, in a case that pitted the "Remington Steele" composer against the media conglomerate.
In the 1980's, Warren signed several composer agreements with the "Remington Steele" series producer, MTM. Some of these agreements did not include the phrase "work made for hire" and none of them specified that Warren's work was "specially ordered or commissioned." The agreements did entitle Warren to the writer's share ofASCAP and BMI performance fees. In addition, if the show were licensed to companies that did not hold ASCAP or BMI licenses, the producer would pay a portion of the license fees to Warren.
Fox Family Worldwide succeeded MTM and assumed the license rights to "Remington Steele." Fox Family eventually signed agreements to license the show to the Christian Broadcasting Network and Princess Cruises, neither of which held ASCAP or BMI licenses when the agreements were signed. Fox Family failed to pay Warren.
Warren sued for copyright infringement and asked that his agreements be rescinded and his full rights to the music copyright be returned because Fox Family never paid the performance fees. The District Court ruled that the agreements Warren signed were in fact work for hire agreements, making Fox Family the rightful copyright holder. Therefore, Warren had no standing to sue for copyright infringement.
The court refused to grant Warren's request for rescission, stating that, "where…there is an express contractual obligation to pay royalties, the remedy for breach is clear, and the implication of a right to rescind is not necessary."
The District court granted Fox Family's motion to dismiss the lawsuit.Warren v. Fox Family Worldwide, Inc., 171 F.Supp.2d 1057, 201 U.S.Dist.LEXIS 22207 (C.D.Cal. 2001)
In This Newsletter:
Hawaii Offers Generous Tax Credits to Film Production Companies
Hawaii recently enacted some very impressive and generous tax incentives. Hawaii’s high tech investment tax credit provides a 100% return on cash investments in a qualified high tech business (QHTB) on a front-loaded basis over 5 years (35% credit in the year of investment, 25% in the following year, 20% in the second year following, then 10% each in the third and fourth year following). Qualified research activities include performing arts products such as motion pictures. The credit is designed to give a 100% return for investments up to $2 million per year per QHTB. The credit applies against Hawaii income tax liability only. The credit can be taken by individuals and corporations paying Hawaii income tax, and by banks and insurance companies against their franchise and insurance premium tax.
Moreover, if money from outside Hawaii is invested, the tax benefits can be allocated to the Hawaiian investors so they can obtain more than 100% return. So for example, if a Hawaii investor put up $500,000 and an Arkansas investor put up $500,000, the parties could agree to allocate all the tax credits to the Hawaii investor (since the Arkansas investor doesn't pay taxes in Hawaii they are worthless to him anyway). So the Hawaii investors gets back 200% return over 5 years. In return, the Arkansas investor could be given a greater share of the back end, or preferred recoupment.
The production entity would be required to employ or own capital or property or maintain an office in Hawaii, to have more than 50% of its total business activities in performing arts products and to conduct more than 75% of those activities in Hawaii. In other words, 75% of the budget needs to be spent in Hawaii. I currently represent a Hawaiian company that can serve as the production entity that has received a comfort ruling from the Department of Taxation indicating that the company qualifies.
In order to qualify, companies need to stay in business in Hawaii for at least five years, and should have some copyright ownership of the picture. There are many more details but those are the basics. For additional information about Hawaii’s tax incentives, goto http://www.state.hi.us/tax/hi_tech.html.
I am working with a major Hawaiian law firm and a large Hawaiian bank on several co-productions. I am looking for projects that can be shot in Hawaii that have partial financing, preferably at least half the budget from non-Hawaiian sources. Note that there are not many shooting stages or post facilities in Hawaii, so stories that can be shot on location in Hawaii are best.
"Tom Dowd and the Language of Music" to Screen at Sundance
Congratulations to our clients Mark Moormann and Mark Hunt. Their film, TOM DOWD AND THE LANGUAGE OF MUSIC, has been selected for the 2003 Sundance Film Festival's Documentary competition.
The documentary describes the life and influence of Tom Dowd, legendary recording engineer and producer. Dowd helped shape the sounds of a wide variety of pop, R&B, soul, jazz and roll & roll artists including Ron Stewart, Aretha Franklin, John Coltrane, and Eric Clapton.
For more information about "Tom Dowd and the Language of Music," visit http://www.thelanguageofmusic.com/.
Composer Can't Sue for Copyright Infringement
A federal District Court in Los Angeles has ruled that though composer Richard Warren can sue Fox Family Worldwide for breach of contract he cannot sue for copyright infringement, in a case that pitted the "Remington Steele" composer against the media conglomerate.
In the 1980's, Warren signed several composer agreements with the "Remington Steele" series producer, MTM. Some of these agreements did not include the phrase "work made for hire" and none of them specified that Warren's work was "specially ordered or commissioned." The agreements did entitle Warren to the writer's share ofASCAP and BMI performance fees. In addition, if the show were licensed to companies that did not hold ASCAP or BMI licenses, the producer would pay a portion of the license fees to Warren.
Fox Family Worldwide succeeded MTM and assumed the license rights to "Remington Steele." Fox Family eventually signed agreements to license the show to the Christian Broadcasting Network and Princess Cruises, neither of which held ASCAP or BMI licenses when the agreements were signed. Fox Family failed to pay Warren.
Warren sued for copyright infringement and asked that his agreements be rescinded and his full rights to the music copyright be returned because Fox Family never paid the performance fees. The District Court ruled that the agreements Warren signed were in fact work for hire agreements, making Fox Family the rightful copyright holder. Therefore, Warren had no standing to sue for copyright infringement.
The court refused to grant Warren's request for rescission, stating that, "where…there is an express contractual obligation to pay royalties, the remedy for breach is clear, and the implication of a right to rescind is not necessary."
The District court granted Fox Family's motion to dismiss the lawsuit.Warren v. Fox Family Worldwide, Inc., 171 F.Supp.2d 1057, 201 U.S.Dist.LEXIS 22207 (C.D.Cal. 2001)
Friday, December 13, 2002
Texan Can't Be Sued in California for Releasing DVD Decryption Software on the Web
December 13, 2002
In This Newsletter:
Mark Litwak to Speak at HarvardOn Sunday, December 22 at 2PM, Mark Litwak will give a one-hour lecture on "Self-defense for Filmmakers" at Harvard University.
This free seminar is open to the public and will be held in the Graduate Student Lounge, 2nd Floor, Lehman Hall. Anyone planning to attend should RSVP to Valerie Weiss at vhweiss@fas.harvard.edu. You must arrive on time as the entrance doors will be locked at 2PM.
For more information, please visit the Dudley Film Program website at http://go.to/dudleyfilm.
"Levity" to Open 2003 Sundance Film Festival
Congratulations to our client Echo Lake Productions. Their film, LEVITY, has been selected to screen as the opening night film at the 2003 Sundance Film Festival. The directorial debut of screenwriter Ed Solomon (MEN IN BLACK), the film will be distributed in the U.S. by Columbia TriStar and internationally by Canal+. The film stars Billy Bob Thornton, Morgan Freeman, Holly Hunter, and Kirsten Dunst.
For more information about Levity, visit Echo Lake Productions' website at http://www.echolakeproductions.com/intheaters/intheaters.htm.
Texan Can't Be Sued in California for Releasing DVD Decryption Software on the Web
In a ruling that has the DVD industry worried, California's Supreme Court has decided that the state has no jurisdiction in a trade secret infringement lawsuit involving the Web-based LiViD video project and California's DVD Copy Control Association.
The DVD Copy Control Association alleged that LiVid's founder, Matthew Pavlovich, infringed its trade secrets in posting code on the Internet that could unscramble its encryption software. Furthermore, the Association argued that the movie industry, with so many companies based in California, would suffer if DVDs could be illegally copied at leisure. The case should therefore be adjudicated in California.
In a 4-3 decision, the California high court said that it had no personal jurisdiction over Pavlovich, who lives and works in Texas and was a student in Indiana when he first posted the decryption code, known as DeCSS.
The majority stated that Pavlovich had no apparent California contacts. Furthermore, that although his software was posted on the Web, his site "merely posts information and has no interactive features." There was nothing on the Website to show there was any intent, express or implied, to directly target California and its DVD and movie industries. As Pavlovich did not have sufficient "minimum contacts" in the state and had no intent to impact state business, he could not be sued in California
The majority expressed concern that if Websites like Pavlovich's, which contained nothing more than information and no interactive features, could be the basis for jurisdiction, then "mere use of the Internet would subject the user to personal jurisdiction in any forum where the site was accessible."
The dissenters in the case argued that though Pavlovich had never established a residence or business address in California, the code he posted on the Internet could be used by anyone in every state, including California.
In addition, the dissenters stated that Pavlovich knew or should have known that posting DeCSS to his Website would harm the DVD and movie industries, and he knew or should have known that these industries are primarily based in California. Therefore, Pavlovich did target California's DVD and movie industries.
It is expected that the case will be brought for consideration before the U.S. Supreme Court.
In This Newsletter:
Mark Litwak to Speak at HarvardOn Sunday, December 22 at 2PM, Mark Litwak will give a one-hour lecture on "Self-defense for Filmmakers" at Harvard University.
This free seminar is open to the public and will be held in the Graduate Student Lounge, 2nd Floor, Lehman Hall. Anyone planning to attend should RSVP to Valerie Weiss at vhweiss@fas.harvard.edu. You must arrive on time as the entrance doors will be locked at 2PM.
For more information, please visit the Dudley Film Program website at http://go.to/dudleyfilm.
"Levity" to Open 2003 Sundance Film Festival
Congratulations to our client Echo Lake Productions. Their film, LEVITY, has been selected to screen as the opening night film at the 2003 Sundance Film Festival. The directorial debut of screenwriter Ed Solomon (MEN IN BLACK), the film will be distributed in the U.S. by Columbia TriStar and internationally by Canal+. The film stars Billy Bob Thornton, Morgan Freeman, Holly Hunter, and Kirsten Dunst.
For more information about Levity, visit Echo Lake Productions' website at http://www.echolakeproductions.com/intheaters/intheaters.htm.
Texan Can't Be Sued in California for Releasing DVD Decryption Software on the Web
In a ruling that has the DVD industry worried, California's Supreme Court has decided that the state has no jurisdiction in a trade secret infringement lawsuit involving the Web-based LiViD video project and California's DVD Copy Control Association.
The DVD Copy Control Association alleged that LiVid's founder, Matthew Pavlovich, infringed its trade secrets in posting code on the Internet that could unscramble its encryption software. Furthermore, the Association argued that the movie industry, with so many companies based in California, would suffer if DVDs could be illegally copied at leisure. The case should therefore be adjudicated in California.
In a 4-3 decision, the California high court said that it had no personal jurisdiction over Pavlovich, who lives and works in Texas and was a student in Indiana when he first posted the decryption code, known as DeCSS.
The majority stated that Pavlovich had no apparent California contacts. Furthermore, that although his software was posted on the Web, his site "merely posts information and has no interactive features." There was nothing on the Website to show there was any intent, express or implied, to directly target California and its DVD and movie industries. As Pavlovich did not have sufficient "minimum contacts" in the state and had no intent to impact state business, he could not be sued in California
The majority expressed concern that if Websites like Pavlovich's, which contained nothing more than information and no interactive features, could be the basis for jurisdiction, then "mere use of the Internet would subject the user to personal jurisdiction in any forum where the site was accessible."
The dissenters in the case argued that though Pavlovich had never established a residence or business address in California, the code he posted on the Internet could be used by anyone in every state, including California.
In addition, the dissenters stated that Pavlovich knew or should have known that posting DeCSS to his Website would harm the DVD and movie industries, and he knew or should have known that these industries are primarily based in California. Therefore, Pavlovich did target California's DVD and movie industries.
It is expected that the case will be brought for consideration before the U.S. Supreme Court.
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