The company behind Surfvivor, a trademark for beach-themed products, sued the creators of the reality television show “Survivor” for trademark infringement. Despite the confusion reported by Surfvivor that some entities had in the marketplace, the Federal District Court granted summary judgment in favor of “Survivor” and dismissed the case. The Court found that the marks were not similar enough to cause consumer confusion.
Surfvivor appealed immediately, but its action did not survive for long. The Court of Appeals affirmed the District Court’s ruling. The Court of Appeal based its opinion on two strands of thought. First, the Court concluded that no actual confusion existed between the two trademarks. If nearly all of the customers and retailers had no confusion, then “customers were not likely to associate the two products or conclude [they] came from the same source.”
Second, the Court reasoned that Surfvivor did not suffer any damages. For example, no merchants stopped doing business with Surfvivor due to any confusion.
Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 2005 U.S.App.LEXIS 7688 (9th Cir. 2005).
Right of Publicity Does Not Cover the Same Subject Matter as Copyright
A model, June Toney, signed a contract for her photo to be used by Ultra Sheen Supreme Shampoo. The contract ended in November 2005, but Ultra Sheen continued to use Toney’s photo. Toney brought suit under an Illinois right of publicity statute.
The Federal District Court dismissed her suit based on a section of the Federal Copyright Act that preempts state law claims if the subject matter is covered under the Copyright Act itself. The Court of Appeals affirmed the dismissal.
But Toney was not through. She petitioned the Court of Appeals for a rehearing and the Court reversed its previous ruling. The Court reasoned that the Illinois statute protects a person’s “identity,” while the Copyright Act applies to creative works that are fixed in a tangible medium. The Court wrote, “Toney’s identity is not fixed in a tangible medium of expression.” The subject matter was not the same, and therefore not covered under the Copyright Act.
Furthermore, the Court found another distinction. The Illinois statute protects the right to control the commercial value of a person’s identity. The Copyright Act, in contrast, protects the right to reproduce and perform works.
The case was remanded to the District Court to proceed on the right of publicity claim.
Toney v. L’Oreal USA, Inc., 406 F.3d 905, 2005 U.S.App.LEXIS 7897 (7th Cir. 2005).
Wednesday, November 30, 2005
Friday, November 18, 2005
“Wife Swap” Producer May Proceed with Copyright Infringement Claim Against “Trading Spouses”
RDF Media produced a reality television show called “Wife Swap” that was aired on ABC in May 2004. Shortly after its airing, Fox Broadcasting ran a similar show called “Trading Spouses.” RDF brought suit based on two claims: copyright and trade dress infringement. Fox filed a motion to dismiss all of RDF’s claims.
In response to Fox’s motion, the Federal District Court Judge dismissed RDF’s trade dress claim because a television show itself could not be a trademark. The Court reasoned, “Trademark is concerned with the protection of symbols or elements; it does not protect the content of a creative work of artistic expression as a trademark for itself.”
RDG’s copyright claim withstood Fox’s motion to dismiss. RDF had filed the complaint before all of its episodes had been registered with the Copyright Office. The Court concluded that because the errant registrations were filed by the time the motion was heard no basis existed for dismissing the copyright claim.
RDF Media Limited v. Fox Broadcasting Company, 372 F. Supp.2d 556, 2005 U.S.Dist.LEXIS 12923 (C.D.Cal. 2005).
San Francisco’s Film Art’s Foundation to offer Self Defense Seminar December 10
Writers, directors, and producers must understand their legal rights and how to defend themselves against exploitation by production and distribution companies. In this intensive seminar, filmmakers learn how to anticipate problems before they arise in negotiations and create incentives that encourage companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an un-resolvable dispute, participants learn what remedies are available to enforce their rights.
Mark Litwak is a veteran entertainment attorney with offices in Beverly Hills, California. He writes a monthly syndicated column that appears on the Film Arts Web site as "The Litwak Files," and is the author of six books, including Reel Power, The Struggle for Influence and Success in the New Hollywood, Courtroom Crusaders, Dealmaking in the Film and Television Industry (winner of the 1995 Krazna-Krausz Book Award), Contracts for the Film and Television Industry, and Risky Business. He is the author of the popular CD-ROM program Movie Magic Contracts. In addition, Litwak is a producer's rep, assisting filmmakers in the financing, marketing and distribution of their films.
Self-Defense for Independent Filmmakers: Protecting Your Legal Rights
Sat Dec 10th from 9:00 AM to 5:00 PM
$95/Filmmaker-level members; $145/others.
Film Arts Foundation
145 9th Street, #101
San Francisco, CA, 94103
Call (415) 552-8760 to sign up or for questions or email education@filmarts.org
In response to Fox’s motion, the Federal District Court Judge dismissed RDF’s trade dress claim because a television show itself could not be a trademark. The Court reasoned, “Trademark is concerned with the protection of symbols or elements; it does not protect the content of a creative work of artistic expression as a trademark for itself.”
RDG’s copyright claim withstood Fox’s motion to dismiss. RDF had filed the complaint before all of its episodes had been registered with the Copyright Office. The Court concluded that because the errant registrations were filed by the time the motion was heard no basis existed for dismissing the copyright claim.
RDF Media Limited v. Fox Broadcasting Company, 372 F. Supp.2d 556, 2005 U.S.Dist.LEXIS 12923 (C.D.Cal. 2005).
San Francisco’s Film Art’s Foundation to offer Self Defense Seminar December 10
Writers, directors, and producers must understand their legal rights and how to defend themselves against exploitation by production and distribution companies. In this intensive seminar, filmmakers learn how to anticipate problems before they arise in negotiations and create incentives that encourage companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an un-resolvable dispute, participants learn what remedies are available to enforce their rights.
Mark Litwak is a veteran entertainment attorney with offices in Beverly Hills, California. He writes a monthly syndicated column that appears on the Film Arts Web site as "The Litwak Files," and is the author of six books, including Reel Power, The Struggle for Influence and Success in the New Hollywood, Courtroom Crusaders, Dealmaking in the Film and Television Industry (winner of the 1995 Krazna-Krausz Book Award), Contracts for the Film and Television Industry, and Risky Business. He is the author of the popular CD-ROM program Movie Magic Contracts. In addition, Litwak is a producer's rep, assisting filmmakers in the financing, marketing and distribution of their films.
Self-Defense for Independent Filmmakers: Protecting Your Legal Rights
Sat Dec 10th from 9:00 AM to 5:00 PM
$95/Filmmaker-level members; $145/others.
Film Arts Foundation
145 9th Street, #101
San Francisco, CA, 94103
Call (415) 552-8760 to sign up or for questions or email education@filmarts.org
Monday, November 07, 2005
NALIP AND SAN JUAN CINEMAFEST SPONSOR FREE PANELS ON PITCHING, FINANCING AND DISTRIBUTING FILMS
The Puerto Rico chapter of the National Association of Latino Independent Producers Association (NALIP), in conjunction with the San Juan Cinemafest and the Puerto Rico Film Corporation, will sponsor a full day of free panels on feature film pitching, finance, and distribution for indie filmmakers, beginning at 10 a.m. on Thursday, November 10, at the Normandie Hotel in San Juan, according to Frances Lausell, president of NALIP-PR.
Participants will include NALIP Executive Director and independent producer Kathryn Galán, veteran entertainment attorney and producers’ representative Mark Litwak, long-time personal manager and award-winning producer Marilyn Atlas, financing executive Pamela Peak, and Venevisión International Film and Theater Division Manager Julio Noriega.
Kathryn Galán has established NALIP as the preeminent national Latino media organization in the U.S., dedicated to increasing the quality and quantity of Latino/a film, television and documentary projects by supporting Latino/a writers, producers, directors and creative talent and advocating on their behalf. NALIP runs regional programs plus four national Signature programs: the Latino Writers Lab™ held in New York each spring and Santa Monica, California each fall; the intensive 10-day Latino Producers Academy™ held in Tucson, Arizona each summer; a national Conference that welcomes over 600 makers and funders each spring, and the Latino Media Resource Guide™, the go-to source for information on Latino directors, writers, producers, craftspersons, funders, diversity opportunities, distributors, and film programs.
Mark Litwak’s entertainment law practice includes work in the areas of copyright, trademark, contract, multimedia law, intellectual property, and book publishing (“Dealmaking in the Film and Television Industry,” “Risky Business: Financing and Distribution of Independent Film”). As a producers’ rep, Litwak assists filmmakers in the marketing and distribution of their films through such renowned film festivals as Cannes, Toronto, Telluride, and others. At this year’s Sundance Film Festival, three of his clients had films acquired for distribution: HUSTLE & FLOW, which won the Audience Award (Paramount), THE MATADOR (Miramax), and MARILYN HOTCHKISS BALLROOM DANCING AND CHARM SCHOOL (Goldwyn).
Equally at home in the worlds of film, television, and live theater, Marilyn Atlas is a founding member of Women in Film’s Luminas Committee, which supports the portrayal of women in non-stereotypical roles in film and television, and is committed to finding projects that reflect diversity and non-stereotypical characters. Among her credits as a film producer are REAL WOMEN HAVE CURVES for HBO, which won the Audience Award at the Sundance Film Festival, A CERTAIN DESIRE, starring Sam Waterston, and ECHOES, which won the Gold Award at the Texas International Film Festival.
Julio Noriega heads up the film and theatrical division for Venevisión International, which over the past 30 years has been one of the most important providers of Spanish language programming for Latin America and the world, positioning its productions in more than 20 languages and currently reaching 97% of the entire U.S. Latino population, thanks to its association with Univisión Communications.
“NALIP-PR’s mission is to help develop and expand Puerto Rico’s film industry and film community,” said Lausell. “By organizing activities such as this one, we hope to provide an opportunity for local filmmakers to obtain practical information directly from working professionals in the industry, as well as a giving them a chance to network and establish contacts which could prove of great value in the future.”
Contact: Frances Lausell
Phone: 787-268-0063
Cell Phone: 787-640-5290
E-mail: isladigital@aol.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. We have a limited number of these books for sale at $25 plus shipping. Call (310) 859 9595 if you would like to purchase one.
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.
Participants will include NALIP Executive Director and independent producer Kathryn Galán, veteran entertainment attorney and producers’ representative Mark Litwak, long-time personal manager and award-winning producer Marilyn Atlas, financing executive Pamela Peak, and Venevisión International Film and Theater Division Manager Julio Noriega.
Kathryn Galán has established NALIP as the preeminent national Latino media organization in the U.S., dedicated to increasing the quality and quantity of Latino/a film, television and documentary projects by supporting Latino/a writers, producers, directors and creative talent and advocating on their behalf. NALIP runs regional programs plus four national Signature programs: the Latino Writers Lab™ held in New York each spring and Santa Monica, California each fall; the intensive 10-day Latino Producers Academy™ held in Tucson, Arizona each summer; a national Conference that welcomes over 600 makers and funders each spring, and the Latino Media Resource Guide™, the go-to source for information on Latino directors, writers, producers, craftspersons, funders, diversity opportunities, distributors, and film programs.
Mark Litwak’s entertainment law practice includes work in the areas of copyright, trademark, contract, multimedia law, intellectual property, and book publishing (“Dealmaking in the Film and Television Industry,” “Risky Business: Financing and Distribution of Independent Film”). As a producers’ rep, Litwak assists filmmakers in the marketing and distribution of their films through such renowned film festivals as Cannes, Toronto, Telluride, and others. At this year’s Sundance Film Festival, three of his clients had films acquired for distribution: HUSTLE & FLOW, which won the Audience Award (Paramount), THE MATADOR (Miramax), and MARILYN HOTCHKISS BALLROOM DANCING AND CHARM SCHOOL (Goldwyn).
Equally at home in the worlds of film, television, and live theater, Marilyn Atlas is a founding member of Women in Film’s Luminas Committee, which supports the portrayal of women in non-stereotypical roles in film and television, and is committed to finding projects that reflect diversity and non-stereotypical characters. Among her credits as a film producer are REAL WOMEN HAVE CURVES for HBO, which won the Audience Award at the Sundance Film Festival, A CERTAIN DESIRE, starring Sam Waterston, and ECHOES, which won the Gold Award at the Texas International Film Festival.
Julio Noriega heads up the film and theatrical division for Venevisión International, which over the past 30 years has been one of the most important providers of Spanish language programming for Latin America and the world, positioning its productions in more than 20 languages and currently reaching 97% of the entire U.S. Latino population, thanks to its association with Univisión Communications.
“NALIP-PR’s mission is to help develop and expand Puerto Rico’s film industry and film community,” said Lausell. “By organizing activities such as this one, we hope to provide an opportunity for local filmmakers to obtain practical information directly from working professionals in the industry, as well as a giving them a chance to network and establish contacts which could prove of great value in the future.”
Contact: Frances Lausell
Phone: 787-268-0063
Cell Phone: 787-640-5290
E-mail: isladigital@aol.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. We have a limited number of these books for sale at $25 plus shipping. Call (310) 859 9595 if you would like to purchase one.
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.
Wednesday, October 26, 2005
Suit Brought against WGA
Writer-director William Richert has sued the Writers Guild of America West in Los Angeles Superior Court over its practice of collecting foreign levies for writers who aren't WGA members. Richert claims that the WGA has been accepting foreign collections in 1991 on monies due copyright holders such as taxes on video rentals and purchases of blank videocassettes.
The suit alleges that the WGA has no authority to collect the funds for non-members, hasn't communicated that information to the affected writers and hasn't paid them.
Richert is seeking class-action status for the suit. WGA West president Daniel Petrie Jr. told Daily Variety that the guild's authority to collect the funds for non-members stems from the initial agreements it struck in the late 1980s with the collection agencies.
According to Daily Variety, the WGA currently has $19 million in foreign levies in its accounts and another $4 million of undeliverable funds from the levies.
Hampton’s Film Festival Award Winner
Congratulations to our clients’ producers Jon Stern and Ben Odell and writer/director Stefan C. Shafer whose film, Confess, premiered at the Hampton’s Film Festival in New York October 21. Confess won the Zicherman Family Foundation Award for Best Screenplay.
Risky Business Seminar at UCLA Oct. 29-30
Mark will present his "Risky Business: Financing & Distributing Independent Films" seminar at at UCLA on Oct. 29-30. Those who attend this comprehensive two-day seminar will learn how independent films are financed and distributed. Topics include organizing your company, raising financing via pre-sales, debt and limited partnerships, negotiating tactics, principal terms of the acquisition/distribution agreement, cross-collateralization and creative accounting. Particular attention is paid to how producers and filmmakers can protect their interests by watering down warranties, getting added to the E& O policy, using lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses.
Women in Film Summit October 29- November 1.
Women in Film & Television International Summit October 29 to November 1, 2005.
Mark will speak at the 9 AM panel on Intellectual Property and Copyright issues at WIF Summit. Women In Film Los Angeles will host the 2005 The Summit provides a forum for filmmakers from all over the world to network, greet old friends and forge new relationships. There will be four days of panels, lunches, cocktail parties, screenings and special events with all activities being held at the Park Hyatt Hotel on Avenue of the Stars in Century City.
Women In Film & Television International (WIFTI) is a global network comprised of some 36 Women In Film Chapters worldwide and over 10,000 members dedicated to advancing professional development and achievement for women working in all areas of film, video, and other screen based media.
Additional info at: http://www.wif.org/info_page.cfm?id=18
The suit alleges that the WGA has no authority to collect the funds for non-members, hasn't communicated that information to the affected writers and hasn't paid them.
Richert is seeking class-action status for the suit. WGA West president Daniel Petrie Jr. told Daily Variety that the guild's authority to collect the funds for non-members stems from the initial agreements it struck in the late 1980s with the collection agencies.
According to Daily Variety, the WGA currently has $19 million in foreign levies in its accounts and another $4 million of undeliverable funds from the levies.
Hampton’s Film Festival Award Winner
Congratulations to our clients’ producers Jon Stern and Ben Odell and writer/director Stefan C. Shafer whose film, Confess, premiered at the Hampton’s Film Festival in New York October 21. Confess won the Zicherman Family Foundation Award for Best Screenplay.
Risky Business Seminar at UCLA Oct. 29-30
Mark will present his "Risky Business: Financing & Distributing Independent Films" seminar at at UCLA on Oct. 29-30. Those who attend this comprehensive two-day seminar will learn how independent films are financed and distributed. Topics include organizing your company, raising financing via pre-sales, debt and limited partnerships, negotiating tactics, principal terms of the acquisition/distribution agreement, cross-collateralization and creative accounting. Particular attention is paid to how producers and filmmakers can protect their interests by watering down warranties, getting added to the E& O policy, using lab access letter to retain possession of the negative, and utilizing termination and arbitration clauses.
Women in Film Summit October 29- November 1.
Women in Film & Television International Summit October 29 to November 1, 2005.
Mark will speak at the 9 AM panel on Intellectual Property and Copyright issues at WIF Summit. Women In Film Los Angeles will host the 2005 The Summit provides a forum for filmmakers from all over the world to network, greet old friends and forge new relationships. There will be four days of panels, lunches, cocktail parties, screenings and special events with all activities being held at the Park Hyatt Hotel on Avenue of the Stars in Century City.
Women In Film & Television International (WIFTI) is a global network comprised of some 36 Women In Film Chapters worldwide and over 10,000 members dedicated to advancing professional development and achievement for women working in all areas of film, video, and other screen based media.
Additional info at: http://www.wif.org/info_page.cfm?id=18
Thursday, October 13, 2005
Confess to premiere at the Hampton's Festival
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.
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.
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
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