SOPA Dope: Where Does Online Piracy Reform Go From Here?

Call us with your feedback:
(310) 243-6231

In this Episode:

• Political campaigns raise the ire of copyright holders and newscasters
• A Canadian Lawyer’s perspectives
• MegaUpload
• Golan v. Holder  ruling
• Helicopters in video games… need a license?
• and more

GET CLE CREDIT for this episode.

Entertainment Law Update is brought to you by Clio, the best way to manage your practice online. Clio allows you to manage your matters, clients, time, bills, trust accounts and more all through a a secure, easy-to-use, web-based interface. For a free 30-day trial and 25% off your first 6 months of Clio, sign up at www.goclio.com and enter promotional code [ENTLAW]” Or, just visit http://entertainmentlawupdate.com/clio

Show Notes

Hosts:

Gordon P. Firemark
Website:   http://firemark http://theatrelawyer.com,
Twitter: @gfiremark

Tamera Bennett

Website:   http://createprotect.com
Twitter: @tamerabennett

 

Bob Tarantino
Blog: http://www.entertainmentmedialawsignal.com/
email:  BTarantino@heenan.ca

Bob Tarantino

Bob Tarantino is a partner in the Entertainment Law group at Heenan Blaikie LLP and focuses his practice on the interface between entertainment and intellectual property law. Bob has been recognized as one of Canada’s leading lawyers in the area of entertainment law in the 2010, 2011, and 2012 editions of The Best Lawyers in Canada (Woodward/White).  In 2010 he launched Heenan Blaikie’s Entertainment & Media Law Signal, a collaborative blog by members of the firm’s Entertainment Law group, which was recognized as a co-winner of the Best New Law Blog in the 2010 Canadian Law Blog Awards.

 

 

NEWT GINGRICH CAMPAIGN’S MUSIC COPYRIGHT ISSUES

Newt Gingrich’s campaign makes the news twice in a week for claims of copyright infringement of a song.   Rude Music Inc., owned by Frank Sullivan, a co-author of the song “Eye of the Tiger,” filed a copyright infringement lawsuit in federal district court in Chicago for Gingrich’s use of the song on the campaign trail.

CANADIAN COPYRIGHT LAW APPROACH TO SIMILAR SCENARIO

The Newt Gingrich Campaign has been using the song, “How You Like Me Now” at campaign events. Third Side Music, a Montreal Record Label that controls the rights to the song sent Gingrich’s team a cease and desist order.

In the US, using a song at the public event requires securing a valid public performance license from ASCAP, BMI, or SESAC. Beyond that, an artist does not have the ability to restrict the use of their song at a political event.

In Canada, the Canadian Copyright Act gives authors moral rights.

The author of a work has the right to the “integrity” of the work which is ingringed if the work is, to the “prejudice of the honor or reputation of the author, distorted, mutilated or otherwise modified; or used in association with a product, service, cause or institution (Section 14.1, Section 28.2).”

Thus, here, the use of the song in association with a cause (the campaign) prejudices the honor or reputation of the author and infringes his moral rights.

Third Side Music is the Canadian music publisher that controls the rights to the song.
Bob’s blog post at Entertainment Media Signal: http://www.entertainmentmedialawsignal.com/2012/01/articles/music/canadian-copyright-and-campaigns-moral-rights-edition/#.TyYIdrXVzI8.twitter

MITT ROMNEY/NBC

NBC’s lawyers have asked Romney to take out any reference to the network’s journalism in any other ads as well, but the campaign said it believes it falls under the fair-use doctrine and was reluctant to take the ad off.

Megaupload Drops Lawsuit Against Universal Music Group

THR-Esq: http://www.hollywoodreporter.com/thr-esq/megaupload-universal-music-group-lawsuit-dropped-283767
Wired.com: http://www.wired.com/threatlevel/2011/12/youtube-universal-megaupload/
THR-Esq: http://www.hollywoodreporter.com/thr-esq/megaupload-founder-kim-dotcom-arrest-bail-sopa-284551

 

GOLAN V. HOLDER – SUPREME COURT RULING

THREsq: http://www.hollywoodreporter.com/thr-esq/supreme-court-ruling-foreign-copyright-laws-282931

The Supreme Court has handed down a long awaited decision. In a 6-2 decision, the Supreme Court held that Congress had the right to enter into the Uruguay Round Agreement which was an international treaty that allowed foreign rights-holders to claim copyright protection on some works that were previously in the public domain.

EA Invokes First Amendment For Video Games

Kotaku: http://kotaku.com/5874076/ea-invokes-first-amendment-protection-for-video-games-in-trademark-dispute-with-helicopter-maker
THR Esq: http://www.hollywoodreporter.com/thr-esq/battlefield-helicopters-video-games-280148
Gamasutra: http://www.gamasutra.com/view/news/39540/EA_claims_free_speech_in_legal_dispute_over_helicopter_usage_in_Battlefield_3.php

Video game juggernaut Electronic Arts has filed suit against defense conglomerate Textron in California court.  At issue is EA’s right to depict three of Textron’s helicopters in the video game military simulation Battlefield 3.  Textron was allegedly threatening their own suit over trade dress infringement and dilution claims, which prompted the pre-emptive action by Electronic Arts.  EA is seeking a declaratory judgment allowing them to depict the three aircraft (the AH-1Z Viper, the UH-1Y transport helicopter, and the V-22 Osprey) on Fair Use and First Amendment grounds.

Compare: Use of “fictional car brands” in video games.  http://www.giantbomb.com/fictional-car-brands/92-5156/

Velvet Underground Sues Andy Warhol Foundation Over Famous Banana Album Cover

THREsq: http://www.hollywoodreporter.com/thr-esq/velvet-underground-andy-warhol-bananas-280603

UK Judge Orders Accused Copyright Pirate Extradited to US

THREsq: http://www.hollywoodreporter.com/thr-esq/tvshack-richard-odwyer-copyright-pirate-281455

Richard O’Dwyer, a 23-year old British resident has been ordered for extradition to the United States to face charges of copyright infringement for running a website that links to free films and tv shows.  Mr. O’Dwyer made thousands of British Pounds in advertising on the site.

The UK judge ruled that although the UK authorities are declining to litigate, the US authorities still have a right to try Mr. O’Dwyer in their jurisdiction.

Just How Egregiously Must a Trademark Plaintiff Act Before a Court Awards Attorneys’ Fees to the Defendant?–1-800 Contacts v. Lens.com

Technology & Marketing Law Blog: http://blog.ericgoldman.org/archives/2012/01/its_really_hard.htm
Link to case: http://www.scribd.com/doc/78568762/1-800-Contacts-v-Lens-com-Denial-of-Attorneys-Fees

Section 1117 of the Lanham Act allows for recovery of attorneys’ fees in “exceptional” cases of trademark infringement.  On such case is 1-800 Contacts v. Lens.com. 1-800 Contacts sued their competitor in the Central District of Utah for infringement by competitive keyword advertising.

Kim Kardashian v. The Gap:

Yahoo: http://tv.yahoo.com/news/prepare-for-the-fight–the-gap-vs–kim-kardashian.html
Complaint: http://law.justia.com/cases/federal/district-courts/california/cacdce/2:2011cv05960/507477/1/

A while back, Kim Kardashian filed suit against the Gap, the clothing retail giant which is the parent company of Old Navy, for using a supposed ‘Kim Kardashian look-a-like in one of the Old Navy commercials. Kardashian sued for $20 million claiming that the commercial “created confusion in the marketplace and violated her rights to her name and likeness.”

Now, The Gap is fighting back, arguing that Kardashian’s reputation was not actually damaged by the commercial.

Batmobile Design IS protectable by copyright.  Not a “Useful Article”

Last year, DC Comics, a subsidiary of Warner Bros., sued Mark Towles, who operated a business called “Gotham Garage,” which sold imitation batmobiles. DC, accused Towles of violating its copyright and trademark and confusing the public into thinking that his cars were authorized products.

U.S. District Judge Ronald Lew, rejected Towles’ argument that a BatMobile is a useful article, not protected by copyright.

http://feedproxy.google.com/~r/THREsquire/~3/qchZSWToIFw/dark-knight-rises-batmobile-justin%20bieber-286212

BATMOBILE CASE:  Order denying Defense Motion to Dismiss

So my question is as follows: If I tell his story in a screenplay with the properly written legal permission from my friend who is the protagonist of the story, do I need to worry about the network claiming rights on the script because they told the story before me as a news story?

Here’s my answer:

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.


Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse

My Answer:

Image via Wikipedia

When Spiderman:Turn Off The Dark’s original writer/director ,Julie Taymor, sued the show’s producers late in 2011, nobody was particularly surprised. Ms. Taymor’s lawsuit alleged numerous counts, including the obvious breaches of contract, and the not-so-obvious copyright infringement claims. That suit seeks millions in unpaid fees and royalties allegedly due Taymor, and an order enjoining the producers from using Taymor’s material in any subsequent productions, tours, or other derivatives based on the collossally expensive broadway musical she co-authored with U2′s Bono and The Edge. Observers found little to raise eyebrows about in Taymor’s lawsuit, and have been waiting since November to hear the producers’ side of the story.

Well, the other day, that story came out. The producers have responded to Taymor’s suit with explosive allegations that the academy-award nominated and Tony winning director-bookwriter fundamentally failed to render the services she was hired to perform, instead advancing a story line and overall ‘feel’ of the show that stood contrary to what producers repeatedly requested, and audiences seemingly wanted. With the show in often-extended previews, it was obvious that major changes would be needed. But, the producers indicate, Taymor resisted, arguing against paying attention to audience response. The producers lay the blame for the beleaguered show’s cost overruns, cast and crew injuries, and poor critical response squarely on Ms. Taymor’s shoulders.

At times, the counterclaim reads like a comic book storyline in its own right. The producers cast themselves in the role of the show’s saviors who “engaged in superhuman efforts to save the Musical,” including investing many additional millions of dollars in the show, snatching victory from the jaws of defeat.

The counterclaims contend that due to “the delays and increased expense due to Taymor’s actions,” the producers had to replace her “in order for the show to survive, and for it to continue to provide jobs to the cast and crew and allow investors to recoup their investment.” Following those changes, they say, the Spider-Man Musical is now a hit. “The show is a success despite Taymor, not because of her.”

Well, obviously, this case is one we’ll be watching closely. If it goes that far, the trial will be an enlightening look behind the scenes into the development, financing and production of this, the most expensive Broadway musical ever produced. The drama in the courtroom is likely to be better than the spectacle playing nightly at the Foxwoods Theatre.

Peter Kaufman

My good friend Peter Kaufman has a new piece on his blog Deal Fatigue about the broken distribution windows system, and how/whether it needs repair. read his piece here

If you’re a filmmaker, its time to consider that the old model of staggered releases across various media is on the way out.

photo via flickr (bschmove) under Creative Commons License

I am often consulted by film and stage producers who tell me they’re ready to start work on raising the financing for their films/ plays/ musicals, or what-have-you, but often as not,  as we get to work, it becomes clear that they’re not as ready as they think. Before going out to investors, it’s important to have your ducks in a row.

Knowing the following six things before you start raising money will dramatically streamline the process, and get you closer to funding, faster.

1. Know your product.

What is a producer’s product? Well, it seems obvious, right? A film/show about X, Y and Z. But is it really? Well, at this point, you’re talking about maybe someday making a film about X, Y, and Z… but that’s not a product (yet)… it’s a dream. Right now… while you’re “in development” your product is an investment opportunity.  Now, of course you’ve got to have a script, a crew, cast and a plan… and you’d better know who’s going to come see the thing and why.

2. Know your customer(s):

So, who’s your customer? At first blush, you might revert to thinking about your audience, and obviously, you DO need to know where your audience is and how you’ll eventually sell them a ticket… but again, right now, you’re selling a dream. That opportunity mentioned above. Who’s going to buy that?

If you answered “Investors”… your partially correct. But, if that’s all you said, you’ve got a lot of work ahead of you. What does the ideal investor look like to you? What is his or her name, age, job, marital status? Do they have kids? Do they travel? Where? How Often?  Where do they congregate?  How will you meet this person?

It’s incumbent on you, the producer, to  answer the question, Why would this person invest in your project? What motivates him or her? What would be the most persuasive thing you can say or do to get him or her on board?

3. Know your budget.

It’s amazing to me that people think they’re ready to go around asking people for money for their projects before they even have a clear picture of how much they’ll need, and where that money is going to go. The job of producing is essentially the job of managing the finances of a project. Leaving aside the fact that you need this information to prepare the legal documents… you need this information for your own internal purposes. Too often producers figure, I’ll do my project with whatever funds I can raise… but haven’t got a real plan. Would you invest YOUR hard-earned cash in someone who says “I don’t know” to the question “How much do you need?”

4. Know your market.

Now we’re talking about how you’re going to sell your project, and to whom. What will the market bear? What ticket price is the “sweet spot”. Will distributors buy this project for distribution? Will they pay sufficient money to make the project financially feasible?  Will audiences like it?  Will they PAY to see it?  Will they TRAVEL to see it?  Why?  Why not?

5. Know the rules.

Too many filmmakers jump the fundraising gun and post notices on facebook, twitter, or their websites saying “we’re now looking for $1 Million” to produce this film/show.”   Guess what… game over! Most film/theatre projects are financed through a ‘limited’ or ‘private’ offering’ exemption from the otherwise expensive and time consuming securities registration requirements. Under these exemptions, advertising the offering is NOT allowed. Other restrictions address WHOM you may approach, and what information you must provide.

If you haven’t studied these rules, and figured out how you’re going to comply with them, consult an entertainment attorney or securities lawyer who handles this kind of thing. Doing it yourself is a recipe for disaster.

6. Know what you’re really offering, and how you’re going to sell it.

Sure, in #1, we talked about your product, but is that really what you’re offering/selling? Investment opportunities abound for folks with money. So, what is it really that you’re offering? You’re selling not just an opportunity to invest in any old business… You’re selling the chance to be a part of a film, play, musical or whatever.  Maybe even to have a credit as an executive producer, or just a “special thanks” mention.  Regardless, you’re selling a fantasy… a dream. Do you know how you’re going to do that?

Once you’re armed with this knowledge, you’ll be ready to get started developing your financing plan (more about this in a future post), and you’ll be ready to start work with your entertainment lawyer to pull the paperwork together.

Related articles

• Best Investment for 2012; The Pop/Rock Band, Cutting Edge (prweb.com)

I’m a believer in setting ambitious, but achievable goals or my own success, and in helping my clients, colleagues, friends and family achieve theirs.

Whether you’re starting something new, or building on past achievements, it’ll be my honor and privilege to help you move your career, business, and life forward.

Although my practice is focused largely on transactions in entertainment (theatre, film, television) intellectual property, and business law, I’m well connected to attorneys in other practice areas, and other professionals, so I hope you will think of me as a resource for all of your legal and business needs. I’m always glad to share my relationships and make referrals.

Please give me a call whenever I can be of service.

Happy New Year.

Call us with your feedback:
(310) 243-6231

In this Episode:

• “Santa Claus Is Coming to town” Copyright termination
• 9th Circuit upholds DMCA Safe Harbor for VEOH
• Our Top Ten Stories of 2011
• Predictions for 2012

GET CLE CREDIT for this episode.

Entertainment Law Update is brought to you by Clio, the best way to manage your practice online. Clio allows you to manage your matters, clients, time, bills, trust accounts and more all through a a secure, easy-to-use, web-based interface. For a free 30-day trial and 25% off your first 6 months of Clio, sign up at www.goclio.com and enter promotional code [ENTLAW]” Or, just visit http://entertainmentlawupdate.com/clio

Show Notes

Hosts:

Gordon P. Firemark
Website: http://firemark http://theatrelawyer.com,
Twitter: @gfiremark

Tamera Bennett

Website: http://createprotect.com
Twitter: @tamerabennett

I was quoted today on ESPN.com in an article about the legacy of great sports figures, and whether Joe Paterno, as a result of the recent scandal involving Jerry Sandusky, has lost the opportunity to capitalize on the value of his name, likeness, endorsements, etc.  The questions directed at me concerned the Vince Lombardi play that ran in New York last year.  Here’s a link to the story.