Answers from Mark Litwak, Attorney At Law
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: Our client has a story to tell and there has been some interest expressed and indeed an actual offer to purchase movie rights to his story. How can I find out what constitutes a typical arrangement for the sale of movie rights to someone's "true life story"? I need to know more about what is and is not acceptable in the negotiation process, where I can find sample contracts, etc.
Answer: There is a discussion of this topic in my book, Dealmaking in the Film & Television Industry, which discusses life story rights and has some sample contracts. The price for life story rights varies depending on the appeal of the story. For a TV network broadcast movie, it might be $50,000 to several hundred thousand dollars. For feature films, it could be two times or more that amount. If the subject is famous, the figure could be considerably higher. On the other hand, some movies are made about subjects without their permission or authorization. Under the first amendment, one is generally free to write about other people (e.g., an unauthorized biography) without their permission. This also applies to filmmakers.
Question: I've recently written a biographical script about a famous person who recently died. As I understand it I can use his life story without permission because his death means he has no civil rights. But what about the rights of the other people portrayed in my script? Do I need to get their permission before I can proceed or, as long as what I portray is public information (the script is based on a number of books and newspaper articles), do I not need their permission at all?
Answer: The rights of privacy and the right to protect one's reputation are considered personal rights and they expire when the person dies. However, other people that you may want to portray that are alive might be able to sue for invasion of privacy or defamation should you violate their rights. Some of these other characters you might be able to fictionalize, and if they are not identifiable, they might have difficulty proving they had been damaged. A disclaimer that the story is fictional may also give you some protection. Some rights, such as the right of publicity, which may be needed if any merchandising spin-offs are planned, do not expire on death. State law varies on this issue.
Question: What are the legal issues pertaining to writing a screenplay based on someone's life story? What rights need to be secured, etc.? Is it advisable to engage an attorney prior to any discussion about securing rights?
Answer: This is a difficult question to answer because the rights you need to obtain depend upon how much of the life story is in the public domain, and whether the subject of the life story is alive or dead. Moreover, if you fictionalize a story you may be able to avoid buying life story rights. Generally speaking, if you make a movie about someone, you are protected on the First Amendment and do not need a release. However, if you invade their privacy, hurt their reputation, want access to any confidential information that is not publicly available, or infringe upon their right of publicity, you could potentially be sued. Life story rights encompass a release for these causes of action. My book, Dealmaking in the Film and Television Industry, speaks at length about the issues involved in obtaining life story rights and when you need to purchase such rights.
Question: I am currently researching a true story that took place in the '20s. If everyone portrayed in the property is dead, do I need to obtain releases from the deceased's relatives? If a person's estate has been registered with the Secretary of State in California, can I write a true story since it falls more on the information side and less on the commercial side of the spectrum?
Answer: There are many fewer potential legal problems in depicting individuals who are deceased than those who are alive. That is because the rights to sue for defamation, which is harm to one's reputation, and for invasion of privacy, are considered personal rights and they do not descend to one's heirs. Thus, there is less reason to get permission from the heirs.
However, if you want to use the deceased person's name or likeness on merchandising, this is a right that may descend depending upon which state laws apply. Moreover, if you want the estate's cooperation so that it will provide you certain information that's not otherwise publicly available, like diaries, then you have another reason to make a deal with the heirs. See Section 990 of the Civil Code of California for more details on the right of publicity in California in regard to deceased individuals.
Question: Thanks for your continuing insight. My question deals with copyright and "optioning." The main character in a screenplay I'm working on is deceased (as is his wife—the other main character). Many non-fiction books have been written about him (some containing his actual diaries). What information about him—contained within these books—can be considered "historical fact," and therefore exempt from copyright infringement claims? I'm especially curious about the diaries.
Also—one of the books was written by another important character in the screenplay—still living. Should I contact her about "optioning" the motion picture rights to her book (again—non-fiction) or "optioning" the motion picture rights to her story? One more item—when researching this subject, if I interview people about him—do I need to ask them to sign a release of any kind? As you can tell—I'm new to this, and a bit confused. Thanks again. I look forward to reading your answer.
Answer: Historical facts are not copyrightable whether they are incorporated in someone else's work or not. What copyright law protects is the expression of an author - the particular way that an author expresses himself. In other words, ten authors can write biographies about George Washington and each can retain control over their particular approach to the material and how they tell the story, but no one has any monopoly over the underlying facts.
Life story rights, on the other hand, are a different matter. Essentially, the purchaser of life story rights is obtaining a release protecting the buyer of the rights from a suit predicated on defamation, invasion of privacy, right of publicity and sometimes the buyer is obtaining cooperation and access to information that he might not otherwise be able to obtain. When the subject of a life story is deceased, there's much less reason to option life story rights because the rights of defamation and invasion of privacy are personal and do not descend to one's heirs.
In regard to your question about releases from interview subjects, generally speaking, journalists do not need to get such a release unless they need to acquire life story rights or a depiction release. However, it never hurts to have a release, and if you can do so without cost, it's not a bad idea.
Question: I am interested in writing a screenplay based on a friend's life story. I am having some trouble getting him to sign over the rights. One condition is that he wants to remain anonymous. How does a studio know a story is based on real events if the subject wishes to remain anonymous? Are there any books that explain the process of obtaining life story rights? Secondly, must I obtain permission or rights from everyone I will use in the story, mainly his father and mother? Any information you could give me on this would be greatly appreciated.
Answer: The studio may not care whether or not the real name of the individual is used. It will probably depend upon whether his name will help attract an audience to the picture. For instance, a studio wanting to do the Amy Fisher story will want to use her real name because that is what will attract an audience. On the other hand, although the events in your friend's life are interesting, and the studio wants to say that it is based on a true story, his name may be not known to the public, and therefore the use of his name may not be important. As far as the studio knowing it is a true story—this can be disclosed to the studio even though it is not necessarily disclosed to the public. The character in the story can have a fictional name, and you could change the circumstances enough so that your friend will not be identifiable from the context.
There is a section in my book, Dealmaking in the Film & Television Industry, that covers the process of obtaining life story rights. These are usually obtained on an Option/Purchase basis or a grant with a reversion clause. As far as obtaining permission from other people in the film, this is not always required. Certainly, if they are minor characters and you fictionalize them, you can probably avoid purchasing their life story rights. It should also be noted that if the person has done something newsworthy, you might have a right under the First Amendment to depict them without a release.
Question: You've touched on the subject of writing someone's life story a few times, but I haven't seen this exact wrinkle addressed: I want to write a screenplay on an incident of the 1920's. All the characters are deceased, which makes things easier. I've been researching various biographies and news clippings, but my question comes specifically with the use of the diaries and letters of these historical figures. My interest in being historically accurate seems to conflict with copyright issues. If I use their phrases and quotes, I'm violating copyright, and if I use my words in their mouths, I'm sacrificing accuracy. Are diaries a special case? Are they more in the realm of 'historical fact'? As you can see, I'm confused. By the way, the diaries that I refer to are of two kinds: one is published (as memoirs) and the rest are unpublished (residing in various museums or libraries). I have a similar question with regard to personal letters. Your thoughts are appreciated.
Answer: Diaries are no different from other copyrightable matter. Copyright can attach to both published and unpublished works. Under the old copyright law in effect before 1976, if one chose to publish one's work, and did not include a copyright notice, then the copyright might be lost. Since the characters are deceased, you do not have to worry about being sued for invasion of privacy or defamation. In some states, the right of publicity descends to one's heirs. In other states, it does not. If it descends, you may encounter some problems as far as spinning off merchandise from a film. However, you would be protected under the First Amendment as far as making the film about real-life individuals without a release. Relying upon the content and information in the diaries would not be copyright infringement. Facts, historical incidents, ideas, themes, and names are not copyrightable. However, if you start extensively quoting from the diaries (assuming the diaries are still protected under copyright law), that could be an infringement of the copyright owner's rights. Copyright is descendible and the heirs to the copyright owner can inherit the copyright. Before 1976, a copyright would last for 28 years, and then could be renewed for an additional 28 years. When the law was changed, an additional period of 19 years was added. Thus, it is likely that any work created more than 75 years ago is now in the public domain. If the copyright was not renewed, then the copyright could have expired earlier. You will have to determine when the copyright came into existence.
Question: If I sell my story and later decide I want to write another story that includes one or more of the characters from my first story, would I have to negotiate into the contract the rights to do so? For example, I write a script, it is made into a movie and then five years later I decide to write another script, or maybe a book, which deals with one of the supporting characters from that first script. Would I have to have contracted at the time of sale to keep the rights to the characters?
ANSWER: If you reserved author written sequel rights, you may be able to use the characters in a subsequent work. You need to carefully review the language in your agreement to determine what your rights are.
If you sold the entire copyright to your script, then the new owner now has all rights to it, until such time as it goes into the public domain. Those rights include the use of the characters in the work to the extent that characters are copyrightable. Finely drawn characters, especially those with a visual component such as a comic book character, can be protected under copyright law. Likewise, characters with a name, such as "James Bond" might be protectable under the laws of unfair competition. But general character and personality traits, such as a "hard-boiled private eye," are not copyrightable, and freely available for all writers to use. There are dozens of hard-boiled private eye characters created by different authors. So even if your character is now owned by another, you could create a new and different character that might share some of the same personality characteristics of your prior character.
When writers create an original script on their own (i.e., not as a work for hire for another), they often are able to reserve certain rights to their scripts when they sell the motion picture rights. These reserved rights often include dramatic, radio, live television, print publication and author written sequel rights. Moreover, if you had a reversion clause in your purchase agreement, it might provide that if the buyer does not produce a movie based on your script within a certain time (i.e., five years), all rights revert to you. Finally, if a writer is a member of the Writers Guild, he/she may be entitled to certain "separated rights" by virtue of the collective bargaining agreement between the guild and its signatory companies.
Wednesday, May 05, 2004
Frequently Asked Questions: Financing
Answers from Mark Litwak, Attorney At Law
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: Can you please provide me with the title of any books or other publications that provide a good overview of financing in the motion picture industry? I am particularly interested in limited partnerships and alternative forms of financing.
Answer: Financing in the motion picture industry covers a wide range of diverse topics. You might check out: Movie Money: Understanding Hollywood's (Creative) Accounting Practices by Bill Daniels & David Leedy; and The Biz: The Basic Business, Legal and Financial Aspects of the Film Industry by Schuyler M. Moore. I have just recently completed a book called Risky Business: Financing and Distributing Independent Films, which will be published by Silman-James Press.
If you are going to take equity investments you will need to comply with various security laws. This is a very complicated area of law, and it's best to retain a securities attorney if you are thinking of raising funds. See my article on film financing for additional information (at www.marklitwak.com).
Question: Can you tell me what an acceptable finder's fee is for someone bringing financing to a project that I've created? And would I pay this percentage based on the entire funding for the project or just the portion that I'll personally receive.
Answer: Finders' fees are generally 5% of the amount of money that the finder brings into a project. The percentage may be reduced if large amounts are raised.
Question: I am a screenwriter and co-producer working with established independents to develop a family film I wrote. We have received a 20/80 offer from a European trust: if we put up 20% of our $4 million budget, they will fund the rest of the film. Operating through their "sister" company, they have given us a letter of intent and an 8-page offer agreement, the specific terms of which they assure us are negotiable. We are understandably pleased about this, but part of the deal consists of depositing our 20% in a European bank, under our control, with them adding the remaining 80% within 30-60 days. After that, the agreement says, we can begin drawdown per our prescribed schedule to make the film. We pay a 2% finders fee and 6% interest on the funds we use, including our 20% because the sister company will take responsibility for repayment of the first money within one year after our agreement is signed. They also want 35% of our adjusted gross, meaning after our distributor gets paid, until we have repaid our loan and the interest accrued. We do not have to begin making interest payments until 2 years after the film is released. Now, this all sounds very nice, and my producers are pleased. I am a skeptic, however. I was raised to believe there is no free lunch, and if anything sounds too good to be true, it probably is. Despite the fact that the sister company rep says the terms are negotiable, he will not reveal the names or sources of the European trust, and he says that's deliberate because they don't want to be known. One of my producers says this is no surprise. But without knowing exactly who we are dealing with, how can we do diligence on this agreement? The sister company rep says that is why they will issue a bank guarantee from top rated bank for our 20%. It's also why the agreement says if they default, we get our money back, and why the agreement requires that we hire a mutually agreed upon independent auditor to oversee the escrow account. Yet they admit, after we deposit our 20%, all the money will be under THEIR control. They insist that they have built safeguards into the agreement that will protect us, and they are willing to add more. But, as much as I am dying to make this movie, I would hate to be ripped off for $800 K. What is your reaction? What kind of additional safeguards would you recommend?
Answer: My advice to you is that you should thoroughly check out the track record and integrity of the parties that you are thinking of going into business with. Then, hire yourself a good entertainment attorney to negotiate a tight agreement on your behalf.
Question: Could you give me any information on sponsoring? I'm currently in the middle of my script and I plan to produce and direct it myself. I've heard that sponsoring is quite common in the U.S. (I'm German but plan to make an American movie) and now would like to know more about it. Any kind of information would be greatly appreciated.
Answer: If what you mean by sponsoring is product placements, a good place to start is the Hollywood Bluebook Directory, which has a listing of product placement agents. These agents don't represent people they represent products. Product manufacturers may be willing to donate free goods or services and occasionally some money in order for their product to be shown in a movie. The amount of money that can be obtained from sponsors for feature films is usually quite limited. However, the Care Bears movies were reportedly funded entirely by the Care Bears Toy Company and Steven Spielberg's "The Goonies" received a hundred thousand dollars from Nabisco for plugging the Baby Ruth candy bars. Specialty and art films are unlikely to receive much cash in return for product placement.
Question: Several investors in my area, familiar with my company, work and industry relationships have banded together and offered to put together a sizeable pool of funds to make several films. As I am located in the state of Texas, I am wondering what is the best vehicle to use to accept the funds. The investors do not want involvement on a project-by-project basis so we are looking at doing this as a "blind" pool. The last part of the question is where would I find a boilerplate agreement that I could rework for the specifics of this deal.
Answer: This is much too complex a question to be answered summarily. The best vehicle would depend on the facts and circumstances, particularly how much risk the parties are willing to bear and who will control the enterprise. There may also be tax considerations. If you don't understand all the issues involved here, it would be dangerous indeed for you to rely on a boilerplate agreement.
Question: What is the difference between a "business plan" and a "limited offering memorandum"? Am I allowed to show and propose investment opportunities (i.e., business plan) to investors without having to file with the SEC before I actually receive financing from them?
Answer: A business plan and limited offering memorandum are similar in that they both discuss a proposed business endeavor. A business plan is meant for a potential business partner who will actively run the business with you. A limited offering memorandum is designed to comply with federal and state security laws by making full disclosure to a prospective passive investor. Federal and state security laws require that you make full disclosure before you take money from an investor who is not actively running the business. The disclosure document is called a prospectus or a limited offering memorandum. You do not need to register it with the SEC if you fall within one of the limited offering exemptions. This is a very complex area and you should consult an attorney who has experience in both entertainment and security law before proceeding. There are criminal and civil penalties for violating the law. Do not use a business plan to solicit money from private investors who are not going to be actively involved in making your movie.
Question: I'd like to learn more about presales. What specifically do I need to provide the presales agent to be taken seriously by potential investors, distributors, etc.? How do I find a presales agent, in particular, one who works with ultra-low budget features (with little star power attached)?
Answer: In order to find a foreign sales agent who will do pre-sales for you, you should check out the bumper editions of the trade papers (Hollywood Reporter, Variety, Screen International and Moving Pictures). Each of these publications distributes an extensive bumper edition before the major television and film markets. These editions list various foreign sales companies, along with ads for films being sold. By looking through these bumper editions, you can locate foreign sales companies that have a history of making pre-sales for your genre of picture. In order to succeed in the pre-sale business, you need a package that is sufficiently strong that a foreign buyer would be willing to make a binding commitment and sign a contract to purchase your film before it is made. While there are no hard and fast rules, the most desirable projects are those with name actors, to be made by a director with a track record, and based on a commercial story.
Question: What is the standard on paying back investors in an independent film? Specifically do investors continue to make money on the film indefinitely, or is there a cut-off point in relation to time or percentage made back on their initial investment?
Answer: Generally speaking, the first monies that come in from a film go to repay the capital contribution of the investors. In many instances, the investors may receive a return of 110% or 115% of their investment to compensate them for the loss of the use of their money over time. Then after all deferments and any other debts are paid, the revenue left (i.e., the profit) is typically split 50-50 with the producer. In other words, 50% of the profits go to the investors. The 50% that goes to the producer is often split between the producer and any third parties that are entitled to profit participation (i.e., the writer, director, or stars).
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: Can you please provide me with the title of any books or other publications that provide a good overview of financing in the motion picture industry? I am particularly interested in limited partnerships and alternative forms of financing.
Answer: Financing in the motion picture industry covers a wide range of diverse topics. You might check out: Movie Money: Understanding Hollywood's (Creative) Accounting Practices by Bill Daniels & David Leedy; and The Biz: The Basic Business, Legal and Financial Aspects of the Film Industry by Schuyler M. Moore. I have just recently completed a book called Risky Business: Financing and Distributing Independent Films, which will be published by Silman-James Press.
If you are going to take equity investments you will need to comply with various security laws. This is a very complicated area of law, and it's best to retain a securities attorney if you are thinking of raising funds. See my article on film financing for additional information (at www.marklitwak.com).
Question: Can you tell me what an acceptable finder's fee is for someone bringing financing to a project that I've created? And would I pay this percentage based on the entire funding for the project or just the portion that I'll personally receive.
Answer: Finders' fees are generally 5% of the amount of money that the finder brings into a project. The percentage may be reduced if large amounts are raised.
Question: I am a screenwriter and co-producer working with established independents to develop a family film I wrote. We have received a 20/80 offer from a European trust: if we put up 20% of our $4 million budget, they will fund the rest of the film. Operating through their "sister" company, they have given us a letter of intent and an 8-page offer agreement, the specific terms of which they assure us are negotiable. We are understandably pleased about this, but part of the deal consists of depositing our 20% in a European bank, under our control, with them adding the remaining 80% within 30-60 days. After that, the agreement says, we can begin drawdown per our prescribed schedule to make the film. We pay a 2% finders fee and 6% interest on the funds we use, including our 20% because the sister company will take responsibility for repayment of the first money within one year after our agreement is signed. They also want 35% of our adjusted gross, meaning after our distributor gets paid, until we have repaid our loan and the interest accrued. We do not have to begin making interest payments until 2 years after the film is released. Now, this all sounds very nice, and my producers are pleased. I am a skeptic, however. I was raised to believe there is no free lunch, and if anything sounds too good to be true, it probably is. Despite the fact that the sister company rep says the terms are negotiable, he will not reveal the names or sources of the European trust, and he says that's deliberate because they don't want to be known. One of my producers says this is no surprise. But without knowing exactly who we are dealing with, how can we do diligence on this agreement? The sister company rep says that is why they will issue a bank guarantee from top rated bank for our 20%. It's also why the agreement says if they default, we get our money back, and why the agreement requires that we hire a mutually agreed upon independent auditor to oversee the escrow account. Yet they admit, after we deposit our 20%, all the money will be under THEIR control. They insist that they have built safeguards into the agreement that will protect us, and they are willing to add more. But, as much as I am dying to make this movie, I would hate to be ripped off for $800 K. What is your reaction? What kind of additional safeguards would you recommend?
Answer: My advice to you is that you should thoroughly check out the track record and integrity of the parties that you are thinking of going into business with. Then, hire yourself a good entertainment attorney to negotiate a tight agreement on your behalf.
Question: Could you give me any information on sponsoring? I'm currently in the middle of my script and I plan to produce and direct it myself. I've heard that sponsoring is quite common in the U.S. (I'm German but plan to make an American movie) and now would like to know more about it. Any kind of information would be greatly appreciated.
Answer: If what you mean by sponsoring is product placements, a good place to start is the Hollywood Bluebook Directory, which has a listing of product placement agents. These agents don't represent people they represent products. Product manufacturers may be willing to donate free goods or services and occasionally some money in order for their product to be shown in a movie. The amount of money that can be obtained from sponsors for feature films is usually quite limited. However, the Care Bears movies were reportedly funded entirely by the Care Bears Toy Company and Steven Spielberg's "The Goonies" received a hundred thousand dollars from Nabisco for plugging the Baby Ruth candy bars. Specialty and art films are unlikely to receive much cash in return for product placement.
Question: Several investors in my area, familiar with my company, work and industry relationships have banded together and offered to put together a sizeable pool of funds to make several films. As I am located in the state of Texas, I am wondering what is the best vehicle to use to accept the funds. The investors do not want involvement on a project-by-project basis so we are looking at doing this as a "blind" pool. The last part of the question is where would I find a boilerplate agreement that I could rework for the specifics of this deal.
Answer: This is much too complex a question to be answered summarily. The best vehicle would depend on the facts and circumstances, particularly how much risk the parties are willing to bear and who will control the enterprise. There may also be tax considerations. If you don't understand all the issues involved here, it would be dangerous indeed for you to rely on a boilerplate agreement.
Question: What is the difference between a "business plan" and a "limited offering memorandum"? Am I allowed to show and propose investment opportunities (i.e., business plan) to investors without having to file with the SEC before I actually receive financing from them?
Answer: A business plan and limited offering memorandum are similar in that they both discuss a proposed business endeavor. A business plan is meant for a potential business partner who will actively run the business with you. A limited offering memorandum is designed to comply with federal and state security laws by making full disclosure to a prospective passive investor. Federal and state security laws require that you make full disclosure before you take money from an investor who is not actively running the business. The disclosure document is called a prospectus or a limited offering memorandum. You do not need to register it with the SEC if you fall within one of the limited offering exemptions. This is a very complex area and you should consult an attorney who has experience in both entertainment and security law before proceeding. There are criminal and civil penalties for violating the law. Do not use a business plan to solicit money from private investors who are not going to be actively involved in making your movie.
Question: I'd like to learn more about presales. What specifically do I need to provide the presales agent to be taken seriously by potential investors, distributors, etc.? How do I find a presales agent, in particular, one who works with ultra-low budget features (with little star power attached)?
Answer: In order to find a foreign sales agent who will do pre-sales for you, you should check out the bumper editions of the trade papers (Hollywood Reporter, Variety, Screen International and Moving Pictures). Each of these publications distributes an extensive bumper edition before the major television and film markets. These editions list various foreign sales companies, along with ads for films being sold. By looking through these bumper editions, you can locate foreign sales companies that have a history of making pre-sales for your genre of picture. In order to succeed in the pre-sale business, you need a package that is sufficiently strong that a foreign buyer would be willing to make a binding commitment and sign a contract to purchase your film before it is made. While there are no hard and fast rules, the most desirable projects are those with name actors, to be made by a director with a track record, and based on a commercial story.
Question: What is the standard on paying back investors in an independent film? Specifically do investors continue to make money on the film indefinitely, or is there a cut-off point in relation to time or percentage made back on their initial investment?
Answer: Generally speaking, the first monies that come in from a film go to repay the capital contribution of the investors. In many instances, the investors may receive a return of 110% or 115% of their investment to compensate them for the loss of the use of their money over time. Then after all deferments and any other debts are paid, the revenue left (i.e., the profit) is typically split 50-50 with the producer. In other words, 50% of the profits go to the investors. The 50% that goes to the producer is often split between the producer and any third parties that are entitled to profit participation (i.e., the writer, director, or stars).
Frequently Asked Questions: Distribution
Answers from Mark Litwak, Attorney At Law
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: Realistically speaking if I self-finance a picture for four million dollars and have stars such as Kevin Spacey, Forrest Whitaker, Jean Reno or some other international star, and Natasha Henstridge, do you think I will have enough clout to get a distributor to pony up all my budget for the rights and some guaranteed advances on profits so that I could get back around 5 million from a North American Distributor for all rights (so my investors will see their cash back), exclusive of future profits? Also, would you recommend I sell the film territory by territory, country by country, before or after it is made? And do you think from foreign, even if I use a sales rep, I could get at least another two to four million in sales/guarantees? Breaking down the major countries: Germany, Italy, France, U.K., Japan, Spain, and Netherlands, what do you think I could get from each based on the level of talent I mentioned, or any similar level talent, including the fact the project is a psycho-erotic drama.
Answer: I think it is possible, but not likely, that you will get your five million back and then some from a domestic distributor. But, of course, everything depends on the quality of the film that is produced. However, if you look at what most indie films earn domestically, it is not likely. I think you should try to reduce your budget, put as much as possible up on the screen, and check beforehand with an experienced distributor to determine the appeal of the cast in the international marketplace. If you have not sold to foreign buyers before, you may find it difficult to convince them to purchase from you even if you have an attractive package. It is likely that you will need to work with an experienced and honest sales agent to succeed.
Question: I've purchased and read both of your books. They're excellent. Here's my Q. If you have a great script (romantic action adventure) and you raise the negative costs through private funding (limited partnership, etc.) and you have attached a star and well respected director, what are your chances of negotiating a distribution deal favorable enough to give your investors some confidence they will see some return. In other words, if I've got 25 million dollars and the distributor invests 15 - 25 in advertising and distribution what are the odds on a 50/50 1st dollar in split between the producer and distributor?
Answer: If your movie is something that is highly desirable, then you'll have a lot of negotiating clout and can probably get a good deal. On the other hand, if the movie doesn't turn out that well, you may not be able to get any distribution at all. It's very rare for someone to raise money from private investors to fund a 25 million dollar picture. Most pictures funded by private investors have much lower budgets. If you deal with honest distributors and have a tight contract, to make a good movie, you stand a good chance of seeing money.
Question: A friend and I are trying to produce our first independent film. We plan to raise money for the production costs through private investors. At the same time we are trying to live as we do this. Is it possible for us to receive small amounts of money from people and local businesses, $100 here $500 there given to us and the project as a GIFT, so that we can continue our fundraising practices full time? These would not be repaid but we would give a "special thanks to" in the credits. Is this possible? We would like to approach local businesses with this concept since the subject matter of the film is of local interest. Are there any guidelines for this sort of thing?
Answer: There is no problem with other people giving you gifts, and there is no problem with giving credits or acknowledging people for gifts in your credits Gifts and loans are not a "security." Consequently, the security laws do not apply. As far as taking money from investors, however, if these investors are passive investors, that is, they are not actively involved in making the movie, you should make sure that you comply with state and federal securities laws. You should never take money from investors until you have given them a written limited offering memorandum, sometimes called a prospectus. This should be prepared by a lawyer who is knowledgeable in entertainment and securities laws.
Question: Can you provide me with any information related to the direct-to-video industry? If a have a script, how can I get it to video vs. network or cable?
Answer: Go to a video store and find the names of the distributors of videos like yours, or read Video Business Magazine, which lists many videos including direct-to-video programs. You may also want to attend the next Video Software Dealers Association (VSDA), a trade convention for people in the video business.
Question: The Estate we represent is in negotiation with a studio to obtain payment for domestic distribution rights to a film made some years ago. The studio earns about $25,000 - $30,000 per year from these rights. The term for which they seek re-license will be 47 years. We have not previously encountered this situation and wonder what appropriate compensation would be. The studio has already made a conservative offer so they view the income as viable. We thought anything between ten and fifty percent of their income can be defended but hope to make an offer that is based on some precedent. Can you please advise?
Answer: The film was made a number of years ago and is now earning $25,000 to $30,000 per year. I assume this money is coming from the home video market. Producers of films often receive a royalty of 20-25% of the wholesale price of home videos sold. Keep in mind that many studios license their films to their own home video subsidiaries. Those subsidiaries pay a royalty to the parent company, which in turn, shares that revenue with the producer. So I would first make sure that this is all they are generating from exploitation of these rights. Ascertain exactly which rights they are using and reserve all other rights. Then try to obtain at least 20% of the wholesale price as a royalty.
Question: I have been working with developers of interactive content for broadband distribution via e.g. web TV, @Home, etc. and wondered whether you have been adding language to standard talent and production agreements for television programming in contemplation of the types of "derivatives" to a show resulting from the convergence with other content/technology/etc. after the show has been produced. I'm curious as to whether and what the industry is focusing on in negotiating talent agreements (for example) in light of convergence technologies?
Answer: Yes, attorneys are becoming much more careful in limiting what rights their clients are granting. In many cases, we specifically restrict the use of films so that they cannot be disseminated over the Internet or turned into interactive programs unless those rights are also purchased.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: Realistically speaking if I self-finance a picture for four million dollars and have stars such as Kevin Spacey, Forrest Whitaker, Jean Reno or some other international star, and Natasha Henstridge, do you think I will have enough clout to get a distributor to pony up all my budget for the rights and some guaranteed advances on profits so that I could get back around 5 million from a North American Distributor for all rights (so my investors will see their cash back), exclusive of future profits? Also, would you recommend I sell the film territory by territory, country by country, before or after it is made? And do you think from foreign, even if I use a sales rep, I could get at least another two to four million in sales/guarantees? Breaking down the major countries: Germany, Italy, France, U.K., Japan, Spain, and Netherlands, what do you think I could get from each based on the level of talent I mentioned, or any similar level talent, including the fact the project is a psycho-erotic drama.
Answer: I think it is possible, but not likely, that you will get your five million back and then some from a domestic distributor. But, of course, everything depends on the quality of the film that is produced. However, if you look at what most indie films earn domestically, it is not likely. I think you should try to reduce your budget, put as much as possible up on the screen, and check beforehand with an experienced distributor to determine the appeal of the cast in the international marketplace. If you have not sold to foreign buyers before, you may find it difficult to convince them to purchase from you even if you have an attractive package. It is likely that you will need to work with an experienced and honest sales agent to succeed.
Question: I've purchased and read both of your books. They're excellent. Here's my Q. If you have a great script (romantic action adventure) and you raise the negative costs through private funding (limited partnership, etc.) and you have attached a star and well respected director, what are your chances of negotiating a distribution deal favorable enough to give your investors some confidence they will see some return. In other words, if I've got 25 million dollars and the distributor invests 15 - 25 in advertising and distribution what are the odds on a 50/50 1st dollar in split between the producer and distributor?
Answer: If your movie is something that is highly desirable, then you'll have a lot of negotiating clout and can probably get a good deal. On the other hand, if the movie doesn't turn out that well, you may not be able to get any distribution at all. It's very rare for someone to raise money from private investors to fund a 25 million dollar picture. Most pictures funded by private investors have much lower budgets. If you deal with honest distributors and have a tight contract, to make a good movie, you stand a good chance of seeing money.
Question: A friend and I are trying to produce our first independent film. We plan to raise money for the production costs through private investors. At the same time we are trying to live as we do this. Is it possible for us to receive small amounts of money from people and local businesses, $100 here $500 there given to us and the project as a GIFT, so that we can continue our fundraising practices full time? These would not be repaid but we would give a "special thanks to" in the credits. Is this possible? We would like to approach local businesses with this concept since the subject matter of the film is of local interest. Are there any guidelines for this sort of thing?
Answer: There is no problem with other people giving you gifts, and there is no problem with giving credits or acknowledging people for gifts in your credits Gifts and loans are not a "security." Consequently, the security laws do not apply. As far as taking money from investors, however, if these investors are passive investors, that is, they are not actively involved in making the movie, you should make sure that you comply with state and federal securities laws. You should never take money from investors until you have given them a written limited offering memorandum, sometimes called a prospectus. This should be prepared by a lawyer who is knowledgeable in entertainment and securities laws.
Question: Can you provide me with any information related to the direct-to-video industry? If a have a script, how can I get it to video vs. network or cable?
Answer: Go to a video store and find the names of the distributors of videos like yours, or read Video Business Magazine, which lists many videos including direct-to-video programs. You may also want to attend the next Video Software Dealers Association (VSDA), a trade convention for people in the video business.
Question: The Estate we represent is in negotiation with a studio to obtain payment for domestic distribution rights to a film made some years ago. The studio earns about $25,000 - $30,000 per year from these rights. The term for which they seek re-license will be 47 years. We have not previously encountered this situation and wonder what appropriate compensation would be. The studio has already made a conservative offer so they view the income as viable. We thought anything between ten and fifty percent of their income can be defended but hope to make an offer that is based on some precedent. Can you please advise?
Answer: The film was made a number of years ago and is now earning $25,000 to $30,000 per year. I assume this money is coming from the home video market. Producers of films often receive a royalty of 20-25% of the wholesale price of home videos sold. Keep in mind that many studios license their films to their own home video subsidiaries. Those subsidiaries pay a royalty to the parent company, which in turn, shares that revenue with the producer. So I would first make sure that this is all they are generating from exploitation of these rights. Ascertain exactly which rights they are using and reserve all other rights. Then try to obtain at least 20% of the wholesale price as a royalty.
Question: I have been working with developers of interactive content for broadband distribution via e.g. web TV, @Home, etc. and wondered whether you have been adding language to standard talent and production agreements for television programming in contemplation of the types of "derivatives" to a show resulting from the convergence with other content/technology/etc. after the show has been produced. I'm curious as to whether and what the industry is focusing on in negotiating talent agreements (for example) in light of convergence technologies?
Answer: Yes, attorneys are becoming much more careful in limiting what rights their clients are granting. In many cases, we specifically restrict the use of films so that they cannot be disseminated over the Internet or turned into interactive programs unless those rights are also purchased.
Frequently Asked Questions: Directing
Answers from Mark Litwak, Attorney At Law
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: I am going to shoot a no-budget feature using my friends as actors. Two or three (out of ten or twelve) are members of SAG with no major credits. Do I need to register with SAG? What do I have to worry about when it comes to SAG? And how do I get around those things I have to worry about? Also, does "Contracts for the Film and Television Industry" contain contracts/deal memos that pertain to deferred/contingent methods of payment? If no, how do I incorporate those ideas into the existing contracts? Is there a difference between deferred and contingent? I will only be able to pay my cast and crew if I get some sort of distribution deal down the road.
Answer: If you are not a signatory to SAG, and you hire SAG actors, the actors may get in trouble with their union. Since you haven't signed with SAG, you have not violated or breached any contract with SAG. The major danger to you is having the actors run off in the middle of a shoot because a SAG representative shows up.
In regard to your question regarding deferred and contingent compensation, these are not the same. A deferment can be paid before or after the investors' recoup. Typically it is conditioned upon a film going into production and a certain amount of revenue being generated to pay the deferments. The deferred holders can have priority or they can all receive their deferments on an equal basis. Contingent compensation also referred to as "points" or "net profits," is far less likely to be received by a profit participant. That is because net profits are typically defined in such a way that all kinds of costs and expenses and distribution fees are deducted before any profits are declared.
Question: I'm aware the DGA and SAG have Low Budget Agreement deals that work to the benefit of the independent producer. Are you aware of any similar deals offered by the unions for cinematographers and sound-recorders? Thank you.
Answer: IATSE allows independent filmmakers the option of signing under a low-budget agreement. For more information you can call IATSE at (818) 905-8999. You should be aware that most low-budget producers would sign with SAG, although they may not with the DGA, WGA, and the Teamsters or IATSE.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: I am going to shoot a no-budget feature using my friends as actors. Two or three (out of ten or twelve) are members of SAG with no major credits. Do I need to register with SAG? What do I have to worry about when it comes to SAG? And how do I get around those things I have to worry about? Also, does "Contracts for the Film and Television Industry" contain contracts/deal memos that pertain to deferred/contingent methods of payment? If no, how do I incorporate those ideas into the existing contracts? Is there a difference between deferred and contingent? I will only be able to pay my cast and crew if I get some sort of distribution deal down the road.
Answer: If you are not a signatory to SAG, and you hire SAG actors, the actors may get in trouble with their union. Since you haven't signed with SAG, you have not violated or breached any contract with SAG. The major danger to you is having the actors run off in the middle of a shoot because a SAG representative shows up.
In regard to your question regarding deferred and contingent compensation, these are not the same. A deferment can be paid before or after the investors' recoup. Typically it is conditioned upon a film going into production and a certain amount of revenue being generated to pay the deferments. The deferred holders can have priority or they can all receive their deferments on an equal basis. Contingent compensation also referred to as "points" or "net profits," is far less likely to be received by a profit participant. That is because net profits are typically defined in such a way that all kinds of costs and expenses and distribution fees are deducted before any profits are declared.
Question: I'm aware the DGA and SAG have Low Budget Agreement deals that work to the benefit of the independent producer. Are you aware of any similar deals offered by the unions for cinematographers and sound-recorders? Thank you.
Answer: IATSE allows independent filmmakers the option of signing under a low-budget agreement. For more information you can call IATSE at (818) 905-8999. You should be aware that most low-budget producers would sign with SAG, although they may not with the DGA, WGA, and the Teamsters or IATSE.
Frequently Asked Questions: Copyright
Answers from Mark Litwak, Attorney At Law
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: I have an idea for a book that I want to write that I want to submit to a book publisher. However, I don't want the book publisher to steal the idea and have someone else write the book. How can I protect myself?
Answer: Ideas are not copyrightable under any circumstances. The only way to protect an idea would be through a confidentiality or non-disclosure agreement with the person you submit the idea to. This would be a contract, which would require the other party not to reveal your idea, and to compensate you if they exploit your idea.
Question: I have developed the first draft of a screenplay based on real life and historical materials more than 50 years old. Other people have also developed their interpretations, which have been published as books or plays. I have claimed copyright for my interpretation in the work. Would I need to worry about other authors claiming infringement of copyright in their work, which is based on the same primary sources?
Answer: One cannot copyright historical facts. You may borrow these facts from other sources, even copyrighted material, but you cannot borrow another writer's expression (i.e., the manner and approach of the other author). So don't borrow more than a few short quotes from another writer's work, and don't closely paraphrase another's work. Create your own work, tell it in your own words, and you will have a copyright to it. Of course, you will not be able to prevent other writers from borrowing facts from your work.
Question: I'm currently at the stage of getting a script viewed by Tarantino's agent and this is the first time I have had a script read in the industry. I was told first to send a synopsis then in return I would get a standard release form, which I should fill out and send, back with the script. What is the best way to cover myself against having the idea stolen?
Answer: Register the work with the Writers Guild or U.S. Copyright Office. Submit it to the agent with a cover letter saying you are submitting it with the expectation of being paid reasonable and customary compensation if the agent or one of his clients wants to exploit it. Also, mention that you are submitting it in confidence and it should not be disseminated to others without your prior permission.
Question: What process deals with copyright for screenplay based on a published novel? In this case, a Doubleday 1987 biography embellished by the author has been selected and reworked into an 80-page treatment. No sale in sight, but I realize that I am naive regarding copyright laws and offering a marketable piece.
Answer: If the original work is copyrighted, you cannot prepare a derivative work without the copyright owner's permission (unless the work has gone into the public domain). In other words, you cannot write and exploit a screenplay based on someone else's novel unless you have obtained from them the right to make a movie based on it (the movie rights). If you do have the right to adapt the book into a film, you will be able to secure the copyright to your screenplay and subsequent motion picture. You may choose to register your script with the Copyright Office to obtain added benefits.
Question: I am wanting to make feature length video composition consisting entirely of not more than two minute video clips of anything from movies to music videos for sale to dance clubs to play on their big screen TV's in the background. What does the law say about using movie clips (or any video production with copyright laws applying) to show to the public for profit?
Answer: Movie clips are copyrightable, and you cannot use them without the permission of the owners. The exceptions are if the copyright on the clip has expired, or if the use is considered a "fair use." While promo clips are often given away by studios for publicity purposes to promote upcoming releases, you would be well advised to get permission for whatever you want to use.
Question: When registering an idea for a motion picture with the WGA, how much of the plot needs to be revealed to assure the writer protection?
Answer: Ideas are not protectable under copyright law. It is only the embellishment upon the idea that is protected. Registering with the Writers Guild has no effect on copyright protection; it merely creates some evidence that on a certain date the writer wrote certain material. This is very beneficial if there is a plagiarism dispute because it's good evidence as to who came up with the material first. To get copyright protection, you need to embellish upon the idea, and the more you embellish upon the idea, the more protection you'll get. You should write out at least a treatment, if not a screenplay, and register it with the Copyright Office before you show it to third parties. See my article on "Protecting Your Stories" on my website for additional insight.
Question: I've written an Indiana Jones script, which I've been using as a writing sample here in my home city of Toronto. The script has received some terrific feedback from the local film community. This feedback has started me wondering what chance I might have submitting my Indy script as a writing sample to Amblin/Lucasfilm/Dreamworks. I understand there are legal considerations, but can you kindly elaborate on those considerations.
Answer: Creating a work that is derivative of the "Indiana Jones" character is likely to be copyright infringement unless it is considered a fair use or a parody. However, assuming you don't exploit your script by publishing it, or creating a movie based upon it, from a practical point of view, you are unlikely to find yourself the defendant in a copyright infringement lawsuit.
Question: A German company placed an ad in Variety asking for log lines. My agent sent them my log line, they asked for the script—but only if it was submitted to them on computer disk ("to make it easy to copy and so it will work with our translation software so we can read the script in German"). I've never heard of any software that can translate a script written in English into German. Does the fact that the (WGA-registered but not copyrighted) script is on computer disk make it any less 'protected' in a legal sense under German or American or International Law? Would you be suspicious/cautious under these circumstances?
Answer: I understand that there is software that can translate words from one language to another. I don't know how accurately this can be performed. Of course, if someone is really intent on ripping off your script, they can simply re-type it or scan it into digital form. You should register your script with the Copyright Office before you disclose it to anyone. Germany is a signatory to several international copyright treaties, which provide that German law will protect American authors just like American law protects German authors.
Question: I am planning to make a computer-animated movie in the next few months. I have all of the character designs, and the script is being completed. What steps do I need to take to protect myself from lawsuits for having characters that are similar to existing characters? To my knowledge, all of my characters are original, but I may be unaware of previous productions.
Answer: If the characters are original to you, not copied from another person's work, either consciously or inadvertently, you own the copyright to them even if you were not the first to create them. Moreover, the fact that one author invents Superman does not prevent another author from creating Spiderman. But if your character is very similar to an existing character, you may be vulnerable to a suit for copyright infringement. Consult a lawyer before you go into production.
Question: Can you tell me what the ruling is on copyrighting modification to a song previously written? I have changed several things in the song and would like to resubmit it under my own copyright. The song was never released in the US.
Answer: Copyright does not require an author to publish his material. So it doesn't matter whether a song has been released in the United States. If it's copyrighted, you cannot adapt it or change it without permission of the copyright owner. Assuming you have permission to create a derivative work, your copyright would be limited to the changes made to the work, would not give you any interest in the underlying work.
Question: I have a big problem; I pitched my screenplay on the net and got an answer from someone in Canada. He told me he was interested and that he works for an independent production company. Could he see the script? I replied and sent it along, asking to e-mail some production credits of his production company as well. The guy didn't do that. But the script was already on its way. It is registered with the WGA, sure, but yet I fear he's playing foul, for he didn't send a "Thanks-I-got-it" message or anything else. Could he cheat me? How? Am I paranoid? All I got from this man is an email address, an anonymous P.O. Box and his first name.
Answer: By registering your work with the Writers Guild, you have created some great evidence in the event of a plagiarism dispute. If the recipient of your screenplay attempts to rip you off without obtaining the rights to your screenplay, you will be able to get a declaration from the Writers Guild stating that on a certain date you sent in this screenplay. That's very persuasive evidence in the event of a plagiarism dispute. Alternatively, you could have registered the work with the Copyright Office, which accomplishes the same thing and also entitles you to additional benefits, such as reimbursement of attorney fees. Since it only costs $30 to register your work with the copyright office, and filling out a simple two-page form, I recommend that you do it.
Question: I am interested in constructing a database product for the entertainment industry. I have developed an automated process for constructing the database, however, it requires copyrighted material as input. If I purchase a copy of the copyrighted material, may I use it to construct the database? I should note that entries in the database will be only keywords or short phrase-like elements, nothing larger. Will this process infringe on the copyrights? Also, if I can legally construct this database, may I then copyright it? Finally, do you think I could patent the database construction process?
Answer: Facts, data, ideas, and concepts are not copyrightable. It is the organization or arrangement of this material that can entitle someone to a copyright. Words and short phrases are also not copyrightable. You are free to take from copyrighted materials elements that are not copyrightable. In other words, from a newspaper, you can withdraw facts. This would not infringe the copyright that the journalist would have in his or her article. In regard to processes, these are not copyrightable but can be patented.
Question: What are the copyright laws involved in public domain material? Also, what exactly is public domain material? I've found many definitions of it but what qualifies as public domain. If a film still or other image is 50 or more years old, is it public domain? If the image is for a product like a CD-ROM that will be sold, do we need to get the rights to any original material such as film stills or video clips that we want to use?
Answer: Public domain, for copyright purposes, is anything that is not copyrighted. Determining what is in the public domain and what is copyrighted can be difficult because the rules have changed. Since 1998, copyright lasts the lifetime of the author plus 70 years. For a more comprehensive discussion of copyright law in regard to photos and film clips, see my article on content licensing on my web page: http://www.marklitwak.com
Question: I recently completed a very loose adaptation of a non-fiction book and discovered the rights to that book were bought by a major studio last year. Could you please tell me how long they own these rights? Can I approach them with my screenplay, to see if they are interested, without getting into legal trouble? What do you suggest? Thanks for your help on this.
Answer: Authors of non-fiction books do not have any rights to the facts and historical information in their books. Consequently, if your screenplay is simply about a historical incident and you've drawn facts from this book but you haven't used the author's approach, organization or any verbatim text, you have probably not infringed his copyright. If you have used his expression in your screenplay, you will need to obtain a license from him or whoever owns the rights. If the rights were bought outright by the major studio, then they may own them in perpetuity. If they took an option, then the option would last one to three years, in general, and if they don't exercise it, the rights would remain with the author.
Question: On a spec script I am writing I have a main character that is a flight attendant on a major commercial airline. My question: Is it okay to use an actual name of a commercial airline e.g., Continental? Or should I make up a fictitious name? I realize that, if I use an actual name, the name would be changed if produced, but I was unsure if it was acceptable in a spec script to use an actual name or if the name should be fictitious from the spec script on. What is the industry standard way of handling it? I appreciate your advice.
Answer: Under the First Amendment, you can write about other people assuming you don't defame them or invade their privacy. Depending upon how you portray this airline, you may or may not infringe its rights. Simply mentioning its name by itself is not necessarily actionable. As far as the script goes, I would put in a fictional name for the airline. Persons reading the script want to evaluate the story content. The names of the characters or companies are irrelevant.
Question: Obviously, no one wants to put any dates on a script so it remains current. If I choose to copyright a script, must the copyright symbol and date of copyright appear on the script or can a script be copyrighted but no date be printed? Obviously I would like protection afforded by a copyright as well as Guild registration, but I want no dates on my screenplays. Your advice would be greatly appreciated.
Answer: As of 1978, copyright begins from the moment of creation. You are no longer required to put a copyright notice on your work or the date of the copyright. You are also not required to register your copyright. However, it is a good idea to put a copyright notice on your work because it puts everyone on notice that this is copyrighted material and prevents someone from claiming that they innocently infringed your work. A willful infringer is liable for greater damages than an innocent infringer. Whenever you make a revision or a change to your script, you could re-register it and your new copyright would cover the new material. In the event of a plagiarism dispute, it may be in your interest to have a copyright date as early as possible. That's because when two people claim copyright to the same work, the person who can prove he created the work first will be presumed to be the copyright author. Thus, if you created the work in 1965 but put on your script that you had created it in 1995, in the event of litigation, you might find that incorrect information used against you.
Question: I recently asked a collector's bookstore in California to initiate a search for an autobiography written about an outstanding athlete. I believe the book to have been published in 1946. The bookstore checked the title with their primary suppliers and the book was not in their catalog. What if the original publisher no longer exists and the writer has died—how do I obtain the rights to the book? Any advice would be highly welcome.
Answer: Copyright to a book does not necessarily expire just because it is out of print. Copyright is inheritable and the writer's heirs may well have inherited his or her copyright. Copyright could also have been assigned to another party. You should do a copyright search through the Library of Congress or through one of the various search agencies such as Thompson & Thompson or Dennis Angel.
Question: A couple of rights questions: You said earlier "Authors of non-fiction books do not have any rights to the facts and historical information in their books." My understanding was that if the facts were publicly known and published you are correct, but that if the facts are taken from a privileged source the rights must be obtained from that source. For example, copyrighted scandal sheet reports that the private diaries of Jane Smith reveal Doe had an affair with her and that he secretly actually walked on water when he was once high on LSD and 1000 other unknown facts. I thought you would have to obtain rights from Jane Doe or the copyright holder of her book (since the facts appear no where else) to use these facts. No?
One more: You pitch a story to a studio: Two headed monster hijacks a plane and crashes it into the center of Rome setting a fire that destroys the Vatican. The studio rejects your pitch (or screenplay) but produces a movie in which these same events take place. No characters, story elements or other facts are similar to your story or script. Can they be sued for infringement?
Answer: Historical facts and information are not copyrightable under any circumstances. Of course, the way a particular author tells history can be protected as an expression of that author. Moreover, publishing privileged or private information could expose you to liability for breach of a confidentiality agreement or for unlawfully exposing a trade secret. But, facts are not copyrightable.
In regard to pitching to a studio and having your story ripped off, while you might not have a copyright infringement case, because all that was taken was an idea, you could well have a case for breach of implied or oral contract. There are a number of cases that have found liability in such a situation. The key question is whether or not there was an understanding by the parties that you would receive compensation for your contribution or whether your pitch was a gift.
Question: (1) I wrote a screenplay for a "Star Wars" sequel. Do I have the right to market it? Shall I change the names of the original characters? (2) Is Library of Congress [copyright] registration enough or I also need to register with the WGA? (3) Will Lucasfilm read it—I mean do they legally have possibility to read and consider it? (4) How can I order your last book?
Answer: (1) You cannot make a derivative work based on "Star Wars" without the copyright owner of "Star Wars" giving you permission. A sequel is a derivative work. Consequently, your work, if unauthorized, is copyright infringement. Changing the names of the characters does not necessarily protect you, as the copyright extends to more than just the characters. (2) Since you do not have the right to create a derivative work, registering with the Library of Congress or with the Writers Guild will not protect you. (3) Lucasfilm has no obligation to read your material or consider it. (4) You can order my book through most bookstores, from my website (www.marklitwak.com) or you can call Samuel French Bookstore at (323) 876-0570 to order it.
Question: Once one has a script registered with the WGA and the U.S. Copyright Office and later makes a title change, is it then necessary to resubmit the revised script? Although I understand you can't get copyright on a title, only under rare circumstances—like the remake of "The Jackal".
Answer: It is not necessary to re-register a script if the only change is the title. The copyright office will accept an application for Supplementary Registration, which will accomplish this purpose. The form for supplementary registration is Form CA. The information in the Supplementary Registration does not replace that contained in the original registration, but rather augments it. As you noted, Copyright Law does not protect titles. Titles can sometimes be protected under the law of unfair competition and trademark infringement. Moreover, there is limited protection by registering a title at the Motion Picture Association of America Title Registration Bureau. The MPAA registration bureau can be reached at: (818) 995-6600.
Question: Suppose, if you will, that a protagonist in a book was subjected to a specific illness and from that weakness he became needful or dependent upon a drug that both strengthened him but made him evil. I am not the author of that book but have considered penning a screenplay based upon it. My attempts to contact the author have been unsuccessful. If I was to markedly change the plot and characters and their likeness but retained the two fundamental, combined elements, that is, the weak protagonist and his drug, how do you think the courts would rule if an infringement suit was introduced? As well, what are the legal considerations and qualifications for "inspired by"?
Answer: Copyright protects the expression of the author, but does not protect underlying concepts, ideas, facts, or historical incidents. If you are simply borrowing facts from another copyrighted work, then you are probably not infringing the source's copyright. In other words, what copyright law protects is the embellishment upon the basic concept or idea. It is how a particular author tells the story. Ten authors could write biographies about George Washington, but this would not prevent an eleventh author from using the facts in the previous volumes as long as he expresses the story in his own words. It is sometimes difficult, however, to determine whether one has borrowed fact or concept or more. Only after your work is complete, can an experienced entertainment lawyer give you his/her opinion. Even then you might fall in a gray area.
Question: A friend and I want to do an adaptation of a book we know to be in the public domain (let's say it was Moby Dick). However, a relative of the author says that they have copyrighted the author's name. We take this to mean we could say "Moby Dick, based on the novel by Herman Melville," but we could not say "Herman Melville's Moby Dick." Does this sound like the correct read to you? The relative was imprecise about the implications of the copyrighting. We do not want to burden the project with additional participants unless we need to, so we want to see if we can proceed without the relative's participation.
Answer: Names and titles are not copyrightable; only expressions of an author are. Names can sometimes be protected under trademark law, however, even if the book is in the public domain. I do not see a problem in the realm of copyright law attributing it to the real author. Public domain material is available to anyone in the public to use. However, if you significantly change the story, it may be a form of misrepresentation and/or unfair competition to represent that your material is from the original author when it is not.
Question: A relative of an author of a book in the public domain said that they copyrighted the author's name. Now we hear that the relative actually trademarked the name, not copyrighted it. Could you tell me the implications of this? Can I write a screenplay and use this trademarked name, say like "Herman Melville's Moby Dick"?
Answer: Trademarks, unlike copyrights, can last indefinitely (e.g. Coca Cola) provided the mark is used to designate and distinguish one product from another. If the mark is abandoned, the trademark is lost. My question is this, is the estate actively marketing a series of books under this author's name? Also, I would question whether this is a valid mark because it appears to be a descriptive term. If the estate is claiming the name as a mark, conduct a trademark search or ask the estate to show you a copy of their trademark certificate to see if the Trademark Office thought this was a valid mark. Of course, that doesn't mean it can't be contested. And, I agree with you that you could say "Moby Dick, based on the novel by Herman Melville."
Question: Thanks for your time in answering these questions. I've learned a lot here. But haven't seen an answer to this: I am interested in producing a biopic of someone who lived in the 1800's. There are several biographies in print about the subject. My question is - do I have to acquire rights to each of them in order to adapt the story to a screenplay. If I choose the bio I like best, obtain the rights and use that slant, how can I protect myself from the other authors claiming I used their material?
Answer: It is not important when the subject lived, but whether the biographies about him are still protected under copyright law. An author in 1996 could write a biography about a person from the Eighteenth Century. Such a biography would be protected under the copyright laws. Current American copyright law provides for a copyright for the lifetime of an author plus 50 years. The law was changed effective 1978. Generally, a work more than 75 years old should be in the public domain, and some newer works may also be in the public domain. Of course, if all you borrow from the works are historical facts, ideas and other uncopyrightable matter, you don't need to obtain any rights. You will only need the author's permission if you use his expression (his approach to the material), the way he tells the story.
Question: My partners and I recently came up with an idea for a TV series that we would like to develop. Part of the angle of the show (and potential problem) is that we would like each episode to be written by non-union, non-professional writers. We would basically be soliciting scripts from the average American (a new writer for every episode). Our writing staff would then re-work the scripts if necessary to prepare them for shooting. Before we start pitching this idea to anyone, we need to know if it's legal to use non-union writers for TV.
Answer: You are under no obligation to become a signatory to the Writers Guild, or any other union. Keep in mind, however, that most experienced and talented screenwriters are members of the Writers Guild. The work product by non-professional writers may not be very good.
Question: I was about 1/3 of the way through my current screenplay when I decided I needed some additional research to add that extra touch of realism to my characters. To my surprise, one of my earlier scenes is eerily similar to a scene in the book (non-fiction) I purchased for the research. The setting is similar, the events surrounding the characters are similar and one of the characters is very similar, though has a different name. My question is, do I need to change my scene? If so, to what extent?
Answer: Assuming you came up with your material independently from the non-fiction book that you purchased, there would not be any legal grounds against you. There are certain requirements for copyright such as originality, and that the work is in a tangible medium of expression, but there is no requirement for you to be the first person to create it. In other words, if two people independently conceive the same story, each would own a copyright to their own work. The person who created the story first would be presumed to be the copyright author, but if it can be shown that the person who came up with the subsequent work did not rely on, or have access to the original, then the second work would not infringe the first. However, if the two works are very similar or identical, it would be suspicious, to say the least.
Since you have read a non-fiction book, you should be aware that the copyright owner of a non-fiction work has much less control over the material than someone who writes a purely fictional work. All historical incidents, for example, are in the public domain and are available to you just as they were available to the book's author. If you think there is a potential infringement claim against you, it would be wise to have an experienced entertainment lawyer review your script and the book before you go into production.
Question: I am currently releasing a pilot for a new television show to all of the major sports networks in North America. One has demanded a signed "idea submission form" which states that the network may have in the past or future received similar or exactly the same idea as mine, and that they may use that similar or exact idea with no compensation to me. The form however warrants that I am the sole "owner" of the idea. Is this something to be concerned about and if so, how can I protect my idea from being stolen from this or any network?
Answer: This is a submission release often used when studios, and television networks accept material from people "outside the industry." Generally, it is not required if your material is submitted through an agent, or an entertainment attorney, or if you have a personal relationship with the person to whom you are submitting it. Essentially, the network is concerned that you might be setting them up for a potential lawsuit for plagiarism. They are concerned that if you submit to them a project that is similar to one they are already developing, you may then have a claim against them. By signing this form, they make it more difficult for you to go after them because you are acknowledging that there is no implied agreement between the parties for you to be compensated. The form also attempts to limit your damages. This form will make it difficult for you to win a case in the event that the network negligently infringes your work. However, it will not be enforceable against you if they intentionally infringe your work. That is because such disclaimers, as a matter of public policy, are not enforceable to protect fraudulent or intentionally wrongful behavior.
Question: I have written jingles to portions of published songs. How do I find out if I can submit these to advertisers? Where and how would I get information for public domain?
Answer: If you are the author of jingles, then presumably you own the copyright to them. You can submit these to advertisers or to anyone else you like. I don't understand why you need information about what is in the public domain.
Question: I found master recording tapes in my garage recently, untouched since 1977. The tapes are a live music performance at a state college, by a band that I belonged to. The bandleader no longer lives in the USA, the music was all his compositions, he taught all of us in the band how to play the instruments (African) and he put the band together. I do not remember how I ended up with the tapes but I have had them since the performance. I doubt he or any of the band members remember the performance was recorded. The band did not pay for the recording—college recording students did it. The band was very popular in the northwest for 4-5 years, then broke-up. The band was never under any contract and I do not believe any of the songs were copyrighted. I can reach the bandleader if I want to, he is a fairly well known musician in the USA and internationally. I had the tapes transferred to master CD's; the quality is excellent and worthy of a commercial release. My questions: Who owns the tapes? Can I (should I) copyright the performance? What should be considered with regards to a possible commercial release?
Answer: When the music was created, a copyright came into existence. You are confused between the difference between registering a copyright, and creating a copyright. Registration is optional although it is advisable because it gives you extra protection. So your music was copyrighted when it was created. Presumably the band owns the copyright. It does not matter where the band members now live. It does not matter that no one paid for the recording, nor that college students did it. It does not matter that the band was not under contract to a third party.
Copyright law in the United States was changed in 1976, effective 1978. Assuming the prior law applies, the copyright would last for 28 years, and could then be renewed for an additional 28-year term (plus 19 more years if the work was in the second term when the law changed). If the copyright came into existence in 1977, it would last at least until 2005, at which time it would expire if not renewed. For works created since 1978, copyright lasts for the lifetime of the author, plus 70 years.
Question: A rather interesting tactic has come to my attention through another screenwriting message board. The poster suggested writing your screenplay as a novel first, as a means of securing more comprehensive rights to your story. Even if the novel isn't yet published, you would own the rights to other adaptations of your story, even if you sold the "film rights" in the form of your screenplay. Does this sound like something worth the tremendous effort involved?
Answer: No. Whether you create a novel or a screenplay, assuming you are not in the employ of someone else, you would own the copyright to the work and any derivative works. If you wrote a screenplay, you would control any derivative works, such as a book. Conversely, if you wrote a book first, you would control any derivative works, such as a screenplay.
Question: I have submitted a written idea for a show to a producer who is now shopping it to a network. We have no up-front agreement on compensation for the pitch because I had assumed that copyright law would be protective. Is that correct?
Answer: Copyright law does not protect ideas. Ideas are inherently not copyrightable, nor can themes, premises, concepts or words be copyrighted. In order to be protected, you need to create a work of authorship. This is the embellishment upon the idea. The more you embellish, the more you can protect your work under copyright law. While you cannot be protected under copyright law for theft of ideas, you can be protected under of contract law. For an in depth discussion of how to protect your interests by contract, see the article I have written on this topic.
Question: I am hoping you can help with an issue that seems to be a little different from those listed above. We are interested in using three two-minute clips from different films to gauge subject reaction in a research project. This is in an academic setting and does not have any profit motive whatsoever. Since the clips are being used for educational/research purposes, do we need to contact someone about using the clips, or would we be exempt from this. Journal articles, for example, can be copied once if they are being used for educational purposes. If we do need to contact someone, who do we contact, writers, film company, both, neither? Thanks for your help on this.
Answer: This may well be a fair use under copyright law. Certainly the fact that it is being done in an educational setting would weigh in its favor. The fact that your use is not competing against the owners of the clips would also weigh in your favor. The problem with the fair use doctrine is that it is a big gray area. Photocopying a Newsweek article for school use on one occasion would clearly be a fair use. But if a schoolteacher photocopied an entire textbook and handed it out to her students, it would not be a fair use. Unfortunately, many situations fall in between these extremes, and it can be hard to predict how the court will perceive the facts and weigh the factors in determining fair use. The best that you can hope for is to see if there are any precedents with facts similar to yours. Of course, if you are in a different jurisdiction, that precedent may not apply.
Question: In 1977, my husband recorded an album of 10 songs. The album was self-titled and only 500 were pressed. To his knowledge all of the songs were registered with the U.S. Copyright Office, however, he is unable to find any of the paperwork. It has recently come to our attention that the album is now a collectors' item worth several hundred dollars for an original, "original" being the key word. We have also found out via friends and an online catalog that there is a "reissue" being sold. Needless to say, he has never been contacted by anyone or given permission to anyone to reissue this album. It seems to us that there has been an infringement of the Copyright Law, and that he should be receiving some sort of compensation for the sales of this "reissued" album. I e-mailed one of the catalogs in question and asked for a list of the song titles to be sure it was his album they had listed in the catalog, and received a reply listing all of his song titles along with the following: 1976-1977 Reissue. Guinn Records K.C. MO /////180 Gram Vinyl. All of this information confirmed that it is his material being sold. Is there anything we can do or is there any way for him to collect what we feel is due him?
Answer: You can do a copyright search to determine whether, in fact, you did register the copyright. Then you can order a copy of your registration from the copyright office to replace the copy you may have lost. Assuming you registered your copyright in a timely manner, you may be entitled to statutory damages, injunctive relief and reimbursement of attorney fees from anyone who has infringed your copyright.
Question: Thank you for being such a great resource. I am in the process of creating an animated short to be entered into many film festivals and also pitched as a TV series. How would I go about protecting the name and look of my main character before my short is released? Are characters trademarkable or will a copyright of an image of the character protect well enough?
Answer: After you complete your script, and again after you complete your film, you should register each with the Copyright Office, using Form PA. This will register your copyright to your work. Copyright Law can, to some extent, protect characters that are sufficiently defined. However, this does not prevent others from creating characters with similar personality traits. Just because you wrote a detective story featuring Detective Sam Spade, it does not mean that you can thereafter prevent other people from writing stories that feature a hard-boiled private eye. As far as trade marking characters, if the character is used as a mark to identify the source of a product, then trademark and unfair competition law may apply. A trademark or service mark is a logo or name used to distinguish one source of product from another. Trademarks such as McDonalds, Apple, and Xerox distinguish the source of a product from those of other manufacturers. A character, which is represented visually, such as a cartoon character, will receive greater protection under Copyright law because of its visual representation.
Question: I've submitted a screenplay to a major production company, but the "release" form they required me to sign had a clause stating that, essentially, I could not submit the script to anyone else unless I gave them 30 days written notice of my intention to do so. Is this a legal clause? (In Australia, this clause would be invalid - it's in restraint of trade.)
Answer: I am not aware of any provision of California law that specifically prevents the use of a clause restricting you from submitting the script to others. I think this clause is onerous, and you should not agree to it. It is an interesting idea that such a clause might be a restraint of trade. It is against the public policy of California to enforce employment contracts that have restrictive covenants. Perhaps by analogy, the clause you describe would be unenforceable.
Question: I am writing a screenwriting guide and would like to use several award-winning films as samples. If I do not quote from the films, but rather only discuss their structure, is it "Fair Use?"
Answer: In my opinion, if you do not extensively quote from the films, but merely critique the stories, you would be protected under the Fair Use Doctrine.
Question: After copyrighting a script, I submitted it to a famous person's manager, who opened, read, and returned the material. A year later a movie was released with the exact plot line, characters, and verbatim dialogue. The only thing changed was the female lead was switched for the male star that directed the film. With no money to litigate, what can a person do?
Answer: If your case is as strong as you claim, you may be able to obtain an attorney to take the case on a contingent fee basis. The key here is the verbatim dialog. If they closely followed your dialog at length, then it is unlikely they created it on their own. In this case, I think you may have a strong suit for copyright infringement, and perhaps breach of contract.
Question: How can writers without residency in the U.S. protect their scripts when trying to sell them in the US?
Answer: A script can be protected by contract or under copyright law. To protect by contract, you need to have the party you are submitting the work to sign an agreement providing that they will compensate the author if they want to use the work. Moreover, the agreement should include a confidentiality clause, which would provide that the recipient not disclose the work to other parties.
To protect the work under U.S. copyright law, the author can register the work with the U.S. Copyright Office. This can be done even if the author doesn't reside in the United States, and is not a U.S. national. By registering one's work with the Copyright Office you establish a public record of your copyright claim, and make yourself eligible for statutory damages and other benefits in the event of an infringement.
Note that there are some special qualifications for a foreign author to register a work with the U.S. Copyright Office. The qualifications are reprinted below. Circular 38a,"International Copyright Relations of the United States" has additional details on treaty countries.
From the Copyright Website:
COPYRIGHT AND NATIONAL ORIGIN OF THE WORK
Copyright protection is available for all unpublished works, regardless of the nationality or domicile of the author
Published works are eligible for copyright protection in the United States if any one of the following conditions is met:
* On the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party (i.e., a country or intergovernmental organization other than the United States that is a party to an international agreement), or is a stateless person wherever that person may be domiciled; or
* The work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party. For purposes of this condition, a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be; or
* The work is a sound recording that was first fixed in a treaty party; or
* The work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or
* The work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or
* The work is a foreign work that was in the public domain in the United States prior to 1996 and its copyright was restored under the Uruguay Round Agreements Act (URAA). Request Circular 38b, "Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA-GATT)," for further information.
* The work comes within the scope of a Presidential proclamation.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: I have an idea for a book that I want to write that I want to submit to a book publisher. However, I don't want the book publisher to steal the idea and have someone else write the book. How can I protect myself?
Answer: Ideas are not copyrightable under any circumstances. The only way to protect an idea would be through a confidentiality or non-disclosure agreement with the person you submit the idea to. This would be a contract, which would require the other party not to reveal your idea, and to compensate you if they exploit your idea.
Question: I have developed the first draft of a screenplay based on real life and historical materials more than 50 years old. Other people have also developed their interpretations, which have been published as books or plays. I have claimed copyright for my interpretation in the work. Would I need to worry about other authors claiming infringement of copyright in their work, which is based on the same primary sources?
Answer: One cannot copyright historical facts. You may borrow these facts from other sources, even copyrighted material, but you cannot borrow another writer's expression (i.e., the manner and approach of the other author). So don't borrow more than a few short quotes from another writer's work, and don't closely paraphrase another's work. Create your own work, tell it in your own words, and you will have a copyright to it. Of course, you will not be able to prevent other writers from borrowing facts from your work.
Question: I'm currently at the stage of getting a script viewed by Tarantino's agent and this is the first time I have had a script read in the industry. I was told first to send a synopsis then in return I would get a standard release form, which I should fill out and send, back with the script. What is the best way to cover myself against having the idea stolen?
Answer: Register the work with the Writers Guild or U.S. Copyright Office. Submit it to the agent with a cover letter saying you are submitting it with the expectation of being paid reasonable and customary compensation if the agent or one of his clients wants to exploit it. Also, mention that you are submitting it in confidence and it should not be disseminated to others without your prior permission.
Question: What process deals with copyright for screenplay based on a published novel? In this case, a Doubleday 1987 biography embellished by the author has been selected and reworked into an 80-page treatment. No sale in sight, but I realize that I am naive regarding copyright laws and offering a marketable piece.
Answer: If the original work is copyrighted, you cannot prepare a derivative work without the copyright owner's permission (unless the work has gone into the public domain). In other words, you cannot write and exploit a screenplay based on someone else's novel unless you have obtained from them the right to make a movie based on it (the movie rights). If you do have the right to adapt the book into a film, you will be able to secure the copyright to your screenplay and subsequent motion picture. You may choose to register your script with the Copyright Office to obtain added benefits.
Question: I am wanting to make feature length video composition consisting entirely of not more than two minute video clips of anything from movies to music videos for sale to dance clubs to play on their big screen TV's in the background. What does the law say about using movie clips (or any video production with copyright laws applying) to show to the public for profit?
Answer: Movie clips are copyrightable, and you cannot use them without the permission of the owners. The exceptions are if the copyright on the clip has expired, or if the use is considered a "fair use." While promo clips are often given away by studios for publicity purposes to promote upcoming releases, you would be well advised to get permission for whatever you want to use.
Question: When registering an idea for a motion picture with the WGA, how much of the plot needs to be revealed to assure the writer protection?
Answer: Ideas are not protectable under copyright law. It is only the embellishment upon the idea that is protected. Registering with the Writers Guild has no effect on copyright protection; it merely creates some evidence that on a certain date the writer wrote certain material. This is very beneficial if there is a plagiarism dispute because it's good evidence as to who came up with the material first. To get copyright protection, you need to embellish upon the idea, and the more you embellish upon the idea, the more protection you'll get. You should write out at least a treatment, if not a screenplay, and register it with the Copyright Office before you show it to third parties. See my article on "Protecting Your Stories" on my website for additional insight.
Question: I've written an Indiana Jones script, which I've been using as a writing sample here in my home city of Toronto. The script has received some terrific feedback from the local film community. This feedback has started me wondering what chance I might have submitting my Indy script as a writing sample to Amblin/Lucasfilm/Dreamworks. I understand there are legal considerations, but can you kindly elaborate on those considerations.
Answer: Creating a work that is derivative of the "Indiana Jones" character is likely to be copyright infringement unless it is considered a fair use or a parody. However, assuming you don't exploit your script by publishing it, or creating a movie based upon it, from a practical point of view, you are unlikely to find yourself the defendant in a copyright infringement lawsuit.
Question: A German company placed an ad in Variety asking for log lines. My agent sent them my log line, they asked for the script—but only if it was submitted to them on computer disk ("to make it easy to copy and so it will work with our translation software so we can read the script in German"). I've never heard of any software that can translate a script written in English into German. Does the fact that the (WGA-registered but not copyrighted) script is on computer disk make it any less 'protected' in a legal sense under German or American or International Law? Would you be suspicious/cautious under these circumstances?
Answer: I understand that there is software that can translate words from one language to another. I don't know how accurately this can be performed. Of course, if someone is really intent on ripping off your script, they can simply re-type it or scan it into digital form. You should register your script with the Copyright Office before you disclose it to anyone. Germany is a signatory to several international copyright treaties, which provide that German law will protect American authors just like American law protects German authors.
Question: I am planning to make a computer-animated movie in the next few months. I have all of the character designs, and the script is being completed. What steps do I need to take to protect myself from lawsuits for having characters that are similar to existing characters? To my knowledge, all of my characters are original, but I may be unaware of previous productions.
Answer: If the characters are original to you, not copied from another person's work, either consciously or inadvertently, you own the copyright to them even if you were not the first to create them. Moreover, the fact that one author invents Superman does not prevent another author from creating Spiderman. But if your character is very similar to an existing character, you may be vulnerable to a suit for copyright infringement. Consult a lawyer before you go into production.
Question: Can you tell me what the ruling is on copyrighting modification to a song previously written? I have changed several things in the song and would like to resubmit it under my own copyright. The song was never released in the US.
Answer: Copyright does not require an author to publish his material. So it doesn't matter whether a song has been released in the United States. If it's copyrighted, you cannot adapt it or change it without permission of the copyright owner. Assuming you have permission to create a derivative work, your copyright would be limited to the changes made to the work, would not give you any interest in the underlying work.
Question: I have a big problem; I pitched my screenplay on the net and got an answer from someone in Canada. He told me he was interested and that he works for an independent production company. Could he see the script? I replied and sent it along, asking to e-mail some production credits of his production company as well. The guy didn't do that. But the script was already on its way. It is registered with the WGA, sure, but yet I fear he's playing foul, for he didn't send a "Thanks-I-got-it" message or anything else. Could he cheat me? How? Am I paranoid? All I got from this man is an email address, an anonymous P.O. Box and his first name.
Answer: By registering your work with the Writers Guild, you have created some great evidence in the event of a plagiarism dispute. If the recipient of your screenplay attempts to rip you off without obtaining the rights to your screenplay, you will be able to get a declaration from the Writers Guild stating that on a certain date you sent in this screenplay. That's very persuasive evidence in the event of a plagiarism dispute. Alternatively, you could have registered the work with the Copyright Office, which accomplishes the same thing and also entitles you to additional benefits, such as reimbursement of attorney fees. Since it only costs $30 to register your work with the copyright office, and filling out a simple two-page form, I recommend that you do it.
Question: I am interested in constructing a database product for the entertainment industry. I have developed an automated process for constructing the database, however, it requires copyrighted material as input. If I purchase a copy of the copyrighted material, may I use it to construct the database? I should note that entries in the database will be only keywords or short phrase-like elements, nothing larger. Will this process infringe on the copyrights? Also, if I can legally construct this database, may I then copyright it? Finally, do you think I could patent the database construction process?
Answer: Facts, data, ideas, and concepts are not copyrightable. It is the organization or arrangement of this material that can entitle someone to a copyright. Words and short phrases are also not copyrightable. You are free to take from copyrighted materials elements that are not copyrightable. In other words, from a newspaper, you can withdraw facts. This would not infringe the copyright that the journalist would have in his or her article. In regard to processes, these are not copyrightable but can be patented.
Question: What are the copyright laws involved in public domain material? Also, what exactly is public domain material? I've found many definitions of it but what qualifies as public domain. If a film still or other image is 50 or more years old, is it public domain? If the image is for a product like a CD-ROM that will be sold, do we need to get the rights to any original material such as film stills or video clips that we want to use?
Answer: Public domain, for copyright purposes, is anything that is not copyrighted. Determining what is in the public domain and what is copyrighted can be difficult because the rules have changed. Since 1998, copyright lasts the lifetime of the author plus 70 years. For a more comprehensive discussion of copyright law in regard to photos and film clips, see my article on content licensing on my web page: http://www.marklitwak.com
Question: I recently completed a very loose adaptation of a non-fiction book and discovered the rights to that book were bought by a major studio last year. Could you please tell me how long they own these rights? Can I approach them with my screenplay, to see if they are interested, without getting into legal trouble? What do you suggest? Thanks for your help on this.
Answer: Authors of non-fiction books do not have any rights to the facts and historical information in their books. Consequently, if your screenplay is simply about a historical incident and you've drawn facts from this book but you haven't used the author's approach, organization or any verbatim text, you have probably not infringed his copyright. If you have used his expression in your screenplay, you will need to obtain a license from him or whoever owns the rights. If the rights were bought outright by the major studio, then they may own them in perpetuity. If they took an option, then the option would last one to three years, in general, and if they don't exercise it, the rights would remain with the author.
Question: On a spec script I am writing I have a main character that is a flight attendant on a major commercial airline. My question: Is it okay to use an actual name of a commercial airline e.g., Continental? Or should I make up a fictitious name? I realize that, if I use an actual name, the name would be changed if produced, but I was unsure if it was acceptable in a spec script to use an actual name or if the name should be fictitious from the spec script on. What is the industry standard way of handling it? I appreciate your advice.
Answer: Under the First Amendment, you can write about other people assuming you don't defame them or invade their privacy. Depending upon how you portray this airline, you may or may not infringe its rights. Simply mentioning its name by itself is not necessarily actionable. As far as the script goes, I would put in a fictional name for the airline. Persons reading the script want to evaluate the story content. The names of the characters or companies are irrelevant.
Question: Obviously, no one wants to put any dates on a script so it remains current. If I choose to copyright a script, must the copyright symbol and date of copyright appear on the script or can a script be copyrighted but no date be printed? Obviously I would like protection afforded by a copyright as well as Guild registration, but I want no dates on my screenplays. Your advice would be greatly appreciated.
Answer: As of 1978, copyright begins from the moment of creation. You are no longer required to put a copyright notice on your work or the date of the copyright. You are also not required to register your copyright. However, it is a good idea to put a copyright notice on your work because it puts everyone on notice that this is copyrighted material and prevents someone from claiming that they innocently infringed your work. A willful infringer is liable for greater damages than an innocent infringer. Whenever you make a revision or a change to your script, you could re-register it and your new copyright would cover the new material. In the event of a plagiarism dispute, it may be in your interest to have a copyright date as early as possible. That's because when two people claim copyright to the same work, the person who can prove he created the work first will be presumed to be the copyright author. Thus, if you created the work in 1965 but put on your script that you had created it in 1995, in the event of litigation, you might find that incorrect information used against you.
Question: I recently asked a collector's bookstore in California to initiate a search for an autobiography written about an outstanding athlete. I believe the book to have been published in 1946. The bookstore checked the title with their primary suppliers and the book was not in their catalog. What if the original publisher no longer exists and the writer has died—how do I obtain the rights to the book? Any advice would be highly welcome.
Answer: Copyright to a book does not necessarily expire just because it is out of print. Copyright is inheritable and the writer's heirs may well have inherited his or her copyright. Copyright could also have been assigned to another party. You should do a copyright search through the Library of Congress or through one of the various search agencies such as Thompson & Thompson or Dennis Angel.
Question: A couple of rights questions: You said earlier "Authors of non-fiction books do not have any rights to the facts and historical information in their books." My understanding was that if the facts were publicly known and published you are correct, but that if the facts are taken from a privileged source the rights must be obtained from that source. For example, copyrighted scandal sheet reports that the private diaries of Jane Smith reveal Doe had an affair with her and that he secretly actually walked on water when he was once high on LSD and 1000 other unknown facts. I thought you would have to obtain rights from Jane Doe or the copyright holder of her book (since the facts appear no where else) to use these facts. No?
One more: You pitch a story to a studio: Two headed monster hijacks a plane and crashes it into the center of Rome setting a fire that destroys the Vatican. The studio rejects your pitch (or screenplay) but produces a movie in which these same events take place. No characters, story elements or other facts are similar to your story or script. Can they be sued for infringement?
Answer: Historical facts and information are not copyrightable under any circumstances. Of course, the way a particular author tells history can be protected as an expression of that author. Moreover, publishing privileged or private information could expose you to liability for breach of a confidentiality agreement or for unlawfully exposing a trade secret. But, facts are not copyrightable.
In regard to pitching to a studio and having your story ripped off, while you might not have a copyright infringement case, because all that was taken was an idea, you could well have a case for breach of implied or oral contract. There are a number of cases that have found liability in such a situation. The key question is whether or not there was an understanding by the parties that you would receive compensation for your contribution or whether your pitch was a gift.
Question: (1) I wrote a screenplay for a "Star Wars" sequel. Do I have the right to market it? Shall I change the names of the original characters? (2) Is Library of Congress [copyright] registration enough or I also need to register with the WGA? (3) Will Lucasfilm read it—I mean do they legally have possibility to read and consider it? (4) How can I order your last book?
Answer: (1) You cannot make a derivative work based on "Star Wars" without the copyright owner of "Star Wars" giving you permission. A sequel is a derivative work. Consequently, your work, if unauthorized, is copyright infringement. Changing the names of the characters does not necessarily protect you, as the copyright extends to more than just the characters. (2) Since you do not have the right to create a derivative work, registering with the Library of Congress or with the Writers Guild will not protect you. (3) Lucasfilm has no obligation to read your material or consider it. (4) You can order my book through most bookstores, from my website (www.marklitwak.com) or you can call Samuel French Bookstore at (323) 876-0570 to order it.
Question: Once one has a script registered with the WGA and the U.S. Copyright Office and later makes a title change, is it then necessary to resubmit the revised script? Although I understand you can't get copyright on a title, only under rare circumstances—like the remake of "The Jackal".
Answer: It is not necessary to re-register a script if the only change is the title. The copyright office will accept an application for Supplementary Registration, which will accomplish this purpose. The form for supplementary registration is Form CA. The information in the Supplementary Registration does not replace that contained in the original registration, but rather augments it. As you noted, Copyright Law does not protect titles. Titles can sometimes be protected under the law of unfair competition and trademark infringement. Moreover, there is limited protection by registering a title at the Motion Picture Association of America Title Registration Bureau. The MPAA registration bureau can be reached at: (818) 995-6600.
Question: Suppose, if you will, that a protagonist in a book was subjected to a specific illness and from that weakness he became needful or dependent upon a drug that both strengthened him but made him evil. I am not the author of that book but have considered penning a screenplay based upon it. My attempts to contact the author have been unsuccessful. If I was to markedly change the plot and characters and their likeness but retained the two fundamental, combined elements, that is, the weak protagonist and his drug, how do you think the courts would rule if an infringement suit was introduced? As well, what are the legal considerations and qualifications for "inspired by"?
Answer: Copyright protects the expression of the author, but does not protect underlying concepts, ideas, facts, or historical incidents. If you are simply borrowing facts from another copyrighted work, then you are probably not infringing the source's copyright. In other words, what copyright law protects is the embellishment upon the basic concept or idea. It is how a particular author tells the story. Ten authors could write biographies about George Washington, but this would not prevent an eleventh author from using the facts in the previous volumes as long as he expresses the story in his own words. It is sometimes difficult, however, to determine whether one has borrowed fact or concept or more. Only after your work is complete, can an experienced entertainment lawyer give you his/her opinion. Even then you might fall in a gray area.
Question: A friend and I want to do an adaptation of a book we know to be in the public domain (let's say it was Moby Dick). However, a relative of the author says that they have copyrighted the author's name. We take this to mean we could say "Moby Dick, based on the novel by Herman Melville," but we could not say "Herman Melville's Moby Dick." Does this sound like the correct read to you? The relative was imprecise about the implications of the copyrighting. We do not want to burden the project with additional participants unless we need to, so we want to see if we can proceed without the relative's participation.
Answer: Names and titles are not copyrightable; only expressions of an author are. Names can sometimes be protected under trademark law, however, even if the book is in the public domain. I do not see a problem in the realm of copyright law attributing it to the real author. Public domain material is available to anyone in the public to use. However, if you significantly change the story, it may be a form of misrepresentation and/or unfair competition to represent that your material is from the original author when it is not.
Question: A relative of an author of a book in the public domain said that they copyrighted the author's name. Now we hear that the relative actually trademarked the name, not copyrighted it. Could you tell me the implications of this? Can I write a screenplay and use this trademarked name, say like "Herman Melville's Moby Dick"?
Answer: Trademarks, unlike copyrights, can last indefinitely (e.g. Coca Cola) provided the mark is used to designate and distinguish one product from another. If the mark is abandoned, the trademark is lost. My question is this, is the estate actively marketing a series of books under this author's name? Also, I would question whether this is a valid mark because it appears to be a descriptive term. If the estate is claiming the name as a mark, conduct a trademark search or ask the estate to show you a copy of their trademark certificate to see if the Trademark Office thought this was a valid mark. Of course, that doesn't mean it can't be contested. And, I agree with you that you could say "Moby Dick, based on the novel by Herman Melville."
Question: Thanks for your time in answering these questions. I've learned a lot here. But haven't seen an answer to this: I am interested in producing a biopic of someone who lived in the 1800's. There are several biographies in print about the subject. My question is - do I have to acquire rights to each of them in order to adapt the story to a screenplay. If I choose the bio I like best, obtain the rights and use that slant, how can I protect myself from the other authors claiming I used their material?
Answer: It is not important when the subject lived, but whether the biographies about him are still protected under copyright law. An author in 1996 could write a biography about a person from the Eighteenth Century. Such a biography would be protected under the copyright laws. Current American copyright law provides for a copyright for the lifetime of an author plus 50 years. The law was changed effective 1978. Generally, a work more than 75 years old should be in the public domain, and some newer works may also be in the public domain. Of course, if all you borrow from the works are historical facts, ideas and other uncopyrightable matter, you don't need to obtain any rights. You will only need the author's permission if you use his expression (his approach to the material), the way he tells the story.
Question: My partners and I recently came up with an idea for a TV series that we would like to develop. Part of the angle of the show (and potential problem) is that we would like each episode to be written by non-union, non-professional writers. We would basically be soliciting scripts from the average American (a new writer for every episode). Our writing staff would then re-work the scripts if necessary to prepare them for shooting. Before we start pitching this idea to anyone, we need to know if it's legal to use non-union writers for TV.
Answer: You are under no obligation to become a signatory to the Writers Guild, or any other union. Keep in mind, however, that most experienced and talented screenwriters are members of the Writers Guild. The work product by non-professional writers may not be very good.
Question: I was about 1/3 of the way through my current screenplay when I decided I needed some additional research to add that extra touch of realism to my characters. To my surprise, one of my earlier scenes is eerily similar to a scene in the book (non-fiction) I purchased for the research. The setting is similar, the events surrounding the characters are similar and one of the characters is very similar, though has a different name. My question is, do I need to change my scene? If so, to what extent?
Answer: Assuming you came up with your material independently from the non-fiction book that you purchased, there would not be any legal grounds against you. There are certain requirements for copyright such as originality, and that the work is in a tangible medium of expression, but there is no requirement for you to be the first person to create it. In other words, if two people independently conceive the same story, each would own a copyright to their own work. The person who created the story first would be presumed to be the copyright author, but if it can be shown that the person who came up with the subsequent work did not rely on, or have access to the original, then the second work would not infringe the first. However, if the two works are very similar or identical, it would be suspicious, to say the least.
Since you have read a non-fiction book, you should be aware that the copyright owner of a non-fiction work has much less control over the material than someone who writes a purely fictional work. All historical incidents, for example, are in the public domain and are available to you just as they were available to the book's author. If you think there is a potential infringement claim against you, it would be wise to have an experienced entertainment lawyer review your script and the book before you go into production.
Question: I am currently releasing a pilot for a new television show to all of the major sports networks in North America. One has demanded a signed "idea submission form" which states that the network may have in the past or future received similar or exactly the same idea as mine, and that they may use that similar or exact idea with no compensation to me. The form however warrants that I am the sole "owner" of the idea. Is this something to be concerned about and if so, how can I protect my idea from being stolen from this or any network?
Answer: This is a submission release often used when studios, and television networks accept material from people "outside the industry." Generally, it is not required if your material is submitted through an agent, or an entertainment attorney, or if you have a personal relationship with the person to whom you are submitting it. Essentially, the network is concerned that you might be setting them up for a potential lawsuit for plagiarism. They are concerned that if you submit to them a project that is similar to one they are already developing, you may then have a claim against them. By signing this form, they make it more difficult for you to go after them because you are acknowledging that there is no implied agreement between the parties for you to be compensated. The form also attempts to limit your damages. This form will make it difficult for you to win a case in the event that the network negligently infringes your work. However, it will not be enforceable against you if they intentionally infringe your work. That is because such disclaimers, as a matter of public policy, are not enforceable to protect fraudulent or intentionally wrongful behavior.
Question: I have written jingles to portions of published songs. How do I find out if I can submit these to advertisers? Where and how would I get information for public domain?
Answer: If you are the author of jingles, then presumably you own the copyright to them. You can submit these to advertisers or to anyone else you like. I don't understand why you need information about what is in the public domain.
Question: I found master recording tapes in my garage recently, untouched since 1977. The tapes are a live music performance at a state college, by a band that I belonged to. The bandleader no longer lives in the USA, the music was all his compositions, he taught all of us in the band how to play the instruments (African) and he put the band together. I do not remember how I ended up with the tapes but I have had them since the performance. I doubt he or any of the band members remember the performance was recorded. The band did not pay for the recording—college recording students did it. The band was very popular in the northwest for 4-5 years, then broke-up. The band was never under any contract and I do not believe any of the songs were copyrighted. I can reach the bandleader if I want to, he is a fairly well known musician in the USA and internationally. I had the tapes transferred to master CD's; the quality is excellent and worthy of a commercial release. My questions: Who owns the tapes? Can I (should I) copyright the performance? What should be considered with regards to a possible commercial release?
Answer: When the music was created, a copyright came into existence. You are confused between the difference between registering a copyright, and creating a copyright. Registration is optional although it is advisable because it gives you extra protection. So your music was copyrighted when it was created. Presumably the band owns the copyright. It does not matter where the band members now live. It does not matter that no one paid for the recording, nor that college students did it. It does not matter that the band was not under contract to a third party.
Copyright law in the United States was changed in 1976, effective 1978. Assuming the prior law applies, the copyright would last for 28 years, and could then be renewed for an additional 28-year term (plus 19 more years if the work was in the second term when the law changed). If the copyright came into existence in 1977, it would last at least until 2005, at which time it would expire if not renewed. For works created since 1978, copyright lasts for the lifetime of the author, plus 70 years.
Question: A rather interesting tactic has come to my attention through another screenwriting message board. The poster suggested writing your screenplay as a novel first, as a means of securing more comprehensive rights to your story. Even if the novel isn't yet published, you would own the rights to other adaptations of your story, even if you sold the "film rights" in the form of your screenplay. Does this sound like something worth the tremendous effort involved?
Answer: No. Whether you create a novel or a screenplay, assuming you are not in the employ of someone else, you would own the copyright to the work and any derivative works. If you wrote a screenplay, you would control any derivative works, such as a book. Conversely, if you wrote a book first, you would control any derivative works, such as a screenplay.
Question: I have submitted a written idea for a show to a producer who is now shopping it to a network. We have no up-front agreement on compensation for the pitch because I had assumed that copyright law would be protective. Is that correct?
Answer: Copyright law does not protect ideas. Ideas are inherently not copyrightable, nor can themes, premises, concepts or words be copyrighted. In order to be protected, you need to create a work of authorship. This is the embellishment upon the idea. The more you embellish, the more you can protect your work under copyright law. While you cannot be protected under copyright law for theft of ideas, you can be protected under of contract law. For an in depth discussion of how to protect your interests by contract, see the article I have written on this topic.
Question: I am hoping you can help with an issue that seems to be a little different from those listed above. We are interested in using three two-minute clips from different films to gauge subject reaction in a research project. This is in an academic setting and does not have any profit motive whatsoever. Since the clips are being used for educational/research purposes, do we need to contact someone about using the clips, or would we be exempt from this. Journal articles, for example, can be copied once if they are being used for educational purposes. If we do need to contact someone, who do we contact, writers, film company, both, neither? Thanks for your help on this.
Answer: This may well be a fair use under copyright law. Certainly the fact that it is being done in an educational setting would weigh in its favor. The fact that your use is not competing against the owners of the clips would also weigh in your favor. The problem with the fair use doctrine is that it is a big gray area. Photocopying a Newsweek article for school use on one occasion would clearly be a fair use. But if a schoolteacher photocopied an entire textbook and handed it out to her students, it would not be a fair use. Unfortunately, many situations fall in between these extremes, and it can be hard to predict how the court will perceive the facts and weigh the factors in determining fair use. The best that you can hope for is to see if there are any precedents with facts similar to yours. Of course, if you are in a different jurisdiction, that precedent may not apply.
Question: In 1977, my husband recorded an album of 10 songs. The album was self-titled and only 500 were pressed. To his knowledge all of the songs were registered with the U.S. Copyright Office, however, he is unable to find any of the paperwork. It has recently come to our attention that the album is now a collectors' item worth several hundred dollars for an original, "original" being the key word. We have also found out via friends and an online catalog that there is a "reissue" being sold. Needless to say, he has never been contacted by anyone or given permission to anyone to reissue this album. It seems to us that there has been an infringement of the Copyright Law, and that he should be receiving some sort of compensation for the sales of this "reissued" album. I e-mailed one of the catalogs in question and asked for a list of the song titles to be sure it was his album they had listed in the catalog, and received a reply listing all of his song titles along with the following: 1976-1977 Reissue. Guinn Records K.C. MO /////180 Gram Vinyl. All of this information confirmed that it is his material being sold. Is there anything we can do or is there any way for him to collect what we feel is due him?
Answer: You can do a copyright search to determine whether, in fact, you did register the copyright. Then you can order a copy of your registration from the copyright office to replace the copy you may have lost. Assuming you registered your copyright in a timely manner, you may be entitled to statutory damages, injunctive relief and reimbursement of attorney fees from anyone who has infringed your copyright.
Question: Thank you for being such a great resource. I am in the process of creating an animated short to be entered into many film festivals and also pitched as a TV series. How would I go about protecting the name and look of my main character before my short is released? Are characters trademarkable or will a copyright of an image of the character protect well enough?
Answer: After you complete your script, and again after you complete your film, you should register each with the Copyright Office, using Form PA. This will register your copyright to your work. Copyright Law can, to some extent, protect characters that are sufficiently defined. However, this does not prevent others from creating characters with similar personality traits. Just because you wrote a detective story featuring Detective Sam Spade, it does not mean that you can thereafter prevent other people from writing stories that feature a hard-boiled private eye. As far as trade marking characters, if the character is used as a mark to identify the source of a product, then trademark and unfair competition law may apply. A trademark or service mark is a logo or name used to distinguish one source of product from another. Trademarks such as McDonalds, Apple, and Xerox distinguish the source of a product from those of other manufacturers. A character, which is represented visually, such as a cartoon character, will receive greater protection under Copyright law because of its visual representation.
Question: I've submitted a screenplay to a major production company, but the "release" form they required me to sign had a clause stating that, essentially, I could not submit the script to anyone else unless I gave them 30 days written notice of my intention to do so. Is this a legal clause? (In Australia, this clause would be invalid - it's in restraint of trade.)
Answer: I am not aware of any provision of California law that specifically prevents the use of a clause restricting you from submitting the script to others. I think this clause is onerous, and you should not agree to it. It is an interesting idea that such a clause might be a restraint of trade. It is against the public policy of California to enforce employment contracts that have restrictive covenants. Perhaps by analogy, the clause you describe would be unenforceable.
Question: I am writing a screenwriting guide and would like to use several award-winning films as samples. If I do not quote from the films, but rather only discuss their structure, is it "Fair Use?"
Answer: In my opinion, if you do not extensively quote from the films, but merely critique the stories, you would be protected under the Fair Use Doctrine.
Question: After copyrighting a script, I submitted it to a famous person's manager, who opened, read, and returned the material. A year later a movie was released with the exact plot line, characters, and verbatim dialogue. The only thing changed was the female lead was switched for the male star that directed the film. With no money to litigate, what can a person do?
Answer: If your case is as strong as you claim, you may be able to obtain an attorney to take the case on a contingent fee basis. The key here is the verbatim dialog. If they closely followed your dialog at length, then it is unlikely they created it on their own. In this case, I think you may have a strong suit for copyright infringement, and perhaps breach of contract.
Question: How can writers without residency in the U.S. protect their scripts when trying to sell them in the US?
Answer: A script can be protected by contract or under copyright law. To protect by contract, you need to have the party you are submitting the work to sign an agreement providing that they will compensate the author if they want to use the work. Moreover, the agreement should include a confidentiality clause, which would provide that the recipient not disclose the work to other parties.
To protect the work under U.S. copyright law, the author can register the work with the U.S. Copyright Office. This can be done even if the author doesn't reside in the United States, and is not a U.S. national. By registering one's work with the Copyright Office you establish a public record of your copyright claim, and make yourself eligible for statutory damages and other benefits in the event of an infringement.
Note that there are some special qualifications for a foreign author to register a work with the U.S. Copyright Office. The qualifications are reprinted below. Circular 38a,"International Copyright Relations of the United States" has additional details on treaty countries.
From the Copyright Website:
COPYRIGHT AND NATIONAL ORIGIN OF THE WORK
Copyright protection is available for all unpublished works, regardless of the nationality or domicile of the author
Published works are eligible for copyright protection in the United States if any one of the following conditions is met:
* On the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party (i.e., a country or intergovernmental organization other than the United States that is a party to an international agreement), or is a stateless person wherever that person may be domiciled; or
* The work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party. For purposes of this condition, a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be; or
* The work is a sound recording that was first fixed in a treaty party; or
* The work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or
* The work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or
* The work is a foreign work that was in the public domain in the United States prior to 1996 and its copyright was restored under the Uruguay Round Agreements Act (URAA). Request Circular 38b, "Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA-GATT)," for further information.
* The work comes within the scope of a Presidential proclamation.
Frequently Asked Questions: Contracts
Answers from Mark Litwak, Attorney At Law
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: Are contracts signed in the United States valid in other countries?
Answer: They may be valid but difficult to enforce against the party that is a foreign company or individual, especially if the defendant's assets are abroad. Parties that sign an agreement made under U.S. law are obliged to abide by the terms of that agreement. However, American courts cannot directly enforce their judgments in other lands. The United States has entered into international treaties that may permit a plaintiff with an American award to ask a foreign government to enforce it, but the process of doing so may be expensive and time-consuming.
When a plaintiff wins an award in an American court against a local defendant, the court can direct the sheriff to seize the assets of the defendant if the defendant does not voluntarily pay an award.
Question: About six years ago, I wrote and directed a short film and the contract I signed stipulated that any future work based on said material would have to be produced by the producer I originally signed with. Likewise, said producer cannot proceed with any project unless I am writer/director. To make a long story short, we're basically married. Looking back, I now realize it was a foolish deal to sign. Is there anything I can do to get out of this agreement or am I basically stuck with it?
Answer: Try to negotiate a settlement. If there is a termination provision in the contract exercise it. If there are any conditions the other party may not have met, they may be in default and you may be able to rescind the agreement. Try to work it out.
Question: Can you suggest an appropriate form for obtaining licenses, permissions, and approvals from talent and crew who have contributed to making a film or video production?
Answer: You may want to read my book: Contracts in the Film and Television Industry, 2nd Edition, published by Silman-James Press. It has a variety of form contracts with explanations. Be careful about using forms if you don't understand their terms.
Question: An on-air talent has an existing contract that was negotiated by their agent. They have one year left on the contract with their agent and three years left on their contract with a production company as talent. If the talent renegotiates his own contract with the production company, does he owe his current agent 10% on the new contract, or only 10% on the previous contract?
Answer: You need to examine the terms of your agency agreement and also to determine whether this is an agent who is franchised by one of the guilds. Most talent agreements provide that even if the talent negotiates a deal directly, the deal is commissionable by the agent as long as the agency agreement remains in force. Whether or not the agent is entitled to a commission on any renewals of an existing contract is another question, which requires review of the agreement with your agent.
Question: I am negotiating with multimedia designers to produce several versions of an interactive CD-ROM for use in initial test marketing. Is a broadly drafted non-compete clause in the designers' contracts sufficient to protect my product from falling into competitors' hands, or should I secure rights not only to the tangible artwork and computer coding but to all concepts and developmental strategies as well? If the latter, how exclusive should my company's rights be versus those of the designers?
Answer: It's difficult to answer your question on the basis of the facts you've supplied. On non-compete clauses, they are only binding on parties who signed them, not necessarily other potential competitors. If you want to prevent the information from being shared with anyone else, you need a confidentiality agreement. Non-compete clauses are not always enforceable. In California they usually are not enforceable, as a matter of public policy. Other states, such as New York, will enforce such clauses. Even where they are enforceable, they may need to be reasonable in scope.
Question: I am about to embark on the first page of a rewrite of another author's material. It will be collaboration. I will be doing the bulk of the writing. We are currently hammering out an agreement but can you please explain what I need to make it a viable, legal document? Do I need to sign with a notary, or self register mail it to myself, or is our simply signing and dating it sufficient for legal purposes?
Answer: A binding contract requires an offer, acceptance, and some consideration, which is usually money or something of value that is changing hands, but could be mutual promises. Notarizing the documents simply ensures that the person who is signing it is the person they say they are. Mailing a script to yourself is proof that on a certain date you mailed the script to yourself, as evidenced by the postmark. This is not great evidence, by the way—you would be better off registering the script with the Copyright Office. Contracts do not always have to be in writing but it is almost always advisable to have your agreement in writing so that you can prove the terms. For a contract to be enforceable, it should be clear and leave no uncertainty or ambiguity as to any of the material (i.e. important) terms.
Question: Will contracts negotiated for regular broadcast TV also apply to interactive TV or closed-circuit (non-broadcast) TV?
Answer: Whether contracts for regular broadcasting would encompass interactive TV or
closed-circuit TV would depend upon the terms of the contract. The language used is critical. If the language confers a broad grant of rights then it may include these media. Otherwise, it may not.
Question: Can I find anywhere on the Internet the printed text of the State of California law applicable to agreements entered into and to be fully performed therein as per the last paragraph of the Release Form that agents require you to sign before they will read your script? If I can find this, do you know the HTTP address? Thank you.
Answer: If this is the clause I think it is, it merely states that California law applies to the interpretation of the contract you are signing. Parties to a contract can, to some extent, determine which state's law applies. Suppose you had a New York writer enter into a contract with a California company. If there were a dispute, there would be a question as to whether California law applied or New York law applied. If parties agree beforehand which state's law applies, the courts will enforce this decision assuming there is some nexus with the state chosen.
Question: I've been asked to co-write 13 one-hour episodes for an internationally syndicated TV show (yet to be sold—but they have money to produce them). It is non-union, work for hire, no residuals. I think I might be able to get a few points, whatever that means. Because I am co-writing, I'll get $10,000 per episode. Any suggestions? Do I need an attorney? Are there any sample contracts for such things in your book or other places? Thanks.
Answer: If someone is willing to pay you $10,000 per episode, you certainly should consider having an attorney to spend a few hours to go over the contract with you. Each point is one percent of net profits. Depending upon how net profits are defined, it may amount to a great deal, or nothing. There are a number of different sample contracts in my book, Contracts for the Film & Television Industry,2nd Ed., published by Silman-James Press. None of those contracts, however, are specifically designed for your particular situation although many of the provisions in the writer employment contract are relevant.
Question: Can you either post a sample "deal memo" for optioning a work or refer a website that would have that information? I'm interested in optioning some material and want to get the legal verbiage correct. Thanks for your time and advice.
Answer: It can be dangerous to use someone else's deal memo if you do not understand the terms. Borrowing someone else's contract is like going into a pharmacy and asking a pharmacist for a blue pill because the last time you were sick, that's what worked. There is no such thing as a standard contract, although there are boilerplate clauses that can be borrowed from one agreement to another, if the use is appropriate. When you hire a lawyer, what you are paying for is his/her expertise to select a form appropriate for you and then customize it to your needs. Rarely do lawyers draft an entire contract from a blank piece of paper. Before you use a contract, you should make sure you understand the terms and how it should be modified to meet your needs. In my book, Dealmaking in the Film & Television Industry, 2nd Ed., (Silman-James Press), there are some sample contracts and explanations as to what all the legalese means. It can be obtained at most bookstores.
Question: I think I may need your services. I am currently signed to an independent label on a work for hire 5-album contract. Because the contract was signed in California, I am entitled to a work for hire salary of $6,000.00 per year. This is my understanding. However, the label refuses to pay me this, stating that they have no intentions of paying their artists that fee as it would break them and they have put a clause in every contract since me about their plan to withhold that. (But it's not in mine, they just assumed I would be naive as to the law and wouldn't even know it was something I was entitled to) I have been signed to them for 4 years and would like to find out what I can do to facilitate gaining these earnings.
Answer: If you have a contract that guarantees you a minimum fee of $6,000 per year, it is no defense that the other party does not want to live up to its obligation to pay you. It is irrelevant what they have done with their artists.
Question: My writing partner and I have recently submitted several scripts of a television series we created to a high power entertainment producer. Before this submission, we talked with a local producer and friend about a possibility of him doing this show. We have only discussed the "what ifs" about selling it, there is nothing in writing. We have been asking for something in writing to lock this guy in, but he has just blown us off. So when we told him that someone else was interested in the show, he wrote up a confidentiality agreement for us because we were working. The confidentiality agreement that he created was between him and the other person, our names were nowhere on it. We own the copyright and the scripts, however he believes that he does. If we get offered a deal from this Hollywood producer can this other producer take legal action claiming that we have to involve him because we had talked to him about doing the project? Also, what constitutes a verbal implied agreement in this case? Is it possible that we entered one without knowing it?
Answer: All contracts can be enforceable, and in some circumstances contracts can be implied from the behavior of the parties. Most states have legislation called a Statute of Frauds, which requires that certain contracts be in writing. For instance, contracts that involve large sums of money, or require performance over more than one year, are often required to be in writing. A contract to transfer exclusive copyright interest needs to be in writing. Non-exclusive rights under a copyright can be transferred orally. Whether or not the producer you spoke to has any rights in your projects depends upon what was said and agreed upon by the parties.
Question: I'm a Pepperdine University business student and I am beginning research for my business law term paper. My topic is "The Deal Memo - A Sufficient Memorandum for an Enforceable Contract?" Since this is my first foray into this type of research, I would greatly appreciate any pointers you could provide on (1) any past or current cases involving the enforceability of a deal memo; (2) how common is their use as a prelude to the contract; (3) are they generally as enforceable as a "real" contract? Thanks in advance for your help and for this website, it is a valuable resource for this community.
Answer: A Deal memo is simply a short contract. The shorter the contract, the less specifics, thus more room for ambiguity. If the essential terms of a contract are not stated, the contract may be unenforceable. If a judge cannot determine all the important terms that the parties have agreed to, the court may simply refuse to enforce the contract. It makes no difference whether a contract is characterized as a deal memo, contract, or agreement. The use of deal memos is quite common in the movie business. Sometimes they are followed by long-form agreements. Other times they are not. They are enforceable as a real contract because in most instances, they are real contracts. However, both parties are less protected because a short-form deal memo often leaves many issues unaddressed. Thus, if there is a dispute, there may not be any language in the contract that addresses the respective rights and obligations of the party in regard to that issue. I always recommend using a long-form agreement to avoid any disputes in the future.
Question: Could you define "modified adjusted gross" as it applies to back-end participation? We're assigning rights to a design we did and bargaining for backend on ancillary uses. Also, I have a verbal agreement with a writer to use his material and his voice for a demo reel that I designed, directed and produced at my cost. The project is now being courted by a TV network—should I get my deal ironed out with the writer now or wait until we have a bona fide offer? Verbally, we agreed to a 60-40 split (me having 60) but I don't know of what?
Answer: "Modified Adjusted Gross" means whatever the parties decide it should mean. There is no standard definition within the industry. In fact, many profit definitions that are labeled as "Modified Adjusted Gross," upon examination appear to be more akin to a net profit definition. As far as your agreement with the writer, you would be well advised to document this agreement in writing before preceding any further.
Question: Should I sign a screenplay Purchase Agreement at the same time I sign an Option Agreement? The indie producer wants a 6-month free option. As an un-produced writer, what leverage do I have?
Answer: Usually the way these deals are structured is that there is an option contract that runs two or three pages, and attached to it as an exhibit is a purchase agreement that automatically kicks in if the option is exercised. If the option is not exercised, then all the purchaser's rights expire. Whether you should give an indie producer a free six-month option depends upon your assessment of whether or not this producer has the ability to get your screenplay into production, and whether you have other opportunities that you would have to forego if you grant the option.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: Are contracts signed in the United States valid in other countries?
Answer: They may be valid but difficult to enforce against the party that is a foreign company or individual, especially if the defendant's assets are abroad. Parties that sign an agreement made under U.S. law are obliged to abide by the terms of that agreement. However, American courts cannot directly enforce their judgments in other lands. The United States has entered into international treaties that may permit a plaintiff with an American award to ask a foreign government to enforce it, but the process of doing so may be expensive and time-consuming.
When a plaintiff wins an award in an American court against a local defendant, the court can direct the sheriff to seize the assets of the defendant if the defendant does not voluntarily pay an award.
Question: About six years ago, I wrote and directed a short film and the contract I signed stipulated that any future work based on said material would have to be produced by the producer I originally signed with. Likewise, said producer cannot proceed with any project unless I am writer/director. To make a long story short, we're basically married. Looking back, I now realize it was a foolish deal to sign. Is there anything I can do to get out of this agreement or am I basically stuck with it?
Answer: Try to negotiate a settlement. If there is a termination provision in the contract exercise it. If there are any conditions the other party may not have met, they may be in default and you may be able to rescind the agreement. Try to work it out.
Question: Can you suggest an appropriate form for obtaining licenses, permissions, and approvals from talent and crew who have contributed to making a film or video production?
Answer: You may want to read my book: Contracts in the Film and Television Industry, 2nd Edition, published by Silman-James Press. It has a variety of form contracts with explanations. Be careful about using forms if you don't understand their terms.
Question: An on-air talent has an existing contract that was negotiated by their agent. They have one year left on the contract with their agent and three years left on their contract with a production company as talent. If the talent renegotiates his own contract with the production company, does he owe his current agent 10% on the new contract, or only 10% on the previous contract?
Answer: You need to examine the terms of your agency agreement and also to determine whether this is an agent who is franchised by one of the guilds. Most talent agreements provide that even if the talent negotiates a deal directly, the deal is commissionable by the agent as long as the agency agreement remains in force. Whether or not the agent is entitled to a commission on any renewals of an existing contract is another question, which requires review of the agreement with your agent.
Question: I am negotiating with multimedia designers to produce several versions of an interactive CD-ROM for use in initial test marketing. Is a broadly drafted non-compete clause in the designers' contracts sufficient to protect my product from falling into competitors' hands, or should I secure rights not only to the tangible artwork and computer coding but to all concepts and developmental strategies as well? If the latter, how exclusive should my company's rights be versus those of the designers?
Answer: It's difficult to answer your question on the basis of the facts you've supplied. On non-compete clauses, they are only binding on parties who signed them, not necessarily other potential competitors. If you want to prevent the information from being shared with anyone else, you need a confidentiality agreement. Non-compete clauses are not always enforceable. In California they usually are not enforceable, as a matter of public policy. Other states, such as New York, will enforce such clauses. Even where they are enforceable, they may need to be reasonable in scope.
Question: I am about to embark on the first page of a rewrite of another author's material. It will be collaboration. I will be doing the bulk of the writing. We are currently hammering out an agreement but can you please explain what I need to make it a viable, legal document? Do I need to sign with a notary, or self register mail it to myself, or is our simply signing and dating it sufficient for legal purposes?
Answer: A binding contract requires an offer, acceptance, and some consideration, which is usually money or something of value that is changing hands, but could be mutual promises. Notarizing the documents simply ensures that the person who is signing it is the person they say they are. Mailing a script to yourself is proof that on a certain date you mailed the script to yourself, as evidenced by the postmark. This is not great evidence, by the way—you would be better off registering the script with the Copyright Office. Contracts do not always have to be in writing but it is almost always advisable to have your agreement in writing so that you can prove the terms. For a contract to be enforceable, it should be clear and leave no uncertainty or ambiguity as to any of the material (i.e. important) terms.
Question: Will contracts negotiated for regular broadcast TV also apply to interactive TV or closed-circuit (non-broadcast) TV?
Answer: Whether contracts for regular broadcasting would encompass interactive TV or
closed-circuit TV would depend upon the terms of the contract. The language used is critical. If the language confers a broad grant of rights then it may include these media. Otherwise, it may not.
Question: Can I find anywhere on the Internet the printed text of the State of California law applicable to agreements entered into and to be fully performed therein as per the last paragraph of the Release Form that agents require you to sign before they will read your script? If I can find this, do you know the HTTP address? Thank you.
Answer: If this is the clause I think it is, it merely states that California law applies to the interpretation of the contract you are signing. Parties to a contract can, to some extent, determine which state's law applies. Suppose you had a New York writer enter into a contract with a California company. If there were a dispute, there would be a question as to whether California law applied or New York law applied. If parties agree beforehand which state's law applies, the courts will enforce this decision assuming there is some nexus with the state chosen.
Question: I've been asked to co-write 13 one-hour episodes for an internationally syndicated TV show (yet to be sold—but they have money to produce them). It is non-union, work for hire, no residuals. I think I might be able to get a few points, whatever that means. Because I am co-writing, I'll get $10,000 per episode. Any suggestions? Do I need an attorney? Are there any sample contracts for such things in your book or other places? Thanks.
Answer: If someone is willing to pay you $10,000 per episode, you certainly should consider having an attorney to spend a few hours to go over the contract with you. Each point is one percent of net profits. Depending upon how net profits are defined, it may amount to a great deal, or nothing. There are a number of different sample contracts in my book, Contracts for the Film & Television Industry,2nd Ed., published by Silman-James Press. None of those contracts, however, are specifically designed for your particular situation although many of the provisions in the writer employment contract are relevant.
Question: Can you either post a sample "deal memo" for optioning a work or refer a website that would have that information? I'm interested in optioning some material and want to get the legal verbiage correct. Thanks for your time and advice.
Answer: It can be dangerous to use someone else's deal memo if you do not understand the terms. Borrowing someone else's contract is like going into a pharmacy and asking a pharmacist for a blue pill because the last time you were sick, that's what worked. There is no such thing as a standard contract, although there are boilerplate clauses that can be borrowed from one agreement to another, if the use is appropriate. When you hire a lawyer, what you are paying for is his/her expertise to select a form appropriate for you and then customize it to your needs. Rarely do lawyers draft an entire contract from a blank piece of paper. Before you use a contract, you should make sure you understand the terms and how it should be modified to meet your needs. In my book, Dealmaking in the Film & Television Industry, 2nd Ed., (Silman-James Press), there are some sample contracts and explanations as to what all the legalese means. It can be obtained at most bookstores.
Question: I think I may need your services. I am currently signed to an independent label on a work for hire 5-album contract. Because the contract was signed in California, I am entitled to a work for hire salary of $6,000.00 per year. This is my understanding. However, the label refuses to pay me this, stating that they have no intentions of paying their artists that fee as it would break them and they have put a clause in every contract since me about their plan to withhold that. (But it's not in mine, they just assumed I would be naive as to the law and wouldn't even know it was something I was entitled to) I have been signed to them for 4 years and would like to find out what I can do to facilitate gaining these earnings.
Answer: If you have a contract that guarantees you a minimum fee of $6,000 per year, it is no defense that the other party does not want to live up to its obligation to pay you. It is irrelevant what they have done with their artists.
Question: My writing partner and I have recently submitted several scripts of a television series we created to a high power entertainment producer. Before this submission, we talked with a local producer and friend about a possibility of him doing this show. We have only discussed the "what ifs" about selling it, there is nothing in writing. We have been asking for something in writing to lock this guy in, but he has just blown us off. So when we told him that someone else was interested in the show, he wrote up a confidentiality agreement for us because we were working. The confidentiality agreement that he created was between him and the other person, our names were nowhere on it. We own the copyright and the scripts, however he believes that he does. If we get offered a deal from this Hollywood producer can this other producer take legal action claiming that we have to involve him because we had talked to him about doing the project? Also, what constitutes a verbal implied agreement in this case? Is it possible that we entered one without knowing it?
Answer: All contracts can be enforceable, and in some circumstances contracts can be implied from the behavior of the parties. Most states have legislation called a Statute of Frauds, which requires that certain contracts be in writing. For instance, contracts that involve large sums of money, or require performance over more than one year, are often required to be in writing. A contract to transfer exclusive copyright interest needs to be in writing. Non-exclusive rights under a copyright can be transferred orally. Whether or not the producer you spoke to has any rights in your projects depends upon what was said and agreed upon by the parties.
Question: I'm a Pepperdine University business student and I am beginning research for my business law term paper. My topic is "The Deal Memo - A Sufficient Memorandum for an Enforceable Contract?" Since this is my first foray into this type of research, I would greatly appreciate any pointers you could provide on (1) any past or current cases involving the enforceability of a deal memo; (2) how common is their use as a prelude to the contract; (3) are they generally as enforceable as a "real" contract? Thanks in advance for your help and for this website, it is a valuable resource for this community.
Answer: A Deal memo is simply a short contract. The shorter the contract, the less specifics, thus more room for ambiguity. If the essential terms of a contract are not stated, the contract may be unenforceable. If a judge cannot determine all the important terms that the parties have agreed to, the court may simply refuse to enforce the contract. It makes no difference whether a contract is characterized as a deal memo, contract, or agreement. The use of deal memos is quite common in the movie business. Sometimes they are followed by long-form agreements. Other times they are not. They are enforceable as a real contract because in most instances, they are real contracts. However, both parties are less protected because a short-form deal memo often leaves many issues unaddressed. Thus, if there is a dispute, there may not be any language in the contract that addresses the respective rights and obligations of the party in regard to that issue. I always recommend using a long-form agreement to avoid any disputes in the future.
Question: Could you define "modified adjusted gross" as it applies to back-end participation? We're assigning rights to a design we did and bargaining for backend on ancillary uses. Also, I have a verbal agreement with a writer to use his material and his voice for a demo reel that I designed, directed and produced at my cost. The project is now being courted by a TV network—should I get my deal ironed out with the writer now or wait until we have a bona fide offer? Verbally, we agreed to a 60-40 split (me having 60) but I don't know of what?
Answer: "Modified Adjusted Gross" means whatever the parties decide it should mean. There is no standard definition within the industry. In fact, many profit definitions that are labeled as "Modified Adjusted Gross," upon examination appear to be more akin to a net profit definition. As far as your agreement with the writer, you would be well advised to document this agreement in writing before preceding any further.
Question: Should I sign a screenplay Purchase Agreement at the same time I sign an Option Agreement? The indie producer wants a 6-month free option. As an un-produced writer, what leverage do I have?
Answer: Usually the way these deals are structured is that there is an option contract that runs two or three pages, and attached to it as an exhibit is a purchase agreement that automatically kicks in if the option is exercised. If the option is not exercised, then all the purchaser's rights expire. Whether you should give an indie producer a free six-month option depends upon your assessment of whether or not this producer has the ability to get your screenplay into production, and whether you have other opportunities that you would have to forego if you grant the option.
Frequently Asked Questions: Career Advice
Answers from Mark Litwak, Attorney At Law
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: Out of the UC schools here in California, which is the best one to attend for intellectual property and copyright and/or entertainment law?
Answer: UCLA is certainly a good school for entertainment law. Many other law schools also offer such courses. Law students who want to go into entertainment law should take contracts and torts, which all students take, and such electives as copyright, trademark, and maybe patent law. Besides the course work, attending a law school in the vicinity of where you want to practice may have advantages. If you think you will be working in Los Angeles, then attending a school there will allow you to participate in internships and summer jobs that may help you establish the relationships needed to get that first job. Most entertainment lawyers are located in New York or Los Angeles, although those who specialize in music might reside in Nashville, and those who are in multimedia might reside in Seattle or Silicon Valley.
Question: This fall I will be a 3rd year law student at Duke University School of Law. I was hoping you could refer me to some reference source listing Los Angeles law firms specializing in entertainment law (in particular, motion picture and television law). While I have looked in such references as NALP and Martindale-Hubbell, the former only shows big law firms that may have a small entertainment law division while the latter in most cases does not mention the type or the extent of law practiced at the firm. I am looking for some resource that lists all firms (both big and small), lists the extent to which each firm practices entertainment law (5%, 100%, etc.), lists the type of entertainment law practiced (e.g. litigation, transactional, etc.) and lists a contact for each firm where a resume and cover letter can be sent.
In addition, I want to get your opinion about my chances of being hired by an L.A. entertainment law firm. First, I am in the middle of my class at Duke (which is in North Carolina, if you didn't know). Second, I was not hired by any law firm to be a summer associate this summer; however, I am currently interning with the St. Louis Film Office. And in addition to having no prior experience in a law firm, this internship is my only real exposure to the entertainment industry other than a great passion to be a part of it—and it is not really a legal internship. Will L.A. firms take me more serious with this on my resume or is my lack of work experience in a firm environment going to haunt me forever?
Answer: The Hollywood Bluebook Directory has a listing of entertainment lawyers. It does not give all the information that you want but it is a lot easier to use to find the entertainment law firms than Martindale-Hubbell. In regard to finding employment as an entertainment lawyer, you should try to work as an intern or law clerk in a production company, studio or law firm, preferably one in New York or Los Angeles if you plan to go into the movie or television industry. It's not only the experience you'll gain that will make you more valuable, but also the personal relationships you'll forge that may help you get your foot in the door. See my article on breaking into showbiz on this website for additional insight.
Question: My question is along the same lines as the law student from Duke. I have just graduated from Indiana University School of Law, with a JD/MBA. Not until after I began law school did I become interested in entertainment law, otherwise I would have gone to a California school. I'm a bit further along than the above poster, as I've already found, researched, applied to, and been rejected by most of the entertainment firms in L.A. Most won't hire freshly minted lawyers. In what state and in what areas of law in addition to entertainment should I attempt to work for a few years in order to make myself attractive to the aforementioned firms. Is moving to L.A. a necessity at this point? Can I practice corporate/business law in Chicago for 2-3 years and have any hope of making the switch to L.A. at that point?
Answer: It's difficult to break into entertainment law since this is a relatively small field and there are many people who would like to practice this type of law. After you have two or three years of experience, you become a much more valuable commodity. The problem is that law school doesn't give you the practical knowledge that allows you to work in the field. It teaches you the theory and principles, but doesn't really explain on a day-to-day basis how to service clients. Therefore, I would recommend, if there is any way that you can apprentice or intern in a law firm, this could potentially lead to employment. Another way in is working for a large law firm in some other division, such as litigation, and then transferring into the entertainment practice at some future point in time.
Question: I am an Australian who is in his final stages of a law degree at Bond University on the Gold Coast. I intend to complete a Masters program with an entertainment law specialization in the USA. I consider this experience will help in my employment prospects here in Australia. My question is which universities are the leaders in this field?
Answer: Law schools provide an education for lawyers going into many different fields. Many law schools offer intellectual property, entertainment law, copyright law, trademark law, and patent law courses. A number of law schools in New York and L.A. have more than the usual number of entertainment-related courses. You might want to try to enroll in UCLA, USC, NYU, Southwestern or Loyola law schools.
Question: Have read many of your books in my graduate film program, which is based on legal and business aspects of the industry. I also work at a large and well-respected cable network. Does this real-life experience translate well into law school? I would be 33 when I matriculate, if I decide to.
Answer: I am not sure how much your work experience will help you in law school. I think if ultimately you intend to practice entertainment law, or go back to the cable industry, your background will certainly help you understand and succeed in the business. Law is not practiced in isolation. To be an effective lawyer, you have to understand the business of the client.
Question: I am a freshman in college and leaning toward a profession in law. I am very interested in the entertainment law area especially dealing with music. How can I receive more information about a career in entertainment law?
Answer: There is an article that I posted on this website which discusses breaking into show business. Although it deals more with the television and film business, than the music industry, some of the information may prove useful to you.
Question: I am a 1L at New York Law School (not NYU). My first semester GPA was 3.0. I am interested in either media, communication or entertainment law and am applying for two media law fellowships offered at my school: FCC and Capital Cities. I do not have a background in media but do have a strong interest in it. I do not know much about media law and would like to know where I can go to get general information on what attorneys in that field actually do. Also, although I know I'd like to gain exposure in that area, I do not know if I'd be able to articulate that on the interview. I would not want to say something as simplistic "I've always been interested in media" but that is the truth and I would like to combine that interest with my legal education. How can I make that sound more intelligent during my interview?
Answer: There are a number of organizations comprised of entertainment lawyers. The ABA has an Entertainment and Sports Law section. They hold a forum every year and publish a journal. The Beverly Hills Bar Association publishes a variety of publications. California Lawyers for the Arts, and Volunteer Lawyers for the Arts (New York) also have publications, activities, and take on interns. There is an article on my website about breaking into show business that addresses how attorneys can break into the business.
Question: I'm in the process of applying to various law schools in the NYC area, interested in eventually practicing entertainment law. I have an internship right now doing publicity for a large cable network.
My family has mentioned to me that many entertainment lawyers are also agents. I am open-minded and I do love the business. In the excerpts from your book, you write of William Morris and CAA training as a means of getting into the entertainment industry. For a law school graduate, would this program still apply? Also, I plan on working for a year before attending law school. Of course, I want to work in the industry. Would agencies in NY hire a recent college graduate with minimal experience as a receptionist? My bet is that the small ones would. Should I pursue this route, or stick with my comfortable cable network in hopes of advancement? Also, do any entertainment law firms hire interns? Thanks so much
Answer: Most entertainment attorneys are not agents. The entertainment law field spans different areas, including movies, television, book publishing, multimedia, and music. Increasingly, attorneys specialize in one or more of these fields. As far as I know, William Morris and CAA still have training programs, and selection is competitive. Entertainment law firms may employ interns. Some interns, while unpaid, may receive academic credit.
Question: I am currently working on a Masters of Arts in Communications. I am trying to decide on my thesis topic. My goal is to be able to take my thesis to a job interview at a television/film production company and find work in administration. The focus of my Masters thus far has been Copyrights, New Technologies and Society. I am currently thinking that my thesis will cover the topic of Copyright Clearance in the world of New Technologies and the various themes that surround the topic (the changing of the Copyright laws to look at the use of the copy, and how the copy is used, as oppose to the copy itself.) I would ask you for any recommendations you may have for a thesis topic, or if you can advise me on the value of my current topic idea that the industry would place on it. I also have plans to complete an MBA part-time at some point down the line.
Answer: I think the question of worldwide copyright clearance in light of new technologies is a worthy topic, and there are many areas to explore. One topic that I am particularly interested in is how, in a global marketplace, can producers protect themselves considering that copyright laws are applied territorially. In other words, how can an American producer secure all the rights to work created in the United States, and ensure that these rights will be sufficient, if, for example, the final product is distributed in France, where they apply French law?
Question: I am a student in high school who wants both to be an actor and an agent at the same time. I am a Boy Scout and I am doing my last merit badge for Eagle and my question is what are the qualifications that you need to be an agent, and what are some of the job responsibilities. What are some of the different organizations, what are some of the different trade associations, and professional associations? What are some of the government regulations, and licenses involved in the career field? Thank you so much.
Answer: Some states regulate agents, and in those states you need to be licensed in order to act as a talent agent. In California, for instance, you need to register with the Labor Department after qualifying as an agent. Most agents apprentice at an agency before becoming agents on their own. An agent is essentially a salesperson selling talent: writers, actors, and directors. Their trade organization is the Association of Talent Agents, based in Los Angeles.
Question: I have a question regarding starting off as an agent. I am wondering the right schools to look at and how to go about getting some experience in the field before I go to law school.
Answer: Most agents apprentice at talent agencies in order to learn the business. I am not aware of any schools that teach one how to become an agent.
Question: I just completed my second year at the University of Texas School of Law and I am in L.A. to learn more about the entertainment industry. I'm anxious to get involved and hoped you could recommend a few groups, forums, etc., which may be beneficial to make contacts in the field?
Answer: You might want to work with California Lawyers for the Arts (http://www.calawyersforthearts.org or 310-998-5590), which is a volunteer organization of lawyers helping artists. You may also want to join such organizations as IFP West (http://www.ifp.org or 310- 432-1200) and the International Documentary Association (http://www.documentary.org or 213.534.3600).
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: Out of the UC schools here in California, which is the best one to attend for intellectual property and copyright and/or entertainment law?
Answer: UCLA is certainly a good school for entertainment law. Many other law schools also offer such courses. Law students who want to go into entertainment law should take contracts and torts, which all students take, and such electives as copyright, trademark, and maybe patent law. Besides the course work, attending a law school in the vicinity of where you want to practice may have advantages. If you think you will be working in Los Angeles, then attending a school there will allow you to participate in internships and summer jobs that may help you establish the relationships needed to get that first job. Most entertainment lawyers are located in New York or Los Angeles, although those who specialize in music might reside in Nashville, and those who are in multimedia might reside in Seattle or Silicon Valley.
Question: This fall I will be a 3rd year law student at Duke University School of Law. I was hoping you could refer me to some reference source listing Los Angeles law firms specializing in entertainment law (in particular, motion picture and television law). While I have looked in such references as NALP and Martindale-Hubbell, the former only shows big law firms that may have a small entertainment law division while the latter in most cases does not mention the type or the extent of law practiced at the firm. I am looking for some resource that lists all firms (both big and small), lists the extent to which each firm practices entertainment law (5%, 100%, etc.), lists the type of entertainment law practiced (e.g. litigation, transactional, etc.) and lists a contact for each firm where a resume and cover letter can be sent.
In addition, I want to get your opinion about my chances of being hired by an L.A. entertainment law firm. First, I am in the middle of my class at Duke (which is in North Carolina, if you didn't know). Second, I was not hired by any law firm to be a summer associate this summer; however, I am currently interning with the St. Louis Film Office. And in addition to having no prior experience in a law firm, this internship is my only real exposure to the entertainment industry other than a great passion to be a part of it—and it is not really a legal internship. Will L.A. firms take me more serious with this on my resume or is my lack of work experience in a firm environment going to haunt me forever?
Answer: The Hollywood Bluebook Directory has a listing of entertainment lawyers. It does not give all the information that you want but it is a lot easier to use to find the entertainment law firms than Martindale-Hubbell. In regard to finding employment as an entertainment lawyer, you should try to work as an intern or law clerk in a production company, studio or law firm, preferably one in New York or Los Angeles if you plan to go into the movie or television industry. It's not only the experience you'll gain that will make you more valuable, but also the personal relationships you'll forge that may help you get your foot in the door. See my article on breaking into showbiz on this website for additional insight.
Question: My question is along the same lines as the law student from Duke. I have just graduated from Indiana University School of Law, with a JD/MBA. Not until after I began law school did I become interested in entertainment law, otherwise I would have gone to a California school. I'm a bit further along than the above poster, as I've already found, researched, applied to, and been rejected by most of the entertainment firms in L.A. Most won't hire freshly minted lawyers. In what state and in what areas of law in addition to entertainment should I attempt to work for a few years in order to make myself attractive to the aforementioned firms. Is moving to L.A. a necessity at this point? Can I practice corporate/business law in Chicago for 2-3 years and have any hope of making the switch to L.A. at that point?
Answer: It's difficult to break into entertainment law since this is a relatively small field and there are many people who would like to practice this type of law. After you have two or three years of experience, you become a much more valuable commodity. The problem is that law school doesn't give you the practical knowledge that allows you to work in the field. It teaches you the theory and principles, but doesn't really explain on a day-to-day basis how to service clients. Therefore, I would recommend, if there is any way that you can apprentice or intern in a law firm, this could potentially lead to employment. Another way in is working for a large law firm in some other division, such as litigation, and then transferring into the entertainment practice at some future point in time.
Question: I am an Australian who is in his final stages of a law degree at Bond University on the Gold Coast. I intend to complete a Masters program with an entertainment law specialization in the USA. I consider this experience will help in my employment prospects here in Australia. My question is which universities are the leaders in this field?
Answer: Law schools provide an education for lawyers going into many different fields. Many law schools offer intellectual property, entertainment law, copyright law, trademark law, and patent law courses. A number of law schools in New York and L.A. have more than the usual number of entertainment-related courses. You might want to try to enroll in UCLA, USC, NYU, Southwestern or Loyola law schools.
Question: Have read many of your books in my graduate film program, which is based on legal and business aspects of the industry. I also work at a large and well-respected cable network. Does this real-life experience translate well into law school? I would be 33 when I matriculate, if I decide to.
Answer: I am not sure how much your work experience will help you in law school. I think if ultimately you intend to practice entertainment law, or go back to the cable industry, your background will certainly help you understand and succeed in the business. Law is not practiced in isolation. To be an effective lawyer, you have to understand the business of the client.
Question: I am a freshman in college and leaning toward a profession in law. I am very interested in the entertainment law area especially dealing with music. How can I receive more information about a career in entertainment law?
Answer: There is an article that I posted on this website which discusses breaking into show business. Although it deals more with the television and film business, than the music industry, some of the information may prove useful to you.
Question: I am a 1L at New York Law School (not NYU). My first semester GPA was 3.0. I am interested in either media, communication or entertainment law and am applying for two media law fellowships offered at my school: FCC and Capital Cities. I do not have a background in media but do have a strong interest in it. I do not know much about media law and would like to know where I can go to get general information on what attorneys in that field actually do. Also, although I know I'd like to gain exposure in that area, I do not know if I'd be able to articulate that on the interview. I would not want to say something as simplistic "I've always been interested in media" but that is the truth and I would like to combine that interest with my legal education. How can I make that sound more intelligent during my interview?
Answer: There are a number of organizations comprised of entertainment lawyers. The ABA has an Entertainment and Sports Law section. They hold a forum every year and publish a journal. The Beverly Hills Bar Association publishes a variety of publications. California Lawyers for the Arts, and Volunteer Lawyers for the Arts (New York) also have publications, activities, and take on interns. There is an article on my website about breaking into show business that addresses how attorneys can break into the business.
Question: I'm in the process of applying to various law schools in the NYC area, interested in eventually practicing entertainment law. I have an internship right now doing publicity for a large cable network.
My family has mentioned to me that many entertainment lawyers are also agents. I am open-minded and I do love the business. In the excerpts from your book, you write of William Morris and CAA training as a means of getting into the entertainment industry. For a law school graduate, would this program still apply? Also, I plan on working for a year before attending law school. Of course, I want to work in the industry. Would agencies in NY hire a recent college graduate with minimal experience as a receptionist? My bet is that the small ones would. Should I pursue this route, or stick with my comfortable cable network in hopes of advancement? Also, do any entertainment law firms hire interns? Thanks so much
Answer: Most entertainment attorneys are not agents. The entertainment law field spans different areas, including movies, television, book publishing, multimedia, and music. Increasingly, attorneys specialize in one or more of these fields. As far as I know, William Morris and CAA still have training programs, and selection is competitive. Entertainment law firms may employ interns. Some interns, while unpaid, may receive academic credit.
Question: I am currently working on a Masters of Arts in Communications. I am trying to decide on my thesis topic. My goal is to be able to take my thesis to a job interview at a television/film production company and find work in administration. The focus of my Masters thus far has been Copyrights, New Technologies and Society. I am currently thinking that my thesis will cover the topic of Copyright Clearance in the world of New Technologies and the various themes that surround the topic (the changing of the Copyright laws to look at the use of the copy, and how the copy is used, as oppose to the copy itself.) I would ask you for any recommendations you may have for a thesis topic, or if you can advise me on the value of my current topic idea that the industry would place on it. I also have plans to complete an MBA part-time at some point down the line.
Answer: I think the question of worldwide copyright clearance in light of new technologies is a worthy topic, and there are many areas to explore. One topic that I am particularly interested in is how, in a global marketplace, can producers protect themselves considering that copyright laws are applied territorially. In other words, how can an American producer secure all the rights to work created in the United States, and ensure that these rights will be sufficient, if, for example, the final product is distributed in France, where they apply French law?
Question: I am a student in high school who wants both to be an actor and an agent at the same time. I am a Boy Scout and I am doing my last merit badge for Eagle and my question is what are the qualifications that you need to be an agent, and what are some of the job responsibilities. What are some of the different organizations, what are some of the different trade associations, and professional associations? What are some of the government regulations, and licenses involved in the career field? Thank you so much.
Answer: Some states regulate agents, and in those states you need to be licensed in order to act as a talent agent. In California, for instance, you need to register with the Labor Department after qualifying as an agent. Most agents apprentice at an agency before becoming agents on their own. An agent is essentially a salesperson selling talent: writers, actors, and directors. Their trade organization is the Association of Talent Agents, based in Los Angeles.
Question: I have a question regarding starting off as an agent. I am wondering the right schools to look at and how to go about getting some experience in the field before I go to law school.
Answer: Most agents apprentice at talent agencies in order to learn the business. I am not aware of any schools that teach one how to become an agent.
Question: I just completed my second year at the University of Texas School of Law and I am in L.A. to learn more about the entertainment industry. I'm anxious to get involved and hoped you could recommend a few groups, forums, etc., which may be beneficial to make contacts in the field?
Answer: You might want to work with California Lawyers for the Arts (http://www.calawyersforthearts.org or 310-998-5590), which is a volunteer organization of lawyers helping artists. You may also want to join such organizations as IFP West (http://www.ifp.org or 310- 432-1200) and the International Documentary Association (http://www.documentary.org or 213.534.3600).
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