February 26, 2004
In this newsletter:
RGH/LIONS SHARE LIABLE FOR WRONGDOING, CLAIMANT AWARDED $75,000
In an AFMA arbitration proceeding, RGH/Lions Share Pictures was found liable for multiple counts of wrongdoing. RGH/Lions Share failed to provide accurate and timely accountings, wrongfully refused to accept cancellation of its distribution agreement for the motion picture “Oliver Twisted,” and tortuously interfered with the producer’s attempt to re-license the picture to a new distributor. The arbitrator also found that RGH/Lions Share, a company controlled by Eric Louzil, wrongfully attempted to enter into a license agreement with Singa Home Entertainment, another company controlled by Eric Louzil. The arbitrator found that the Singa distribution agreement was invalid, and awarded Claimant $75,000 in damages.
Mark Litwak, attorney for Claimant Florida Film Investment Company, stated, “we are very pleased that the arbitrator agreed with all our claims against RGH/Lion’s Share, and dismissed all of RGH/Lions Share’s purported defenses.” Litwak added, “The sworn testimony of Eric Louzil during the proceedings was incredibly shocking, as he admitted that his producer reports were full of errors and improper deductions, and that he had freely transferred assets among his affiliated companies, including Singa Home Entertainment, Echelon Entertainment, and Newmark/Echelon, as well as transferred assets offshore.”
According to Gersh Morningstar, CEO of the Florida Film Investment Company, RGH/Lions Share attempted to continue licensing its film, “Oliver Twisted,” even after RGH/Lions Share’s rights were terminated. After Morningstar gave formal notice that the distribution agreement was terminated to Eric Louzil, the President of RGH/Lions Share, in February 2003 , RGH/Lions Share concluded deals for which revenue had never been reported to the producer. Louzil and his company also continued to market “Oliver Twisted,” months after the termination.
Morningstar states that RGH/Lions Share attempted to sell DVD rights for “Oliver Twisted” to Pathfinder Pictures, which in turn advertised on their website that they would be releasing a DVD on Oct. 28, 2003. When attorney Litwak contacted Pathfinder in June at Morningstar’s behest, the company disclosed that RGH/Lions Share had entered into a contract with them in April 2003; more than a month and a half after the agreement with RGH/Lions Share was canceled. Pathfinder, embarrassed by this revelation, had to withdraw the picture from its slate.
BRANDON COLE WINS PANASONIC FILMMAKERS’ GRANT
Congratulations to our client, Brandon Cole! Cole was awarded a Panasonic Digital Filmmakers’ Grant based on the merits of his film “Bristol Boys.” “Bristol Boys” is a coming-of-age crime-comedy about the rise and fall of a trio of suburban drug dealers and is based on a true story.
“SCREEN DOOR JESUS” TO SCREEN IN L.A.
Congratulations to our clients, producers Sam Adelman and David Stuart, and writer/director Kirk Davis, whose film, “Screen Door Jesus” won the 2003 Hamptons International Film Festival (Best Feature, Best Cinematography, Best Score), 2003 Deep Ellum Film Festival (Best Texas Film), 2003 New York International Film & Video Festival (Best Drama), and 2003 St. Louis International Film Festival (Best Emerging Talent, Eugene Williams).
The film tells the story of that summer in Bethlehem, TX (pop. 2,378) when people thought they saw none other than the images of Jesus on Mother Harper’s screen door.
At 8PM on March 5, “Screen Door Jesus” will roll on Screen 1 at Laemmle’s Fairfax 3 Cinemas, 7907 Beverly Blvd, Los Angeles, CA 90025.
Tickets are available online and at the box office. Purchase tickets online: ticketweb.com/user/?region=socal&query=detail&event=493919
Thursday, February 26, 2004
Monday, February 02, 2004
Unauthorized Movie Recording Gets Tougher Punishment in California
February 2, 2004
In this newsletter:
Congratulations to “Mango Kiss”
Client Sascha Rice’s film “Mango Kiss” has been bestowed a bevy of praise and awards in recent weeks. The film won the gold award at the Park City Film Festival, was the Opening Night Film at Seattle’s Sex on Screen Film Festival and Park City Film Music Festival, and is slated to be the closing night film for the Durango Film Festival, which will be held March 6-14, 2004.
Congratulations Sascha!
Unauthorized Movie Recording Gets Tougher Punishment in California
This new California law is designed to stop illegal recording of movies. It was necessary to enact this new law because it’s become increasingly easy to record movies in theaters illegally. With the shrinking size of video and digital recorders, anyone can smuggle them into theaters without being noticed.
California has already had a law that made it a misdemeanor to refuse to stop operating a recording device in a movie theater “upon the request of the theaterowner.” However, the legislature had to take tougher measures in order to protect the movie industry and curb piracy. The new statute supplements the existing law by adding a section to the California Penal Code, Section 653z. This section makes it a “public offense” to operate a recording device in a movie theater while a movie is being shown. Unless the person recording the movie has a written authorization from the movie theater’s owner, the act is punishable by imprisonment for as long as one year in county jail and a fine of as much as $2,500.
This tougher law will make it more difficult and risky for anyone to record movies illegally and will help decrease movie piracy.
Mark in Moviemaker, FFT, Will Speak at Miami Film Festival Feb. 7 Mark’s article, “Soft Money in Hard Times,” has been published in the current issue of Moviemaker magazine. Moviemaker can be found online at www.moviemaker.com.
Mark was also mentioned as one of “The Top 25 Indie Players” in Film Festival Today. FFT was distributed during the Sundance Film Festival and can be found online at www.filmfestivaltoday.com.
On Feb. 7, Mark will deliver his “Self-defense for Writers and Filmmakers” seminar at the Miami Film Festival. He’ll cover typical compensation and terms of studio contracts, merchandising deals, creative approvals, and negotiating tactics and strategies. To register, call 305.237.1696. Visit the Miami International Film Festival website at www.miamifilmfestival.com/.
In this newsletter:
Congratulations to “Mango Kiss”
Client Sascha Rice’s film “Mango Kiss” has been bestowed a bevy of praise and awards in recent weeks. The film won the gold award at the Park City Film Festival, was the Opening Night Film at Seattle’s Sex on Screen Film Festival and Park City Film Music Festival, and is slated to be the closing night film for the Durango Film Festival, which will be held March 6-14, 2004.
Congratulations Sascha!
Unauthorized Movie Recording Gets Tougher Punishment in California
This new California law is designed to stop illegal recording of movies. It was necessary to enact this new law because it’s become increasingly easy to record movies in theaters illegally. With the shrinking size of video and digital recorders, anyone can smuggle them into theaters without being noticed.
California has already had a law that made it a misdemeanor to refuse to stop operating a recording device in a movie theater “upon the request of the theaterowner.” However, the legislature had to take tougher measures in order to protect the movie industry and curb piracy. The new statute supplements the existing law by adding a section to the California Penal Code, Section 653z. This section makes it a “public offense” to operate a recording device in a movie theater while a movie is being shown. Unless the person recording the movie has a written authorization from the movie theater’s owner, the act is punishable by imprisonment for as long as one year in county jail and a fine of as much as $2,500.
This tougher law will make it more difficult and risky for anyone to record movies illegally and will help decrease movie piracy.
Mark in Moviemaker, FFT, Will Speak at Miami Film Festival Feb. 7 Mark’s article, “Soft Money in Hard Times,” has been published in the current issue of Moviemaker magazine. Moviemaker can be found online at www.moviemaker.com.
Mark was also mentioned as one of “The Top 25 Indie Players” in Film Festival Today. FFT was distributed during the Sundance Film Festival and can be found online at www.filmfestivaltoday.com.
On Feb. 7, Mark will deliver his “Self-defense for Writers and Filmmakers” seminar at the Miami Film Festival. He’ll cover typical compensation and terms of studio contracts, merchandising deals, creative approvals, and negotiating tactics and strategies. To register, call 305.237.1696. Visit the Miami International Film Festival website at www.miamifilmfestival.com/.
Friday, November 21, 2003
USE OF ELVIS FOOTAGE IN FILM BIOGRAPHY IS NOT FAIR USE
November 21, 2003
In this newsletter:
THE BIG EMPTY OPENS TONIGHT IN L.A.
Congratulations to our client, Echo Lake Productions. Their film, “THE BIG EMPTY,” starring Jon Favreau, Joey Lauren Adams, Rachael Lee Cooke, Kelsey Grammer, and Daryl Hannah opens this Friday, Nov. 21, at the Laemmle Sunset Five (8000 Sunset Boulevard, corner of Sunset and Crescent Heights) in Los Angeles. Producer Doug Mankoff will conduct an informal Q&A at the Wolfgang Puck Café next to the theater on Sunday evening. The film is also screening at the Century Orleans in Las Vegas, and AMC River Park Square 20 in Spokane, WA. Watch the trailer or read about the production by connecting to www.thebigempty.com . Advance tickets are available at www.moviefone.com or www.laemmle.com .
FIRESIDE FILMS LLC
Congratulations to our client, Fireside Films, LLC and director Brad Keller. Their film, “A Killer Within,” began principal photography in Dallas this week. The production stars C. Thomas Howell, Sean Young, Ben Browder, Dedee Pfeiffer and Giancarlo Esposito.
USE OF ELVIS FOOTAGE IN FILM BIOGRAPHY IS NOT FAIR USE
The King has won its appeal. Elvis Presley Enterprises won affirmation from the U.S. Court of Appeals for its preliminary injunction against Passport Entertainment, which prevented Passport from selling a multi-disc documentary about Elvis Presley entitled, “The Definitive Elvis.”
Elvis Presley Enterprises received its original injunction on the basis of copyright infringement. “The Definitive Elvis” incorporated unlicensed clips of copyrighted music, photographs, movies, and television appearances.
Passport Entertainment, which produces celebrity video biographies for the home video market, sought a review of the lower court’s decision, claiming the court abused its discretion and that Passport could, among other things, present a plausible fair use defense.
The doctrine of fair use requires the courts to consider four factors: the purposes and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for and value of the copyrighted work.
In an analysis of the lower court’s decision, Circuit Judge Richard Tallman of the U.S. Court of Appeals determined that the lower court had not made any errors, legal or otherwise, in its factual findings. However, the judge left the door open for a rehearing, writing that the Appeals Court “might view this case as closer than the district court saw it.”
In a dissenting opinion, Circuit Judge John T. Noonan wrote that the district court had both misstated critical facts and governing law, and that the appeals court should, in fact, reverse the grant of preliminary injunction.
Detailing the errors in the district court’s findings, Judge Noonan further commented on the district court’s failure to conduct an analysis of the public interest in the subject of the documentary and the public injury that would be caused by what is essentially a suppression of speech.
In this newsletter:
THE BIG EMPTY OPENS TONIGHT IN L.A.
Congratulations to our client, Echo Lake Productions. Their film, “THE BIG EMPTY,” starring Jon Favreau, Joey Lauren Adams, Rachael Lee Cooke, Kelsey Grammer, and Daryl Hannah opens this Friday, Nov. 21, at the Laemmle Sunset Five (8000 Sunset Boulevard, corner of Sunset and Crescent Heights) in Los Angeles. Producer Doug Mankoff will conduct an informal Q&A at the Wolfgang Puck Café next to the theater on Sunday evening. The film is also screening at the Century Orleans in Las Vegas, and AMC River Park Square 20 in Spokane, WA. Watch the trailer or read about the production by connecting to www.thebigempty.com . Advance tickets are available at www.moviefone.com or www.laemmle.com .
FIRESIDE FILMS LLC
Congratulations to our client, Fireside Films, LLC and director Brad Keller. Their film, “A Killer Within,” began principal photography in Dallas this week. The production stars C. Thomas Howell, Sean Young, Ben Browder, Dedee Pfeiffer and Giancarlo Esposito.
USE OF ELVIS FOOTAGE IN FILM BIOGRAPHY IS NOT FAIR USE
The King has won its appeal. Elvis Presley Enterprises won affirmation from the U.S. Court of Appeals for its preliminary injunction against Passport Entertainment, which prevented Passport from selling a multi-disc documentary about Elvis Presley entitled, “The Definitive Elvis.”
Elvis Presley Enterprises received its original injunction on the basis of copyright infringement. “The Definitive Elvis” incorporated unlicensed clips of copyrighted music, photographs, movies, and television appearances.
Passport Entertainment, which produces celebrity video biographies for the home video market, sought a review of the lower court’s decision, claiming the court abused its discretion and that Passport could, among other things, present a plausible fair use defense.
The doctrine of fair use requires the courts to consider four factors: the purposes and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for and value of the copyrighted work.
In an analysis of the lower court’s decision, Circuit Judge Richard Tallman of the U.S. Court of Appeals determined that the lower court had not made any errors, legal or otherwise, in its factual findings. However, the judge left the door open for a rehearing, writing that the Appeals Court “might view this case as closer than the district court saw it.”
In a dissenting opinion, Circuit Judge John T. Noonan wrote that the district court had both misstated critical facts and governing law, and that the appeals court should, in fact, reverse the grant of preliminary injunction.
Detailing the errors in the district court’s findings, Judge Noonan further commented on the district court’s failure to conduct an analysis of the public interest in the subject of the documentary and the public injury that would be caused by what is essentially a suppression of speech.
Tuesday, November 04, 2003
NEW YORK VOLUNTEER LAWYERS FOR THE ARTS
November 4, 2003
In this newsletter:
NEW YORK VOLUNTEER LAWYERS FOR THE ARTS
On Nov. 8 at the Lower Manhattan Cultural Council, Mark will conduct a comprehensive seminar that explores how independent films are financed and distributed. During this Volunteer Lawyers for the Arts seminar, Mark will review include financing via pre?sales, debt and limited partnerships, negotiating tactics, typical contract terms, cross?collateralization and creative accounting. He will address how producers and filmmakers can protect themselves by watering down warranties, getting added to the E&O policy, using lab access letters to retain possession of the negative, utilizing termination and arbitration clauses. The seminar includes a handout with a distribution contract, articles, a self?defense checklist and other materials. Other topics include criteria for selecting a distributor; what is negotiable and what is not; compliance with state and federal laws when seeking investors; retaining an attorney or producer’s rep; confirming arbitration awards in Superior Court; and, enforcing judgments. To register, please call Jonathan Tominar, VLA Office Administrator, at 212-319-ARTS (2787) ext. 10, or email vla@vlany.org.
In this newsletter:
NEW YORK VOLUNTEER LAWYERS FOR THE ARTS
On Nov. 8 at the Lower Manhattan Cultural Council, Mark will conduct a comprehensive seminar that explores how independent films are financed and distributed. During this Volunteer Lawyers for the Arts seminar, Mark will review include financing via pre?sales, debt and limited partnerships, negotiating tactics, typical contract terms, cross?collateralization and creative accounting. He will address how producers and filmmakers can protect themselves by watering down warranties, getting added to the E&O policy, using lab access letters to retain possession of the negative, utilizing termination and arbitration clauses. The seminar includes a handout with a distribution contract, articles, a self?defense checklist and other materials. Other topics include criteria for selecting a distributor; what is negotiable and what is not; compliance with state and federal laws when seeking investors; retaining an attorney or producer’s rep; confirming arbitration awards in Superior Court; and, enforcing judgments. To register, please call Jonathan Tominar, VLA Office Administrator, at 212-319-ARTS (2787) ext. 10, or email vla@vlany.org.
Tuesday, October 07, 2003
CALIFORNIA SUPREME COURT DECLARES COMICS PROTECTED BY FIRST AMENDMENT
October 7, 2003
In this newsletter:
UPCOMING LECTURES: HAMPTONS FILM FESTIVAL
On Oct. 23 at 1PM, Mark will be participating in a panel discussion at the Hamptons Film Festival. He and other industry professionals will discuss the differences between traditional and alternative financing models, domestic tax incentives, European tax incentives, and financing options for digital vs. celluloid filmmaking. To order tickets for the panel, entitled “Foregoing the Frustrations of Film Financing,” visit www.ticketweb.com/user/?region=ny&query=detail&event=463058 The official Hamptons Film Festival site is http://www.hamptonsfilmfest.org/2003/
NEW YORK VOLUNTEER LAWYERS FOR THE ARTS
On Nov. 8 at the Lower Manhattan Cultural Council, Mark will conduct a comprehensive seminar that explores how independent films are financed and distributed. During this Volunteer Lawyers for the Arts seminar, Mark will review include financing via pre-sales, debt and limited partnerships, negotiating tactics, typical contract terms, cross-collaterization and creative accounting. He will address how producers and filmmakers can protect themselves by watering down warranties, getting added to the E & O policy, using lab access letters to retain possession of the negative, utilizing termination and arbitration clauses. The seminar includes a handout with a distribution contract, articles, a self-defense checklist and other materials. Other topics include criteria for selecting a distributor; what is negotiable and what is not; compliance with state and federal laws when seeking investors; retaining an attorney or producer’s rep; confirming arbitration awards in Superior Court; and, enforcing judgments. To register, please call Jonathan Tominar, VLA Office Administrator, at 212-319-ARTS (2787) ext. 10.
CALIFORNIA SUPREME COURT DECLARES COMICS PROTECTED BY FIRST AMENDMENT
By Chrys Wu, Paralegal to Mark Litwak
In an opinion hailed as preserving First Amendment rights, the California Supreme Court has reversed and remanded a case pitting celebrities’ right of publicity against the First Amendment. DC Comics created a series of stories featuring the characters “Johnny and Edgar Autumn.” These characters were portrayed as vulgar, distasteful villains. Real-life musicians Johnny and Edgar Winter sued DC Comics alleging, among other causes of action, that DC Comics had misappropriated their names and likenesses in a series of comic books featuring characters named “Johnny and Edgar Autumn.” The California high court agreed to review the case, applying a balancing test the court established in the case Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 396. In creating the balancing test, the court wrote that while celebrities had a right to protect the economic value of their names and likenesses, the right of publicity “does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment.” Therefore, First Amendment protections could apply to some uses of celebrity likeness. The court applied its test to determine if DC Comics had appropriated the Winter brothers’ likenesses merely for economic gain, which the First Amendment does not protect; or if the publisher had significantly transformed the likenesses into a creative product, which the First Amendment does protect. The court found that while the characters portrayed in the comic book were “less-than-subtle evocations” of the Winter brothers, they were just cartoon characters in a larger, expressive story. Ultimately, the court wrote, DC Comics had created and sold, and buyers bought, comic books featuring “fanciful, creative characters, not pictures of the Winter brothers.” The comics books are therefore protected by the First Amendment. The case has been reversed and remanded to the Court of Appeal. Winter v. DC Comics, 30 Cal.4th 881, 134 Cal.Rptr.2d 634, 69 P.3d 473, 2003 Cal.LEXIS 3492 (Cal. 2003)
In this newsletter:
UPCOMING LECTURES: HAMPTONS FILM FESTIVAL
On Oct. 23 at 1PM, Mark will be participating in a panel discussion at the Hamptons Film Festival. He and other industry professionals will discuss the differences between traditional and alternative financing models, domestic tax incentives, European tax incentives, and financing options for digital vs. celluloid filmmaking. To order tickets for the panel, entitled “Foregoing the Frustrations of Film Financing,” visit www.ticketweb.com/user/?region=ny&query=detail&event=463058 The official Hamptons Film Festival site is http://www.hamptonsfilmfest.org/2003/
NEW YORK VOLUNTEER LAWYERS FOR THE ARTS
On Nov. 8 at the Lower Manhattan Cultural Council, Mark will conduct a comprehensive seminar that explores how independent films are financed and distributed. During this Volunteer Lawyers for the Arts seminar, Mark will review include financing via pre-sales, debt and limited partnerships, negotiating tactics, typical contract terms, cross-collaterization and creative accounting. He will address how producers and filmmakers can protect themselves by watering down warranties, getting added to the E & O policy, using lab access letters to retain possession of the negative, utilizing termination and arbitration clauses. The seminar includes a handout with a distribution contract, articles, a self-defense checklist and other materials. Other topics include criteria for selecting a distributor; what is negotiable and what is not; compliance with state and federal laws when seeking investors; retaining an attorney or producer’s rep; confirming arbitration awards in Superior Court; and, enforcing judgments. To register, please call Jonathan Tominar, VLA Office Administrator, at 212-319-ARTS (2787) ext. 10.
CALIFORNIA SUPREME COURT DECLARES COMICS PROTECTED BY FIRST AMENDMENT
By Chrys Wu, Paralegal to Mark Litwak
In an opinion hailed as preserving First Amendment rights, the California Supreme Court has reversed and remanded a case pitting celebrities’ right of publicity against the First Amendment. DC Comics created a series of stories featuring the characters “Johnny and Edgar Autumn.” These characters were portrayed as vulgar, distasteful villains. Real-life musicians Johnny and Edgar Winter sued DC Comics alleging, among other causes of action, that DC Comics had misappropriated their names and likenesses in a series of comic books featuring characters named “Johnny and Edgar Autumn.” The California high court agreed to review the case, applying a balancing test the court established in the case Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 396. In creating the balancing test, the court wrote that while celebrities had a right to protect the economic value of their names and likenesses, the right of publicity “does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment.” Therefore, First Amendment protections could apply to some uses of celebrity likeness. The court applied its test to determine if DC Comics had appropriated the Winter brothers’ likenesses merely for economic gain, which the First Amendment does not protect; or if the publisher had significantly transformed the likenesses into a creative product, which the First Amendment does protect. The court found that while the characters portrayed in the comic book were “less-than-subtle evocations” of the Winter brothers, they were just cartoon characters in a larger, expressive story. Ultimately, the court wrote, DC Comics had created and sold, and buyers bought, comic books featuring “fanciful, creative characters, not pictures of the Winter brothers.” The comics books are therefore protected by the First Amendment. The case has been reversed and remanded to the Court of Appeal. Winter v. DC Comics, 30 Cal.4th 881, 134 Cal.Rptr.2d 634, 69 P.3d 473, 2003 Cal.LEXIS 3492 (Cal. 2003)
Wednesday, September 03, 2003
WRITERS’ CLAIM AGAINST AARON SORKIN DISMISSED
September 3, 2003
WRITERS’ CLAIM AGAINST AARON SORKIN DISMISSED
by Chrys Wu, paralegal to Mark Litwak
Writers Kyle Morris and William Richert lost their case before a New York federal court. They wrote a treatment and script called “The President Elopes,” which Castle Rock Entertainment agreed to co-produce. Castle Rock bought the property after they greenlighted Aaron Sorkin’s script, “The American President.”
“The American President” went on to make a solid showing at the box office. “The President Elopes” was never produced. Morris and Richert thought the two projects were substantially similar and asked a WGA arbitration panel to determine if they should receive shared writing credit for “The American President.” The WGA arbitrators determined Sorkin deserved sole writing credit.
Morris and Richert then sued in New York’s federal court, alleging Castle Rock had purchased their property to essentially block its production while filming Sorkin’s project. The writers also claimed breach of contract against Castle Rock for failure to pay additional compensation for “The American President”; copyright infringement by Castle Rock, Sorkin, and Warner Bros., for “The West Wing,” which Sorkin writes; and accused Sorkin and others of conspiracy to defraud the WGA arbitration panel.
A federal district judge has dismissed the case without trial, stating first that the writers were never entitled to make a copyright claim since they had written “The President Elopes” under a work-for-hire agreement and had thereby signed away their copyright. Further, as Castle Rock then properly purchased the copyright to the material, Castle Rock was the rightful copyright holder.
The attorney for Morris and Richert argued that the copyright should revert to the writers as it was “unconscionable” for Castle Rock to own the rights simply to take the script out of production. The judge disagreed, both because “American President” and “President Elopes” had only “superficial similarities” and because the termination clause in Morris and Richert’s contract stipulated that Castle Rock would retain the copyright in the event of termination.
The judge ruled that the breach of contract claim also failed, since the original Castle Rock contract stated additional compensation was only due if the writers were entitled to shared writing credit, which the WGA arbitration panel ruled they should not receive.
As for conspiracy to defraud the WGA panel, the judge determined this was a meritless claim.
Morris v. Castle Rock Entertainment, Inc., 246 F.Supp.2d 290, 2003 U.S.Dist.LEXIS 2420 (S.D.N.Y. 2003)
Mark litwak TO Teach at UCLA and in Seattle This MonthOn Saturday, September 6, Mark Litwak will be teaching “Financing Independent Features and Negotiating a Distribution Agreement” at UCLA. Mark will discuss how financing can be obtained through pre-sales, debt, and limited partnerships. He will also review negotiating tactics, typical contract terms, cross-collaterization, and creative accounting. Handouts include a distribution contract, articles, a self-defense checklist, and other materials. To register, visit http://www.uclaextension.edu, click on the “Quick Enroll” tab and type in “N9506U” in the box that says “Reg #.”
On September 12 and 13, Mark Litwak will be in Seattle on a speaking tour to lecture and answer questions for screenwriters and filmmakers.
Washington Lawyers for the ArtsAt 11:45 a.m. on September 12, Mark will be speaking at the City Centre Building, 1420 Fifth Ave., 4th Floor Conference Room in Seattle. He’ll be discussing "Copyright Law for Literary Artists & Filmmakers: Practical Tips for Protecting Artistic Works." The brown bag lunch seminar is organized by Washington Lawyers for the Arts; MCLE credit may be available. For more information, email director@wa-artlaw.org with your name, postal address, email address and phone number, call (206) 328-7053, or visit the website: http://www.wa-artlaw.org/lecture.html#brownbag9.
Northwest Screenwriters GuildFrom 7 p.m. to 9 p.m. on September 12, Mark will be conducting an informal discussion on "Protecting Your Work from Theft and Prevent Legal Pitfalls" at the Mercer Island Community Center (MICC). The event is hosted by the Northwest Screenwriters Guild. No advance registration is required. Call (206) 842-7995 for more information or visit the NWSG website: http://www.nwsg.org.
The Indie Film GroupOn September 13, Mark will conduct a one-day workshop on "Self-Defense for the Writer & Filmmaker." Mark will describe common abuses and how to prevent them. He’ll also review how to secure underlying rights to a story and the remedies available should you find your project in trouble. This workshop is organized by The Indie Film Group and Circle Rock Productions. For more information or to register online go to http://www.indiefilmgroup.com or call toll free: 1-866-484-3434.
WRITERS’ CLAIM AGAINST AARON SORKIN DISMISSED
by Chrys Wu, paralegal to Mark Litwak
Writers Kyle Morris and William Richert lost their case before a New York federal court. They wrote a treatment and script called “The President Elopes,” which Castle Rock Entertainment agreed to co-produce. Castle Rock bought the property after they greenlighted Aaron Sorkin’s script, “The American President.”
“The American President” went on to make a solid showing at the box office. “The President Elopes” was never produced. Morris and Richert thought the two projects were substantially similar and asked a WGA arbitration panel to determine if they should receive shared writing credit for “The American President.” The WGA arbitrators determined Sorkin deserved sole writing credit.
Morris and Richert then sued in New York’s federal court, alleging Castle Rock had purchased their property to essentially block its production while filming Sorkin’s project. The writers also claimed breach of contract against Castle Rock for failure to pay additional compensation for “The American President”; copyright infringement by Castle Rock, Sorkin, and Warner Bros., for “The West Wing,” which Sorkin writes; and accused Sorkin and others of conspiracy to defraud the WGA arbitration panel.
A federal district judge has dismissed the case without trial, stating first that the writers were never entitled to make a copyright claim since they had written “The President Elopes” under a work-for-hire agreement and had thereby signed away their copyright. Further, as Castle Rock then properly purchased the copyright to the material, Castle Rock was the rightful copyright holder.
The attorney for Morris and Richert argued that the copyright should revert to the writers as it was “unconscionable” for Castle Rock to own the rights simply to take the script out of production. The judge disagreed, both because “American President” and “President Elopes” had only “superficial similarities” and because the termination clause in Morris and Richert’s contract stipulated that Castle Rock would retain the copyright in the event of termination.
The judge ruled that the breach of contract claim also failed, since the original Castle Rock contract stated additional compensation was only due if the writers were entitled to shared writing credit, which the WGA arbitration panel ruled they should not receive.
As for conspiracy to defraud the WGA panel, the judge determined this was a meritless claim.
Morris v. Castle Rock Entertainment, Inc., 246 F.Supp.2d 290, 2003 U.S.Dist.LEXIS 2420 (S.D.N.Y. 2003)
Mark litwak TO Teach at UCLA and in Seattle This MonthOn Saturday, September 6, Mark Litwak will be teaching “Financing Independent Features and Negotiating a Distribution Agreement” at UCLA. Mark will discuss how financing can be obtained through pre-sales, debt, and limited partnerships. He will also review negotiating tactics, typical contract terms, cross-collaterization, and creative accounting. Handouts include a distribution contract, articles, a self-defense checklist, and other materials. To register, visit http://www.uclaextension.edu, click on the “Quick Enroll” tab and type in “N9506U” in the box that says “Reg #.”
On September 12 and 13, Mark Litwak will be in Seattle on a speaking tour to lecture and answer questions for screenwriters and filmmakers.
Washington Lawyers for the ArtsAt 11:45 a.m. on September 12, Mark will be speaking at the City Centre Building, 1420 Fifth Ave., 4th Floor Conference Room in Seattle. He’ll be discussing "Copyright Law for Literary Artists & Filmmakers: Practical Tips for Protecting Artistic Works." The brown bag lunch seminar is organized by Washington Lawyers for the Arts; MCLE credit may be available. For more information, email director@wa-artlaw.org with your name, postal address, email address and phone number, call (206) 328-7053, or visit the website: http://www.wa-artlaw.org/lecture.html#brownbag9.
Northwest Screenwriters GuildFrom 7 p.m. to 9 p.m. on September 12, Mark will be conducting an informal discussion on "Protecting Your Work from Theft and Prevent Legal Pitfalls" at the Mercer Island Community Center (MICC). The event is hosted by the Northwest Screenwriters Guild. No advance registration is required. Call (206) 842-7995 for more information or visit the NWSG website: http://www.nwsg.org.
The Indie Film GroupOn September 13, Mark will conduct a one-day workshop on "Self-Defense for the Writer & Filmmaker." Mark will describe common abuses and how to prevent them. He’ll also review how to secure underlying rights to a story and the remedies available should you find your project in trouble. This workshop is organized by The Indie Film Group and Circle Rock Productions. For more information or to register online go to http://www.indiefilmgroup.com or call toll free: 1-866-484-3434.
Sunday, July 27, 2003
In this newsletter:
kiss-and-tell eliminates rights of publicity and privacy.
22-year old Diana Lynn Daly was caught on tape smooching with a member of Texas rockers Flickerstick, a group featured on VH1's "Bands on the Run" reality show.
Daly had no problem with that. In fact, she herself publicly disclosed the kiss. However, she and the band's drummer were in a bathroom stall, and video of her locking lips was broadcast on the show and still images of same were used in a national advertising campaign.
Embarrassed, Daly sued Viacom, Inc., VH1's parent company, for misappropriation of her right of publicity, invasion of privacy, fraud, and infliction of emotional distress, among other causes of action.
The California District Court judge didn't buy it. Judge Maxine Chesney found that the show is an "expressive work," and as such is protected by the First Amendment. Therefore, Daly could not claim misappropriation of her likeness in the program or in advertisements.
Furthermore, since Daly had publicly disclosed the kiss, she could no longer claim a right of privacy. Ruling that the publicly disclosed act could not be made private again "merely by virtue of the location in which such activity occurs," the judge struck down the privacy claim.
Daly's other claims also failed.
Daly v. Viacom, Inc., 238 F.Supp.2d 1118 (N.D.Cal. 2002)
LAST CALL FOR Hollywood Finance and Distribution symposium, JULY 19–20
On July 19 and 20, I am chairing an event that provides independent filmmakers with the opportunity to learn about finance and distribution opportunities.
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.
Speakers include Rob Aft, Independent Consultant; Jeff Andrick, XL.Ent Media Group; Barry Barnholtz, Barnholtz Entertainment; Craig Baumgarten, MAC Releasing; Craig Bernstein, ICM; Paul Colichman, Regent Entertainment; Michael Dalling, Rogers and Cowan; Joseph Dickstein, Mainline Releasing; Bruce Eisen, Cinema Now; Udy Epstein, Seventh Art Releasing; Erik Feig, Summit Entertainment; Gary Garfinkel, Showtime Networks, Inc.; Marina Grasic, IFG; Judith Jecmen, MGM; Chris Libby, mPRm; Steve Lustgarten, Leo Home Video; Doug Mankoff, Echo Lake Productions; John Manulis, Visionbox Pictures; Sandra J. Ruch, IDA; Morris Ruskin, Shoreline Entertainment; Tony Safford, Fox Searchlight; Art Stribley, Lew Horwitz Organization; and Jared Underwood, Comerica.
The full schedule of events and details can be found at http://www.hollywoodawards.com/conference/market.html
Mark litwak to Speak AT VSDA in Las Vegas
On July 29, Mark will speak about "The Business Side of Filmmaking" during the Video Software Dealers Association Home Entertainment convention held at the Venetian Hotel, Las Vegas.
VSDA has partnered with organizers of the Had To Be Made Film Festival to bring independent filmmakers, distributors and retailers together to promote independent film to the public. This year's Filmmaker Program brings together the nation's leading video retailers, distributors and acquisition professionals to share their ideas and comments. The program is geared to provide networking, learning and sales opportunities.
kiss-and-tell eliminates rights of publicity and privacy.
22-year old Diana Lynn Daly was caught on tape smooching with a member of Texas rockers Flickerstick, a group featured on VH1's "Bands on the Run" reality show.
Daly had no problem with that. In fact, she herself publicly disclosed the kiss. However, she and the band's drummer were in a bathroom stall, and video of her locking lips was broadcast on the show and still images of same were used in a national advertising campaign.
Embarrassed, Daly sued Viacom, Inc., VH1's parent company, for misappropriation of her right of publicity, invasion of privacy, fraud, and infliction of emotional distress, among other causes of action.
The California District Court judge didn't buy it. Judge Maxine Chesney found that the show is an "expressive work," and as such is protected by the First Amendment. Therefore, Daly could not claim misappropriation of her likeness in the program or in advertisements.
Furthermore, since Daly had publicly disclosed the kiss, she could no longer claim a right of privacy. Ruling that the publicly disclosed act could not be made private again "merely by virtue of the location in which such activity occurs," the judge struck down the privacy claim.
Daly's other claims also failed.
Daly v. Viacom, Inc., 238 F.Supp.2d 1118 (N.D.Cal. 2002)
LAST CALL FOR Hollywood Finance and Distribution symposium, JULY 19–20
On July 19 and 20, I am chairing an event that provides independent filmmakers with the opportunity to learn about finance and distribution opportunities.
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.
Speakers include Rob Aft, Independent Consultant; Jeff Andrick, XL.Ent Media Group; Barry Barnholtz, Barnholtz Entertainment; Craig Baumgarten, MAC Releasing; Craig Bernstein, ICM; Paul Colichman, Regent Entertainment; Michael Dalling, Rogers and Cowan; Joseph Dickstein, Mainline Releasing; Bruce Eisen, Cinema Now; Udy Epstein, Seventh Art Releasing; Erik Feig, Summit Entertainment; Gary Garfinkel, Showtime Networks, Inc.; Marina Grasic, IFG; Judith Jecmen, MGM; Chris Libby, mPRm; Steve Lustgarten, Leo Home Video; Doug Mankoff, Echo Lake Productions; John Manulis, Visionbox Pictures; Sandra J. Ruch, IDA; Morris Ruskin, Shoreline Entertainment; Tony Safford, Fox Searchlight; Art Stribley, Lew Horwitz Organization; and Jared Underwood, Comerica.
The full schedule of events and details can be found at http://www.hollywoodawards.com/conference/market.html
Mark litwak to Speak AT VSDA in Las Vegas
On July 29, Mark will speak about "The Business Side of Filmmaking" during the Video Software Dealers Association Home Entertainment convention held at the Venetian Hotel, Las Vegas.
VSDA has partnered with organizers of the Had To Be Made Film Festival to bring independent filmmakers, distributors and retailers together to promote independent film to the public. This year's Filmmaker Program brings together the nation's leading video retailers, distributors and acquisition professionals to share their ideas and comments. The program is geared to provide networking, learning and sales opportunities.
Kiss-and-tell eliminates rights of publicity and privacy
July 27, 2003
In this newsletter:
Kiss-and-tell eliminates rights of publicity and privacy
22-year old Diana Lynn Daly was caught on tape smooching with a member of Texas rockers Flickerstick, a group featured on VH1's "Bands on the Run" reality show.
Daly had no problem with that. In fact, she herself publicly disclosed the kiss. However, she and the band's drummer were in a bathroom stall, and video of her locking lips was broadcast on the show and still images of same were used in a national advertising campaign.
Embarrassed, Daly sued Viacom, Inc., VH1's parent company, for misappropriation of her right of publicity, invasion of privacy, fraud, and infliction of emotional distress, among other causes of action.
The California District Court judge didn't buy it. Judge Maxine Chesney found that the show is an "expressive work," and as such is protected by the First Amendment. Therefore, Daly could not claim misappropriation of her likeness in the program or in advertisements.
Furthermore, since Daly had publicly disclosed the kiss, she could no longer claim a right of privacy. Ruling that the publicly disclosed act could not be made private again "merely by virtue of the location in which such activity occurs," the judge struck down the privacy claim.
Daly's other claims also failed.
Daly v. Viacom, Inc., 238 F.Supp.2d 1118 (N.D.Cal. 2002)
LAST CALL FOR Hollywood Finance and Distribution symposium, JULY 19–20
On July 19 and 20, I am chairing an event that provides independent filmmakers with the opportunity to learn about finance and distribution opportunities.
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.
Speakers include Rob Aft, Independent Consultant; Jeff Andrick, XL.Ent Media Group; Barry Barnholtz, Barnholtz Entertainment; Craig Baumgarten, MAC Releasing; Craig Bernstein, ICM; Paul Colichman, Regent Entertainment; Michael Dalling, Rogers and Cowan; Joseph Dickstein, Mainline Releasing; Bruce Eisen, Cinema Now; Udy Epstein, Seventh Art Releasing; Erik Feig, Summit Entertainment; Gary Garfinkel, Showtime Networks, Inc.; Marina Grasic, IFG; Judith Jecmen, MGM; Chris Libby, mPRm; Steve Lustgarten, Leo Home Video; Doug Mankoff, Echo Lake Productions; John Manulis, Visionbox Pictures; Sandra J. Ruch, IDA; Morris Ruskin, Shoreline Entertainment; Tony Safford, Fox Searchlight; Art Stribley, Lew Horwitz Organization; and Jared Underwood, Comerica.
The full schedule of events and details can be found at http://www.hollywoodawards.com/conference/market.html
Mark litwak to Speak AT VSDA in LAS vegas On July 29, Mark will speak about "The Business Side of Filmmaking" during the Video Software Dealers Association Home Entertainment convention held at the Venetian Hotel, Las Vegas.
VSDA has partnered with organizers of the Had To Be Made Film Festival to bring independent filmmakers, distributors and retailers together to promote independent film to the public. This year's Filmmaker Program brings together the nation's leading video retailers, distributors and acquisition professionals to share their ideas and comments. The program is geared to provide networking, learning and sales opportunities.Click here for more info.
In this newsletter:
Kiss-and-tell eliminates rights of publicity and privacy
22-year old Diana Lynn Daly was caught on tape smooching with a member of Texas rockers Flickerstick, a group featured on VH1's "Bands on the Run" reality show.
Daly had no problem with that. In fact, she herself publicly disclosed the kiss. However, she and the band's drummer were in a bathroom stall, and video of her locking lips was broadcast on the show and still images of same were used in a national advertising campaign.
Embarrassed, Daly sued Viacom, Inc., VH1's parent company, for misappropriation of her right of publicity, invasion of privacy, fraud, and infliction of emotional distress, among other causes of action.
The California District Court judge didn't buy it. Judge Maxine Chesney found that the show is an "expressive work," and as such is protected by the First Amendment. Therefore, Daly could not claim misappropriation of her likeness in the program or in advertisements.
Furthermore, since Daly had publicly disclosed the kiss, she could no longer claim a right of privacy. Ruling that the publicly disclosed act could not be made private again "merely by virtue of the location in which such activity occurs," the judge struck down the privacy claim.
Daly's other claims also failed.
Daly v. Viacom, Inc., 238 F.Supp.2d 1118 (N.D.Cal. 2002)
LAST CALL FOR Hollywood Finance and Distribution symposium, JULY 19–20
On July 19 and 20, I am chairing an event that provides independent filmmakers with the opportunity to learn about finance and distribution opportunities.
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.
Speakers include Rob Aft, Independent Consultant; Jeff Andrick, XL.Ent Media Group; Barry Barnholtz, Barnholtz Entertainment; Craig Baumgarten, MAC Releasing; Craig Bernstein, ICM; Paul Colichman, Regent Entertainment; Michael Dalling, Rogers and Cowan; Joseph Dickstein, Mainline Releasing; Bruce Eisen, Cinema Now; Udy Epstein, Seventh Art Releasing; Erik Feig, Summit Entertainment; Gary Garfinkel, Showtime Networks, Inc.; Marina Grasic, IFG; Judith Jecmen, MGM; Chris Libby, mPRm; Steve Lustgarten, Leo Home Video; Doug Mankoff, Echo Lake Productions; John Manulis, Visionbox Pictures; Sandra J. Ruch, IDA; Morris Ruskin, Shoreline Entertainment; Tony Safford, Fox Searchlight; Art Stribley, Lew Horwitz Organization; and Jared Underwood, Comerica.
The full schedule of events and details can be found at http://www.hollywoodawards.com/conference/market.html
Mark litwak to Speak AT VSDA in LAS vegas On July 29, Mark will speak about "The Business Side of Filmmaking" during the Video Software Dealers Association Home Entertainment convention held at the Venetian Hotel, Las Vegas.
VSDA has partnered with organizers of the Had To Be Made Film Festival to bring independent filmmakers, distributors and retailers together to promote independent film to the public. This year's Filmmaker Program brings together the nation's leading video retailers, distributors and acquisition professionals to share their ideas and comments. The program is geared to provide networking, learning and sales opportunities.Click here for more info.
Thursday, June 12, 2003
Court decision puts IMPLIED-IN-FACT CONTRACTS under scrutiny
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)
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 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
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