Congratulations to our clients, director Stefan Schaefer, and producers Jonathan Stern and Benjamin Odell.
Their film, CONFESS, will premiere as part of the narrative competition at the Hamptons International Film Festival.
CONFESS charts the exploits of disillusioned ex-hacker Terell Lessor (Eugene Byrd). Employing strategically placed spy-cams, he captures compromising footage of those who slighted him in the past, broadcasting edits via the internet. Recognizing the power of this model, and working in tandem with accomplice Olivia (Ali Larter), he targets CEO's, politicians, and members of the power elite. Soon Terell's every action is front-page news, law enforcement has labeled him a new breed of terrorist, and the movement he spawned is spiraling out of control.
CONFESS will be screening at:
1) 9:00 p.m. on Friday, October 21, 2005 at the UA 4 Theater in East Hampton.
2) 1:00 p.m. on Saturday, October 22, 2005 at the UA 6 Theater in East Hampton.
3) 7:00 p.m. on Saturday, October 22, 2005 at the Panasonic VIP screening room at the South Hampton Inn.
For more information click on
http://www.hamptonsfilmfest.org/
CRAZY LOVE PREMIERS AT HOLLYWOOD FILM FESTIVAL
CRAZY LOVE will premier at ArcLight Cinemas at 6360 West Sunset Boulevard at the Hollywood Film festival on October 22, 2005, at 2 p.m. (Parking entrance on Ivar).
Tickets for CRAZY LOVE are now available through the ArcLight web site.
http://www.arclightcinemas.com
DEAL MAKING PUBLISHED IN KOREAN LANGUAGE
Mark Litwak's book "Dealmaking in the Film and Television Industry, 2nd Edition" has been republished in Korea by Easy Books.
Dealmaking is the first self-defense book for everyone working in the film and television industry, addressing a general, non-attorney readership, it is a fascinating, highly accessible and practical guide to current entertainment law peculiarities and "creative" practices. Armed with this book, filmmakers can save themselves thousands of dollars in legal fees as they navigate the entertainment business's shark-infested waters. Whether you are a professional or wannabe producer, writer, director, or actor, this book can help you make the most of your business dealings while steering you clear of contractual traps. The second edition of this popular book contains hundreds of updates and revisions of the first edition and includes two new chapters: Legal Remedies and Retaining Attorneys, Agents, and Managers.
Thursday, October 13, 2005
Tuesday, October 04, 2005
Elizabeth Taylor Wins Lawsuit
Elizabeth Taylor’s Van Gogh painting “Vue de l’Asile et de la Chapelle de Saint Remy” was the subject of a recent suit by the heirs of a prior owner seeking to recover the painting. Margarete Mauthner’s heirs sued Taylor in federal court, 41 years after she purchased the painting from Sotheby’s in 1963. Mauthner owned the painting from 1914 until 1939, when she fled Nazi Germany. Her painting was seized by the Nazis and ended up in Sotheby’s Auction House in London in 1963, which sold it to Taylor.
The heirs claimed that Sotheby’s gave Taylor inconsistent and conflicting information about the history of the picture, which should have alerted Taylor that the validity of the painting’s ownership was in question. This issue was never decided, however, because the Judge dismissed both legal theories the heirs brought forth. The first theory was based on traditional state law based claims for conversion and restitution methods California state law for regaining possession. These claims were barred by the statute of limitations with regards to recovering stolen property, which starts when the purchaser, in this case Taylor, takes possession of the property. She bought the painting in 1963, and therefore the deadline in California to file suit was 1966.
The second theory the heirs relied on was based on the the federal Holocaust Victims Redress Act, the Nazi War Crimes Disclosure Act, and the “findings and declarations of the California legislature.” The Judge reasoned that none of these sources created a basis on which to sue. Courts are reluctant to create a new cause of action Congress has not explicitly created through legislative action. Here, the legislature intended the government to help victims recover their property under current laws.
The heirs claimed that Sotheby’s gave Taylor inconsistent and conflicting information about the history of the picture, which should have alerted Taylor that the validity of the painting’s ownership was in question. This issue was never decided, however, because the Judge dismissed both legal theories the heirs brought forth. The first theory was based on traditional state law based claims for conversion and restitution methods California state law for regaining possession. These claims were barred by the statute of limitations with regards to recovering stolen property, which starts when the purchaser, in this case Taylor, takes possession of the property. She bought the painting in 1963, and therefore the deadline in California to file suit was 1966.
The second theory the heirs relied on was based on the the federal Holocaust Victims Redress Act, the Nazi War Crimes Disclosure Act, and the “findings and declarations of the California legislature.” The Judge reasoned that none of these sources created a basis on which to sue. Courts are reluctant to create a new cause of action Congress has not explicitly created through legislative action. Here, the legislature intended the government to help victims recover their property under current laws.
Wednesday, September 14, 2005
"Screen Door Jesus" Opens in Texas, Holds Hurricane Benefit in Conroe
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
September 14, 2005
"SCREEN DOOR JESUS" OPENS IN TEXAS; HOLDS HURRICANE BENEFIT IN CONROE
On Sept. 28, moviegoers in the Houston area can help the victims of Hurricane Katrina by attending benefit screenings of the film, "Screen Door Jesus" at the Pine Hollow Cinema 6 in Conroe, TX.
The producers of the film, our clients, have pledged all screening proceeds to The Salvation Army and Neighborhood Centers Inc. for their hurricane relief efforts.
"Screen Door Jesus" is distributed by Indican Pictures. It opens Sept. 30 in Houston at the Angelika Theater and the Pine Hollow 6; it opens Oct. 14 at Austin's Regal Arbor Cinema and San Antonio's Regal Fiesta 16. The film is also scheduled to open in Los Angeles and Oklahoma.
Updates and more information are available on the official website.
FANGORIA ANNOUNCES "HUNTER'S MOON"
Congratulations to our client, writer/director Mark Stouffer, who began shooting the horror film, "Hunter's Moon," starring Devon Sawa. This is the first of five genre features for the independent production company. Read more about "Hunter's Moon" on Fangoria.com.
CONGRATULATIONS TO OUR CLIENTS
This week, two clients, Craig Brewer and Amir Mann each began production on their films.
Brewer's "Black Snake Moan," a Paramount Pictures release. The film stars Samuel L. Jackson, Christina Ricci and Justin Timberlake and shoots in Memphis.
Mann's "The Fifth Patient" is being distributed by Shoreline Entertainment. The film stars Nick Chinlund and shoots in Mexico.
Congratulations, Craig and Amir!
September 14, 2005
"SCREEN DOOR JESUS" OPENS IN TEXAS; HOLDS HURRICANE BENEFIT IN CONROE
On Sept. 28, moviegoers in the Houston area can help the victims of Hurricane Katrina by attending benefit screenings of the film, "Screen Door Jesus" at the Pine Hollow Cinema 6 in Conroe, TX.
The producers of the film, our clients, have pledged all screening proceeds to The Salvation Army and Neighborhood Centers Inc. for their hurricane relief efforts.
"Screen Door Jesus" is distributed by Indican Pictures. It opens Sept. 30 in Houston at the Angelika Theater and the Pine Hollow 6; it opens Oct. 14 at Austin's Regal Arbor Cinema and San Antonio's Regal Fiesta 16. The film is also scheduled to open in Los Angeles and Oklahoma.
Updates and more information are available on the official website.
FANGORIA ANNOUNCES "HUNTER'S MOON"
Congratulations to our client, writer/director Mark Stouffer, who began shooting the horror film, "Hunter's Moon," starring Devon Sawa. This is the first of five genre features for the independent production company. Read more about "Hunter's Moon" on Fangoria.com.
CONGRATULATIONS TO OUR CLIENTS
This week, two clients, Craig Brewer and Amir Mann each began production on their films.
Brewer's "Black Snake Moan," a Paramount Pictures release. The film stars Samuel L. Jackson, Christina Ricci and Justin Timberlake and shoots in Memphis.
Mann's "The Fifth Patient" is being distributed by Shoreline Entertainment. The film stars Nick Chinlund and shoots in Mexico.
Congratulations, Craig and Amir!
Monday, July 18, 2005
Florida Supreme Court Shelters "The Perfect Storm"; "Hustle & Flow" Opens This Week
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
July 18, 2005
In this newsletter:
FLORIDA SUPREME COURT SHELTERS "THE PERFECT STORM"
"The Perfect Storm," a Warner Brothers film, was based on a true story about the sinking of a fishing vessel and the resulting deaths of its crew members, two of which were Billy Tyne and Dale Murphy. Tyne and Murphy's survivors brought suit, claiming the film's depiction of their ancestors was a form of commercial misappropriation under Florida's right of publicity statute and also a common law invasion of privacy.
The lower Florida courts dismissed these claims and granted Warner Bros.' motion for summary judgment. However, the survivors appealed and the case went to the Florida Supreme Court. The main question the Court faced was whether the Florida right of publicity statute applied to "The Perfect Storm" and movies similar to it?
The statute calls for a ban on the unauthorized use of a person's name or likeness "for any commercial…purpose." The Court ultimately held that the statute was not applicable to "The Perfect Storm" or other forms of media that "do not directly promote a product or service." Furthermore the Court cautioned that finding the statute applicable to movies, which are protected under the First Amendment, would raise potential constitutional concerns.
Tyne v. Time Warner Entertainment Co., Case No. SC03-1251 (Fla. 2005), available in PDF format.
"HUSTLE & FLOW" PREMIERES JULY 20, OPENS IN 1,500 THEATERS JULY 22
You've got to dream big. In "Hustle & Flow," a Memphis pimp who seeks hip-hop stardom makes the biggest hustle of his life to get a record made.
Paramount Pictures picked up "Hustle & Flow," written and directed by our client, Craig Brewer. The film won the 2005 Sundance Audience Award for its sensational performances by a cast that stars Terrence Dashon Howard, Anthony Anderson, Taryn Manning, Taraji P. Henson, Paula Jai Parker, Elise Neal, DJ Qualls, and Ludacris.
"Hustle & Flow" premieres Wednesday, July 20 in Los Angeles at the ArcLight Cinerama Dome, and opens in theaters on Friday, July 22. The official website is www.hustleandflow.com. Apple.com has an exclusive featurette online at Apple.com.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
July 18, 2005
In this newsletter:
FLORIDA SUPREME COURT SHELTERS "THE PERFECT STORM"
"The Perfect Storm," a Warner Brothers film, was based on a true story about the sinking of a fishing vessel and the resulting deaths of its crew members, two of which were Billy Tyne and Dale Murphy. Tyne and Murphy's survivors brought suit, claiming the film's depiction of their ancestors was a form of commercial misappropriation under Florida's right of publicity statute and also a common law invasion of privacy.
The lower Florida courts dismissed these claims and granted Warner Bros.' motion for summary judgment. However, the survivors appealed and the case went to the Florida Supreme Court. The main question the Court faced was whether the Florida right of publicity statute applied to "The Perfect Storm" and movies similar to it?
The statute calls for a ban on the unauthorized use of a person's name or likeness "for any commercial…purpose." The Court ultimately held that the statute was not applicable to "The Perfect Storm" or other forms of media that "do not directly promote a product or service." Furthermore the Court cautioned that finding the statute applicable to movies, which are protected under the First Amendment, would raise potential constitutional concerns.
Tyne v. Time Warner Entertainment Co., Case No. SC03-1251 (Fla. 2005), available in PDF format.
"HUSTLE & FLOW" PREMIERES JULY 20, OPENS IN 1,500 THEATERS JULY 22
You've got to dream big. In "Hustle & Flow," a Memphis pimp who seeks hip-hop stardom makes the biggest hustle of his life to get a record made.
Paramount Pictures picked up "Hustle & Flow," written and directed by our client, Craig Brewer. The film won the 2005 Sundance Audience Award for its sensational performances by a cast that stars Terrence Dashon Howard, Anthony Anderson, Taryn Manning, Taraji P. Henson, Paula Jai Parker, Elise Neal, DJ Qualls, and Ludacris.
"Hustle & Flow" premieres Wednesday, July 20 in Los Angeles at the ArcLight Cinerama Dome, and opens in theaters on Friday, July 22. The official website is www.hustleandflow.com. Apple.com has an exclusive featurette online at Apple.com.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Friday, July 15, 2005
DreamWorks Prevails; Mark Speaks at VSDA
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
July 15, 2005
In this newsletter:
DREAMWORKS PREVAILS IN "ANTZ" COPYRIGHT INFRINGEMENT CASE
Scriptwriter David Seals-McClellan lost his copyright infringement case against DreamWorks. He claimed the DreamWorks movie "Antz" infringed his script entitled "Eddie the Existential Ant." The Ninth Circuit rejected Seals-McClellan's appeal from a lower court's issuing of summary judgment in favor of DreamWorks.
The two requirements that must be met to show copyright infringement are 1) access by the alleged infringer to the original work and 2) a substantial similarity between the works. Seals-McClellan believed that his script had made its way to DreamWorks via a former Universal employee who had obtained it after Seals-McClellan entered it into a Universal sponsored contest. The Court found this evidence insufficient to meet the access requirement, finding that he had not "shown anything beyond a bare possibility of access."
Because Seals-McClellan could not prove access, he had to show more than a "substantial similarity" between "Antz" and his script. He had the burden of showing the works were "strikingly similar." The Court, after Seals-McClellan's own expert admitted that both works could have been individually created, found that only similar common ideas were used, for which Copyright law does not afford protection.
Seals-McClellan v. DreamWorks, Inc., 120 Fed.Appx. 3, 2004 U.S.App.LEXIS 25426 (9th Cir. 2004).
Click here to download the court memorandum (opens PDF file).
MARK TO SPEAK AT VSDA ON JULY 27
When all's said and done, distribution is usually the hardest part about independent filmmaking. On July 27 at 10:00 a.m., Mark will speak at a seminar called "Getting Your Film Out There: From Production to Festival to Distribution" at VSDA in Las Vegas. Mark will speak about how filmmakers can identify the methods, and strategies, and channels to get their films before an audience.
The seminar is part of VSDA's Filmmaker Program. More information is available at the VDSA website.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
July 15, 2005
In this newsletter:
DREAMWORKS PREVAILS IN "ANTZ" COPYRIGHT INFRINGEMENT CASE
Scriptwriter David Seals-McClellan lost his copyright infringement case against DreamWorks. He claimed the DreamWorks movie "Antz" infringed his script entitled "Eddie the Existential Ant." The Ninth Circuit rejected Seals-McClellan's appeal from a lower court's issuing of summary judgment in favor of DreamWorks.
The two requirements that must be met to show copyright infringement are 1) access by the alleged infringer to the original work and 2) a substantial similarity between the works. Seals-McClellan believed that his script had made its way to DreamWorks via a former Universal employee who had obtained it after Seals-McClellan entered it into a Universal sponsored contest. The Court found this evidence insufficient to meet the access requirement, finding that he had not "shown anything beyond a bare possibility of access."
Because Seals-McClellan could not prove access, he had to show more than a "substantial similarity" between "Antz" and his script. He had the burden of showing the works were "strikingly similar." The Court, after Seals-McClellan's own expert admitted that both works could have been individually created, found that only similar common ideas were used, for which Copyright law does not afford protection.
Seals-McClellan v. DreamWorks, Inc., 120 Fed.Appx. 3, 2004 U.S.App.LEXIS 25426 (9th Cir. 2004).
Click here to download the court memorandum (opens PDF file).
MARK TO SPEAK AT VSDA ON JULY 27
When all's said and done, distribution is usually the hardest part about independent filmmaking. On July 27 at 10:00 a.m., Mark will speak at a seminar called "Getting Your Film Out There: From Production to Festival to Distribution" at VSDA in Las Vegas. Mark will speak about how filmmakers can identify the methods, and strategies, and channels to get their films before an audience.
The seminar is part of VSDA's Filmmaker Program. More information is available at the VDSA website.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Thursday, June 30, 2005
Supremes Rule on Grokster, SAG Indie Announces Changes
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
June 30, 2005
In this newsletter:
SUPREME COURT'S GROKSTER RULING MAY OPEN DOORS TO INCREASED INTELLECTUAL PROPERTY LITIGATION
The United States Supreme Court released its long anticipated decision in the MGM v. Grokster case debating the question of whether companies in the business of creating file-sharing software can be held liable for the infringing acts of their users. The Supreme Court, in a unanimous decision, held that they could, overturning the general "no secondary liability" principle established in the well-known 1984 "Betamax" case.
Justice Souter wrote "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringements by third parties." It is important to note Souter's use of the word "device" rather than of simply saying "software." This holding can technically and broadly be extended to apply to manufacturers of any type of device, including possibly the Ipod, TiVo, Google, etc., that consumers could possibly use to facilitate their own copyright infringing activities.
Where increased litigation is likely to stem from, is how will a company's "intent" be defined and determined by the courts? When does a company intend for its product to be used for the purposes of copyright infringement, and what steps will a company have to take to safely defend itself against such claims? Technology companies and their lawyers will potentially need to employ a wide range of safeguarding tactics, varying from simple disclaimers to more extreme measures like pledging to actively find and prosecute infringing consumers.
Some organizations, such as the Electronic Freedom Foundation (EFF), worry that the ruling will result in harm to American technology companies. American companies will have to spend increased money on safeguards and litigation and possibly hold back on technological innovation, while foreign competitors will not have to sensor their developing technologies for fear of liability. It remains to be seen if such fears will manifest. In the short term, music and entertainment companies will be celebrating the Court's decision as a victory and view the ruling as a step towards the needed increased protection of copyright and other intellectual property rights.
Metro-Gold-Mayer Studios, Inc. v. Grokster, Ltd., S.Ct., 2005 WL 1499402 U.S. 2005.
The complete Supreme Court Opinion can be found here.
SAG ANNOUNCES NEW AND REVISED LOW BUDGET AGREEMENTS
Independent filmmakers are getting good news from SAG. Effective July 1, 2005, SAG's new and revised low budget agreements will make it easier to make films with SAG actors. In addition, the SAG Indie Web site has sample contracts and initial paperwork for the signatory process available for download.
A summary of the new and revised agreements can be found at SAGIndie.org.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
June 30, 2005
In this newsletter:
SUPREME COURT'S GROKSTER RULING MAY OPEN DOORS TO INCREASED INTELLECTUAL PROPERTY LITIGATION
The United States Supreme Court released its long anticipated decision in the MGM v. Grokster case debating the question of whether companies in the business of creating file-sharing software can be held liable for the infringing acts of their users. The Supreme Court, in a unanimous decision, held that they could, overturning the general "no secondary liability" principle established in the well-known 1984 "Betamax" case.
Justice Souter wrote "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringements by third parties." It is important to note Souter's use of the word "device" rather than of simply saying "software." This holding can technically and broadly be extended to apply to manufacturers of any type of device, including possibly the Ipod, TiVo, Google, etc., that consumers could possibly use to facilitate their own copyright infringing activities.
Where increased litigation is likely to stem from, is how will a company's "intent" be defined and determined by the courts? When does a company intend for its product to be used for the purposes of copyright infringement, and what steps will a company have to take to safely defend itself against such claims? Technology companies and their lawyers will potentially need to employ a wide range of safeguarding tactics, varying from simple disclaimers to more extreme measures like pledging to actively find and prosecute infringing consumers.
Some organizations, such as the Electronic Freedom Foundation (EFF), worry that the ruling will result in harm to American technology companies. American companies will have to spend increased money on safeguards and litigation and possibly hold back on technological innovation, while foreign competitors will not have to sensor their developing technologies for fear of liability. It remains to be seen if such fears will manifest. In the short term, music and entertainment companies will be celebrating the Court's decision as a victory and view the ruling as a step towards the needed increased protection of copyright and other intellectual property rights.
Metro-Gold-Mayer Studios, Inc. v. Grokster, Ltd., S.Ct., 2005 WL 1499402 U.S. 2005.
The complete Supreme Court Opinion can be found here.
SAG ANNOUNCES NEW AND REVISED LOW BUDGET AGREEMENTS
Independent filmmakers are getting good news from SAG. Effective July 1, 2005, SAG's new and revised low budget agreements will make it easier to make films with SAG actors. In addition, the SAG Indie Web site has sample contracts and initial paperwork for the signatory process available for download.
A summary of the new and revised agreements can be found at SAGIndie.org.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Wednesday, June 22, 2005
Nevada Supreme Court Overturns State "Son of Sam" Law
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
June 22, 2005
In this newsletter:
NEVADA SUPREME COURT OVERTURNS STATE "SON OF SAM" LAW AS UNCONSTITUTIONAL
The original "Son of Sam" law was enacted in 1977 in New York to ensure that the infamous serial killer David Berkowitz, known as the "Son of Sam," would not profit from any future memoirs he might publish from prison regarding his murders. Several other states, including Nevada, followed New York's lead and implemented their own "Son of Sam" laws, regardless of the fact that the United States Supreme Court struck down New York's law as unconstitutional. Generally, such laws provide that all proceeds that a felon receives from published materials about his offense must be turned over to his victim's family.
Jimmy Lerner is a Nevada felon, convicted for the murder of Mark Slavin. Lerner wrote a book in prison, "You Got Nothing Coming, Notes From a Prison Fish," which describes both his life experiences in prison as well as Slavin's murder. Pursuant to the Nevada "Son of Sam" law, Donna Seres, the victim's sister, sued Lerner for all the profits from his book. The Nevada Supreme Court ruled against Seres and confirmed what the lower courts had held, that the "Son of Sam" law failed to satisfy the strict scrutiny test that the First Amendment required be applied to it, and thus that the law was unconstitutional.
The First Amendment requires that all content-based restrictive legislation must satisfy strict scrutiny. In other words the law must address a compelling state interest and must be narrowly tailored to achieve that interest. While the law did serve Nevada's compelling state interest in "the compensation of crime victims and the prevention of direct profiteering from criminal misconduct," the Nevada Supreme Court held that the law was not narrowly tailored enough to be upheld.
Under the construction of the law, victims would be able to recover profits from felons' works that merely mentioned their crimes but were virtually unrelated to them, such as memoirs about prison life. The Nevada Supreme Court also found that it would be impractical to try and measure what percentage of the profits were aptly related to the crime and thus potentially recoverable by the victim's family. As well, the Nevada Supreme Court found that the law was broad and over-inclusive as it applied to all those who had "committed" a felony rather than only those persons actually "convicted" of such a felony.
Seres v. Lerner, 102 P.3d 91, 2004 Nev.LEXIS 12733 (Nev. 2004).
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
June 22, 2005
In this newsletter:
NEVADA SUPREME COURT OVERTURNS STATE "SON OF SAM" LAW AS UNCONSTITUTIONAL
The original "Son of Sam" law was enacted in 1977 in New York to ensure that the infamous serial killer David Berkowitz, known as the "Son of Sam," would not profit from any future memoirs he might publish from prison regarding his murders. Several other states, including Nevada, followed New York's lead and implemented their own "Son of Sam" laws, regardless of the fact that the United States Supreme Court struck down New York's law as unconstitutional. Generally, such laws provide that all proceeds that a felon receives from published materials about his offense must be turned over to his victim's family.
Jimmy Lerner is a Nevada felon, convicted for the murder of Mark Slavin. Lerner wrote a book in prison, "You Got Nothing Coming, Notes From a Prison Fish," which describes both his life experiences in prison as well as Slavin's murder. Pursuant to the Nevada "Son of Sam" law, Donna Seres, the victim's sister, sued Lerner for all the profits from his book. The Nevada Supreme Court ruled against Seres and confirmed what the lower courts had held, that the "Son of Sam" law failed to satisfy the strict scrutiny test that the First Amendment required be applied to it, and thus that the law was unconstitutional.
The First Amendment requires that all content-based restrictive legislation must satisfy strict scrutiny. In other words the law must address a compelling state interest and must be narrowly tailored to achieve that interest. While the law did serve Nevada's compelling state interest in "the compensation of crime victims and the prevention of direct profiteering from criminal misconduct," the Nevada Supreme Court held that the law was not narrowly tailored enough to be upheld.
Under the construction of the law, victims would be able to recover profits from felons' works that merely mentioned their crimes but were virtually unrelated to them, such as memoirs about prison life. The Nevada Supreme Court also found that it would be impractical to try and measure what percentage of the profits were aptly related to the crime and thus potentially recoverable by the victim's family. As well, the Nevada Supreme Court found that the law was broad and over-inclusive as it applied to all those who had "committed" a felony rather than only those persons actually "convicted" of such a felony.
Seres v. Lerner, 102 P.3d 91, 2004 Nev.LEXIS 12733 (Nev. 2004).
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Tuesday, June 14, 2005
Congress Announces Family Entertainment and Copyright Act of 2005
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
June 14, 2005
In this newsletter:
NEW CONGRESSIONAL AMENDMENT, THE "FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005" WILL IMPACT THE ENTERTAINMENT INDUSTRY
Congress' recent amendments to the Federal Copyright Act will result in three significant changes: authorizing the "sanitization" of movies for private viewing; making the camcording of movies in theatres a federal crime; and allowing certain works vulnerable to copyright infringement special "pre-registration" rights and thus access to previously unavailable statutory remedies.
The Family Movie Act of 2005
This Act arose from the litigation sparked by the development of several family oriented companies that created technology to sanitize violence and sex from films for private home viewing. ClearPlay is one such company. Its sanitization technology consists of software that does not actually alter or reproduce the films, but rather instructs the user's DVD player to fast-forward or mute through sensitive scenes. ClearPlay's competitor, Clean Flicks actually makes an edited copy of the original film.
The new Act will allow for ClearPlay types of sanitation technologies, but not for Clean Flicks' methods. The Act reads that no copyright infringement occurs when "limited portions of audio or video content of a motion picture" are made "imperceptible" for home viewing, but only so long as "no fixed copy of the altered version" is created. Additionally the Act amends the Trademark Act to eliminate any potential liability under Trademark law, so long as viewers are notified that they are watching an altered version of the film.
The Artists' Rights and Theft Prevention Act of 2005 (ART Act)
It's been estimated that the movie industry loses 3.5 billion annually due to hard-goods piracy, one source of which is the camcording of first-run movies in theatres and conversion into DVD's or online downloads. The ART Act notes that in making camcording a federal crime, the Act complements rather than preempts existing state laws. Thus the Act will serve to empower theatre personnel with the authority to detain and question individuals whom they reasonably believe are camcording a movie, and to immunize theatres against potential suits that might arise from the suspect's detention.
Pre-Registration Rights
While registration is not required for copyright protection, it does give registrants valuable statutory remedies such as attorney's fees and statutory damages so long as registration has occurred prior to the infringement. Typically this works well as most works are not vulnerable to infringement prior to their public release. However, Congress has acknowledged that some works are more vulnerable to pre-release infringement and that the Copyright Office may give such works "pre-registration" status. Such status will allow a copyright owner access to statutory remedies even if infringement occurs prior to its public release and actual registration.
Family Entertainment and Copyright Act of 2005, S.167 (109th Cong., 1st Sess. 2005), available at as a PDF file.
"SCREEN DOOR JESUS" SECURES NORTH AMERICAN DISTRIBUTION
Congratulations to our client, Sam Adelman. His film, "Screen Door Jesus" will be distributed domestically by Indican Pictures.
"Screen Door Jesus," a story about the mysterious appearance of an image of Jesus on a screen door, won accolades at the Hamptons and South by Southwest film festivals in 2003.
The Hollywood Reporter has the scoop.
The official movie site is at www.screendoorjesusthemovie.com.
"BRISTOL BOYS" FILMMAKER AWARDED DIGITAL FILMMAKER'S GRANT
Our client, Brandon Cole, received the Panasonic Digital Filmmaker's Grant to shoot his motion picture, "Bristol Boys." Panasonic conducted an interview with Brandon, which is available on Panasonic's website.
MARK IN THE MEDIA
Confused about movie titles? "Slate" magazine has published an article about title confusion and quotes Mark.
SAG Indie has published an in-depth interview with Mark. It's available at www.sagindie.org/spotlight.html.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
June 14, 2005
In this newsletter:
NEW CONGRESSIONAL AMENDMENT, THE "FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005" WILL IMPACT THE ENTERTAINMENT INDUSTRY
Congress' recent amendments to the Federal Copyright Act will result in three significant changes: authorizing the "sanitization" of movies for private viewing; making the camcording of movies in theatres a federal crime; and allowing certain works vulnerable to copyright infringement special "pre-registration" rights and thus access to previously unavailable statutory remedies.
The Family Movie Act of 2005
This Act arose from the litigation sparked by the development of several family oriented companies that created technology to sanitize violence and sex from films for private home viewing. ClearPlay is one such company. Its sanitization technology consists of software that does not actually alter or reproduce the films, but rather instructs the user's DVD player to fast-forward or mute through sensitive scenes. ClearPlay's competitor, Clean Flicks actually makes an edited copy of the original film.
The new Act will allow for ClearPlay types of sanitation technologies, but not for Clean Flicks' methods. The Act reads that no copyright infringement occurs when "limited portions of audio or video content of a motion picture" are made "imperceptible" for home viewing, but only so long as "no fixed copy of the altered version" is created. Additionally the Act amends the Trademark Act to eliminate any potential liability under Trademark law, so long as viewers are notified that they are watching an altered version of the film.
The Artists' Rights and Theft Prevention Act of 2005 (ART Act)
It's been estimated that the movie industry loses 3.5 billion annually due to hard-goods piracy, one source of which is the camcording of first-run movies in theatres and conversion into DVD's or online downloads. The ART Act notes that in making camcording a federal crime, the Act complements rather than preempts existing state laws. Thus the Act will serve to empower theatre personnel with the authority to detain and question individuals whom they reasonably believe are camcording a movie, and to immunize theatres against potential suits that might arise from the suspect's detention.
Pre-Registration Rights
While registration is not required for copyright protection, it does give registrants valuable statutory remedies such as attorney's fees and statutory damages so long as registration has occurred prior to the infringement. Typically this works well as most works are not vulnerable to infringement prior to their public release. However, Congress has acknowledged that some works are more vulnerable to pre-release infringement and that the Copyright Office may give such works "pre-registration" status. Such status will allow a copyright owner access to statutory remedies even if infringement occurs prior to its public release and actual registration.
Family Entertainment and Copyright Act of 2005, S.167 (109th Cong., 1st Sess. 2005), available at as a PDF file.
"SCREEN DOOR JESUS" SECURES NORTH AMERICAN DISTRIBUTION
Congratulations to our client, Sam Adelman. His film, "Screen Door Jesus" will be distributed domestically by Indican Pictures.
"Screen Door Jesus," a story about the mysterious appearance of an image of Jesus on a screen door, won accolades at the Hamptons and South by Southwest film festivals in 2003.
The Hollywood Reporter has the scoop.
The official movie site is at www.screendoorjesusthemovie.com.
"BRISTOL BOYS" FILMMAKER AWARDED DIGITAL FILMMAKER'S GRANT
Our client, Brandon Cole, received the Panasonic Digital Filmmaker's Grant to shoot his motion picture, "Bristol Boys." Panasonic conducted an interview with Brandon, which is available on Panasonic's website.
MARK IN THE MEDIA
Confused about movie titles? "Slate" magazine has published an article about title confusion and quotes Mark.
SAG Indie has published an in-depth interview with Mark. It's available at www.sagindie.org/spotlight.html.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.
Copyright 2005, Mark Litwak
Tuesday, May 24, 2005
Writers Lawsuit Revived, Mark Teaches in Michigan
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
May 24, 2005
In this newsletter:
WRITERS' DISCRIMINATION LAWSUIT REVIVED BY APPEALS COURT
Four years after it was initially filed, a class-action age discrimination lawsuit filed by a group of WGA writers has been revived on appeal and sent back for trial.
In 2001, members of the Writers Guild went to Federal court to claim that they had been systematically discriminated against by television networks, production companies, and talent agencies because they were more than 40 years old. The original case had been dismissed for procedural reasons, without prejudice and with leave to amend.
The writers decided to abandon their Federal lawsuit and rewrite their script, bringing a new suit in the California state courts instead. They claimed that the television networks and production companies’ systematic discrimination against older writers violated the California Fair Employment and Housing Act.
Furthermore, the writers argued that talent agencies were “aiding and abetting” the discrimination by pre-screening writers and not referring older candidates for consideration on projects. The writers claimed that because talent agencies refused to provide services on a wide scale, the agencies violated the California Unruh Civil Rights Act, which protects against discrimination in providing services.
The state lawsuit was dismissed in trial court, however, the writers won a reversal of that decision on appeal.
Justice Paul Boland, writing for the Court of Appeal, wrote that the writers properly alleged “classwide claims” as well as a “pattern and practice” of discrimination against older writers among networks and production companies.
The writers also made proper allegations that talent agencies supposedly knew of the networks and production companies’ discrimination policy against older writers and gave “substantial assistance or encouragement” of the policy by only submitting names of younger writers to projects.
In addition, the writers adequately presented claims of unfair competition against the networks, production companies and talent agencies.
Alch v. Superior Court, 19 Cal.Rptr.3d 29, 2004 Cal.App.LEXIS 1531 (Cal.App. 2004), petition for hearing by the California Supreme Court denied (Dec. 22, 2004).
MARK BRINGS HIS RISKY BUSINESS SEMINAR TO DETROIT
Filmmakers in Michigan wanting to understand film financing and distribution of indie films can now register for Mark’s Oct. 15 seminar at Wayne State University.
The one-day seminar will teach filmmakers how independent films are financed and distributed. Topics covered include forming a production company, raising financing via pre-sales, debt and limited partnerships, negotiating tactics, principal terms of the acquisition/distribution agreement, cross-collaterization and creative accounting.
The seminar is being offered through ArtServe Michigan in partnership with Wayne State University Law School Sports & Entertainment Law Society and the University of Detroit-Mercy Law School Arts, Entertainment & Sports Association.
For more information and to register, click here.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.Copyright 2005, Mark Litwak
May 24, 2005
In this newsletter:
WRITERS' DISCRIMINATION LAWSUIT REVIVED BY APPEALS COURT
Four years after it was initially filed, a class-action age discrimination lawsuit filed by a group of WGA writers has been revived on appeal and sent back for trial.
In 2001, members of the Writers Guild went to Federal court to claim that they had been systematically discriminated against by television networks, production companies, and talent agencies because they were more than 40 years old. The original case had been dismissed for procedural reasons, without prejudice and with leave to amend.
The writers decided to abandon their Federal lawsuit and rewrite their script, bringing a new suit in the California state courts instead. They claimed that the television networks and production companies’ systematic discrimination against older writers violated the California Fair Employment and Housing Act.
Furthermore, the writers argued that talent agencies were “aiding and abetting” the discrimination by pre-screening writers and not referring older candidates for consideration on projects. The writers claimed that because talent agencies refused to provide services on a wide scale, the agencies violated the California Unruh Civil Rights Act, which protects against discrimination in providing services.
The state lawsuit was dismissed in trial court, however, the writers won a reversal of that decision on appeal.
Justice Paul Boland, writing for the Court of Appeal, wrote that the writers properly alleged “classwide claims” as well as a “pattern and practice” of discrimination against older writers among networks and production companies.
The writers also made proper allegations that talent agencies supposedly knew of the networks and production companies’ discrimination policy against older writers and gave “substantial assistance or encouragement” of the policy by only submitting names of younger writers to projects.
In addition, the writers adequately presented claims of unfair competition against the networks, production companies and talent agencies.
Alch v. Superior Court, 19 Cal.Rptr.3d 29, 2004 Cal.App.LEXIS 1531 (Cal.App. 2004), petition for hearing by the California Supreme Court denied (Dec. 22, 2004).
MARK BRINGS HIS RISKY BUSINESS SEMINAR TO DETROIT
Filmmakers in Michigan wanting to understand film financing and distribution of indie films can now register for Mark’s Oct. 15 seminar at Wayne State University.
The one-day seminar will teach filmmakers how independent films are financed and distributed. Topics covered include forming a production company, raising financing via pre-sales, debt and limited partnerships, negotiating tactics, principal terms of the acquisition/distribution agreement, cross-collaterization and creative accounting.
The seminar is being offered through ArtServe Michigan in partnership with Wayne State University Law School Sports & Entertainment Law Society and the University of Detroit-Mercy Law School Arts, Entertainment & Sports Association.
For more information and to register, click here.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.Copyright 2005, Mark Litwak
Thursday, May 12, 2005
Georgia Production Incentives, "Hustle & Flow" on AICN
LEGAL INSIGHTS FOR ENTERTAINMENT AND MULTIMEDIA
May 12, 2005
In this newsletter:
GEORGIA ADOPTS PRODUCTION INCENTIVES
The governor of Georgia has signed the Georgia Entertainment Industry Investment Act.
HB539 enhances Georgia's competitiveness in the entertainment industry. Production companies investing at least $500,000 in services, materials and labor for a project in Georgia will receive a 9% base tax credit applied to their total investment. Companies will receive an additional 3% tax credit for hiring Georgia residents.
An additional 3% incentive is available for filming in an economically disadvantaged county. And for companies that invest in multiple television projects of more than $20 million in the state, there is an additional 2% credit. Additional information available here.
AIN’T IT COOL NEWS DIGS “HUSTLE & FLOW”
Harry Knowles of "Ain't It Cool News" has given a rave review to "Hustle & Flow," written and directed by our client, Craig Brewer.
"Like Tarantino did to the Kung Fu Revenge flick and Edgar Wright Jr did to the Zombie flick - Craig Brewer has done to Blaxploitation, writes Knowles. He gives additional props to the cast, who give a performance that "feels vital and alive and happening right before your eyes."
Read the review here. "Hustle & Flow" comes out this summer. Click here to visit the official website.
COPYRIGHT & DISCLAIMER
Mark Litwak & Associates grants newsletter recipients permission to copy and distribute this newsletter and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.DISCLAIMER: While we are careful in preparing this newsletter, readers should consult with a lawyer before relying on any information. Case law and statutes are subject to change, and may not apply in all jurisdictions.Copyright 2005, Mark Litwak
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