Monthly Archives: May 2010

Asked & Answered: My Film’s been infringed. What now?

Q: Around 1966 I and some partners formed an independent film company and made what many consider to be one of the best horror films ever made.   I was the Production Manager, and played a major role in the picture.  Many concerns consider the film to be in Public Domain, market products, and rip us off. These concerns use our likenesses, dialogue, excerpted film clips, and title without our consent, permission, or monetary compensation.

How do we stop them? Would an appeal to President Obama asking him to resolve our copyright issue once and for all be an exercise in futility?

A: .Contacting the President might make you feel better, but will probably  not result in any meaningful change to the situation, or more importantly to the law(s) that govern situations like this.

Your situation implicates many different legal principles, and really requires a detailed investigation into the facts and law applicable to your potential claims.

Generally speaking, though,  copyright protection for films made after 1966 is still in effect.  Unless the producers did something very foolish, it's unlikely the film is in the public domain.  So, assuming copyright protection remains in force, it's really a matter of determining whether the offending activity amounts to copyright infringement.  Of course, only the owner of the copyright can assert claims relating to the copyright.  So, if your company has transferred ownership, then the transferee holds the key to enforcement of the rights.

Copyright infringement is the unauthorized copying, distribution, performance/display or making of derivative works based on the original work.  Marketing of products is unlikely to be considered copyright infringement unless it actually involves a COPY of the film, or a portion thereof.  Using quotes from a film may be a  “fair use” (protected by the First Amendment guarantee of free speech) if the taking is relatively small, and has minimal impact on the market for the original film.  For example a T-shirt with a 4- or 5-word quote from the movie is likely NOT a copyright infringement.    Similarly, short film clips, may be considered fair use.  (the complete analysis of the four fair-use factors is too lengthy to address here)

Use of likenesses of performers in a film may violate those performers' “Right of Publicity”, which, in California, for example, prohibits the unauthorized COMMERCIAL use of a person's name or likeness.  The trouble is, not all states recognize such rights, and those that do, each handle things differently.  Moreover, the measure of damages (the amount of money you can collect) may not make pursuing the case worthwhile for the performer or her lawyer to take on.  Litigation, after all, is a costly pursuit.

Finally, the protection afforded by the law to film titles is very limited.  Unless the title is also registered as a trademark,  there's little that can be done to stop others from adopting that title (or variations thereof) for products, merchandise, services and even, in some cases, other films.

So,  the best advice I can offer is that you consult an attorney familiar with your State's laws to investigate the situation(s) that arise, and to research the law before offering you custom-tailored legal advice.

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 https://firemark.com/minicourse

Entertainment Law Update Podcast – Episode 11: Hot News!

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In this Episode:

  • Ethics and the non-practicing attorney… a long tail
  • Zorro draws its sword against M&M candies
  • “Free Scooter!” cries Justin Bieber.
  • Dramatic vs. Non-Dramatic rights in musical works
  • Ride-along producer : Ride-along defendant?
  • Bryant v. Media Right, Orchard
  • Arista v. Lime Group
  • Hot News Misappropriation
Play

GET CLE CREDIT for this episode. Continue Reading

Asked & Answered: Video/Film/recording performances of plays.

Q: I work in educational theater. Every year we revisit the same topic: Filming performances. I keep telling the director and others that it is simply not legal to record a performance. The response I always hear is that they never sell the film. They are only making an “archival copy” which is given to the cast. I know it's illegal. I know it's specifically banned in the contract that the director signs. I've heard rumors of schools getting busted with huge fines, because clips showed up on You Tube. But I have no proof. What are the potential penalties? Are people schools really getting sued? Help me convince these people that they should stop.

A: It's irrelevant whether they sell the film.  They're making and distributing copies of a derivative work of the play.  That's copyright infringement.  It doesn't matter if money changes hands.  It's NOT “archival” (which isn't permitted anyway, under most licenses from play publishers).

The penalties for violations of these rules can exceed $150,000 per infringment, and each copy of the offending product can be considered an infringement.  So, with a cast of 10, each receiving a copy, you're talking about as much as $1.5 Million dollars. (that's enough to put most school districts in a serious bind).

Schools and nonprofit organizations are sued ALL THE TIME over this kind of thing.  They usually settle, so there's little media coverage… but it is happening. It's not just because videos wind up on the web….The major play publishers have ‘spies' everywhere, and they're reporting violations all the time.

Bottom line:  It's illegal,  it's a breach of the license agreement, and can be very costly.  Also, once a play publisher catches you, they will put you on their blacklist, and never authorize another production again.

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 https://firemark.com/minicourse

Proposed “reform” bill puts investor financing at risk.

Legislation  presented by U.S. Senate Banking Committee chairman, Chris Dodd is working its way through the legislative process.  The proposed “Restoring American Financial Stability Act of 2009”  could make it significantly harder for film producers to utilize some of the most common investor-financing models to fund the budgets of their films. The bill is viewed… Continue Reading

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