Entertainment Law outline

 K law
 Tort law
 IP Law
 Employment and Labor Law
 Corporate law
 Special economic considerations and business practices
 Unique considerations for entertainment contracts
o Artistic Control
o Credit/billing
o Industry specific compensation
o Particular requirements of conveying and protecting IP in the entertainment field
o Unique remedies
o Other unique industry practices
 Dignitary torts
o Defamation
o Invasion of privacy
o False light
o Misappropriation of publicity
o Involve right to privacy and right to publicity
 Branches of the entertainment industry
o Motion pictures
o Theater
o TV
o Music
o Videogames
o Publishing
 Economic fxs of the entertainment industry
o Production
o Distribution
o Retailing
Nature of Entertainment Law and Transaction Ideas
 Joseph Burstyn Inc. v. Wilson (1952)
o NY revoked license for being sacreleigious
o Distributor argued that NY sacreleigious laws were in constitutional violation of
free speech and freedom of the press
o Expression by means of motion pictures is included within the free speech and
free press guaranty of the first and fourteenth amendments
 Zacchini v. Scripps Howard Broadcasting Co. (1977) (rights of publicity)
o Whether 1A and 14A immunized the reporter from damages for its alleged
infringement of petitioner’s state law right of publicity
o Neither the public nor the newscaster will be deprived of the benefit of
petitioner’s performance as long as his commercial stake in his act is
appropriately recognized
o Press is not privileged in 1A or 14A
Implied Contracts
 Compensation
o Was payment expected?
o Did the recipient of the idea accept K by accepting idea as consideration?
 Relationship of the parties
o Are they active in the entertainment business as professionals?
o Do they have a relationship?
o Did something happen b/w them to create an implied K
 Specificity
o Was the idea shared specific
o Courts consider importance of novelty differently
 Idea does not always have to be novel to have implied K
 Economics
o Can the person who contributed the idea still use the idea separately and make
money?
o Was the use substantially similar to the original idea?
 Are both parties active in the entertainment business as professionals?
o Do they have a relationship – an event needs to have occurred that created the
implied contract.
 Is it a specific idea?
o Note that courts differ on whether novelty required.
 Was the idea so that the person who contributed the idea cannot separately use the idea
and make $?
o Includes whether the use was substantially similar to original idea?
 Ways to protect media companies against idea theft claims
o Avoid forming implied K
 Return unsolicitied ideas unopened
 Only work through agents attorneys or other known parties
o Use express K instead
 Submission releases
 Clearly define obligations/ conditions
 Arbitration clauses
 Protecting Creators
o Write everything down
o Registration of treatment or script with Writers Guild of America (low cost, easy)
o Keep detailed records of meetings and phone calls (think Desny)
o Follow-up in-person meetings with written summaries (email)
o Self-emailing, mailing, etc
 Desny v. Wilder (1956)
o Screenwriter has idea for movie calls producer
o Assistant answers phone
o Writer gives synopsis over phone
o Producer took idea and produced movie and hired new writer
o Writer was told if producer used idea would be compensated
o No property interest in ideas, but there may be an implied K
 Blaustein v. Burton (1970)
o Writer conveyed an idea before it was disclosed to the proposed producer
 o Issue of novelty
o After voluntary communication to others human ideas becomes free
o K implied in fact
 Meeting of the minds
o K does not need to be novel to be the subject of contract protection
o Conveyance of an idea can constitute valuable consideration and can be bargained
for before it is disclosed to the proposed purchaser, but once it is conveyed
(disclosed to him) it is henceforth its own and he may work with it and use it as he
sees fit
o Producer and the writer should be free to make any K they desire to make with
reference to the buying of ideas of the writer
o Implied in fact contract in favor of producer
 Writer and producer knew each other
 Already a producer
 Wasn’t unsolicited
 Faris v. Enberg (1979)
o Expectation of compensation
o Implied in fact K
 He prepared the work
 Disclosed the work to the offeree for sale
 Under all circumstances attending disclosure it can be concluded that
offeree voluntarily accepted the disclosure knowing the conditions on
which it was tendered
 Reasonable value of work
o No trialble issue of fact for implied in fact K
o No evidence that P expected or indicated his expectation of receiving
compensation for the service
 Baer v. Chase (2004)
o Is compensation an essential term of a K?
o There cannot be an implied in fact contract if there is an express contract that
covers the same subject matter
o K with no price can still be enforceable if the parties specify a practicable method
by which they can determine the amount
o K must be sufficiently definite so that the performance to be rendered by each
party can be ascertained with reasonable certainty
o K uninforceble for vagueness
 When its terms are too indefinite to allow a court to determine with
reasonable certainty what each party has promised to do
o No K that is distinct and definitive enough to be enforceable
Copyright
 Original works of authorship fixed in any tangible medium of expression, now known or
later developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device. Including
o Literary works
o Musical works; including accompanying words
o Dramatic works including accompanying music
 o Pantomimes and choreographic works
o Pictoral, graphic, and sculptural works
o Motion pictures and other audiovisual works
o Sound recordings
o Architectural works
o Compilations, collective works, and Derivative works
 Does not protect ideas, procedures, processes systems, methods of operation, concept,
principle or discovery, regardless of the form in which it is described, explained or
illustrated, or embodied in such work
 Not protectable until it is fixed in some medium
 Exclusive rights
o Reproduction
 making copies
o Adaptation
 preparing a derivative work
 Transformation or adaptation of one or more preexisting works
 The copyright in a derivative work extends only to the original
contribution of its author
 Author of derivative work
 Does not acquire any interest in any separate copyright protecting
the underlying work
 Generally, requires permission from the owner of the underlying
work
o Distribution
 making the work available to the public through sale, transfer of
ownership, rental, lease, lending; payment not required
o Public Performance
 must be “public,” does not matter if $ charged; includes on-demand video
streaming
o Public Display
 but if someone has a lawful copy of a work, they can display it publicly
o Digital Audio Transmission
 sound recording only
o Owners may transfer or license copyright
 any of these rights on an exclusive or non-exclusive basis.
 Each exclusive right is separable, allowing the copyright owner to exercise
or otherwise retain certain rights, and also to transfer or license other
rights
 Works becomes copyrightable the moment it is put in a tangible form
 Copyright lasts life of author +70 years
 Work for hire
o 95 years from publication or 120 years from creation whichever is shorter
o statutory termination rights do not exist for works made for hire
o The employer is considered the author if an employee creates a work in the scope
of her employment.
 o If the work is specially ordered or commissioned, the commissioning party is
considered the author as long as
 (a) it is one of nine types of works in the statute) AND
 (b) the parties agree in a signed writing that the work is work made for
hire
o only in the US
o as a contribution to a collective work
o as a part of a motion picrure or other audiovisual work
o ***
 Legal Framework
o Article I, Section 8, of the US Constitution:
 empowers Congress to provide authors with certain exclusive rights in
their writings for a limited time •
o Federal Copyright Act of 1976 (current law in use)
 As of January 1, 1978
 Replaced Copyright Act of 1909
o US Copyright Office
 Regulates and administers copyrights under Copyright Act
o State Law Preemption
 Limited exceptions, including sound recordings made before February 15,
1972
o International Protection
 US copyrights protected in many foreign jurisdictions under international
copyright treaties, including Berne Convention
 Statutory termination rights
o Authors (and family members for deceased authors) have the right to terminate
copyright transfers and licenses under certain conditions.
o Termination rights vary based on several factors, including:
 Whether the grant was made before or after January 1, 1978.
 For grants made before January 1, 1978, when the copyright was first
secured.
o The termination must comply with the requirements of the Copyright Act
 including giving at least 2 years (and no more than 10 years) notice
o Statutory termination rights do not exist for works made for hire.
 Statutory exceptions to copyright
o Fair Use (affirmative defense to infringement)
 Purpose and character of use
 Transformative use
 Nature of copyrighted work
 Factual report in is given less copyright protection than worls of
fiction
 This factor is more likely to weigh against a finding of fair use for
fiction than nonfiction works
 Amount and substantiality of the portion used in relation to the entire work
 Considered from both qualitative and quantitative perspective
 No bright line rule
  Effect of the use on the potential market for the work
 Direct market harm from use at issue
 Harms that might result from potential similar infringing uses
 The market purportedly being harmed must be one that the
copyright owner intends to enter (or has entered) and has a right to
control
o First Sale Doctrine (limits distribution and public display rights)
o Archival Reproductions and Distributions
o Statutory and Compulsory Licenses
Copyright infringement
 Direct infringement
o copyright owner must show:
 Ownership of a valid copyright in the work
 The defendant copied the work.
 Direct evidence of copying - OR
 Evidence that
o The defendant had access to the copyrighted work AND
o The defendant’s work is substantially similar to the
protected elements of the copyrighted work.
 Indirect infringement
o Vicarious infringement
 defendant has a controlling relationship with the direct infringer and
benefitted financially from the infringement.
o Contributory infringement
 defendant induced, caused or materially contributed to infringement by
another party.
 Infringement defenses
o Challenge plaintiff’s copyright validity or ownership
o Defendant did not copy
o Fair Use or other statutory exception
 (first sale doctrine; archival reproductions and distributions)
o Innocent infringement
 17 USC 504(c): …. In a case where the infringer sustains the burden of
proving, and the court finds, that such infringer was not aware and had no
reason to believe that his or her acts constituted an infringement of
copyright, the court in its discretion may reduce the award of statutory
damages to a sum of not less than $200.
 Copyright remedies
o 502: Injunctions
o 503: Impounding Infringing Articles
o 504: Damages and Profits
 (b): Actual Damages and Profits
 = owners actual damages and any additional profits of the infringer
 (c): Statutory Damages
 (1) $750 to $30,000
 (2) Up to $150,000 if willful
 o 505: Costs and Attorney’s Fees
o 506: Criminal Offenses
 (a)(1)(A)& (B) Willful reproduction or distribution of works with retail
value exceeding $1,000 in 180-day period
 (a)(1)(c): Online distribution of pre-release works (including movies still
in theaters)
o 507: Statutes of Limitations
 (a) Criminal: 5 years
 (b) Civil: 3 years
 collective work
o a work, such as a periodical issue, anthology, or encyclopedia, in which a number
of contributions, constituting separate and independent works in themselves, are
assembled into a collective whole.
 Work of joint authorship
o The copyright in a jointly authored work is initially owned jointly by its authors.
o Unless the authors agree otherwise in writing, they own their interests equally.
o A work is a joint work if
 It is created by 2 or more authors AND
 The contributions of the authors are inseparable or interdependent parts of
a single work (e.g. the lyrics and music of a song) AND
 The authors intend that their contributions be merged into a single work
o Joint ownership
 Initially in the work’s creation (Joint Authorship)
 By voluntary or involuntary transfer of an undivided partial interests or
undivided interests to more than one transferee
 If a renewal or termination right vests in more than one owner
 Each owner has an undivided interest in the jointly owned rights.
 Each owner has the right to exploit the rights WITHOUT permission from
the other owners.
 Each owner has a duty to pay to the other owners their shares of profits
from any exploitation of the work.
 Each owner can transfer its own interest in the copyright and grant
licenses in the copyright without the permission of other joint owners
generally – although the owners can agree otherwise in writing.
 Nichols v. Universal Pictures Co. (1930)
o Ideas v. Expression
 Character, sequence of incident, plot
o D took no more than the law allowed
o Stories and main themes are different for both
o Characters and prototypes were similar
o Similarities not protectable
o Novelty is not essential to copyright
o No monopoly on background
 Sheldon v. Metro-Goldwyn Pictures Corp. (1936)
o Law allows D to take those general themes, motives, or ideas in which there could
be no copyright
 o Can borrow general patterns
o Must keep clear of its expression
o Substantial parts were lifted from the play even though most of the movie scenes
were not from the play
o Picture wasn’t infringement on the play short of taking the dialogue
o Injunction
 Zambito v. Paramount pictures (1985)
o P’s remaining claims fall within the category of unprotectable scenes a faire
 Scenes that are mandatory of common to genre
o Two movies failed substantial similarity test
 Twenthith Century Fox Film Corp. v. MCA Inc (1983)
o Battlestar Galactica v. Starwars
o Idea or expression
o Only if no genuine issue of material fact exists will the moving party be entitled
to prevail as a matter of law
 In the News
o Blurred lines, stairway to heaven, Ariana grande
 Ringgold v. Black Entertainment Television Inc. (1997)
o Fair use defense
o De minimis
 A technical violation of a right so trivial that the law will not impose legal
consequences
o Probative similarity
 The fact that the infringing work copies something from the copyrighted
work
o Substantial similarity
 Copying is quantitatively and qualitatively sufficient to support the legal
conclusion that infringement has occurred
o Not de minimis copying
o De minimis threshold for actionable copying of protected expression has been
crossed
o Both qualitatively and quantitatively exceeded de minimus standard
 Poster visable for 26-27 seconds
 Longer than acceptable
 Leigh v. Warner Brothers Inc. (2000)
o Novel cover compared to film intro footage
o Indirect copying
o Substantial similarity
 Protected elements only
o Elements of artistic craft protected by P’s copyright
 Lighting
 Camera angle
 Shading
o Elements of artistic craft are protected by P’s Copyright
 Copyright notice not required for works after March 1, 1989
o Still provides substantial benefits
  May eliminate an innocent infringement defense
 Notifies public
 Could deter infringement
 Mechanism for locating the copyright owner for permission for reuse
 Registration
o Required if want to receive statutory damages
o Not required for federal copyright protection
o Deposit with Library of congress required for all published works
 Who Owns the Copyright
o Generally, the author of a work is copyright owner
o The author of the work is general the creator of the work
o Except under work made for hire doctrine
o Copyright office will not register works produced by nature, animals, or plants
(monkey selfie)
 Fair use, Scope of K Rights Agents and Managers
o Best practices
 1: Employing Copyrighted Material as the Object of Social, Political or
Cultural Critique
 2: Quoting Copyrighted Works of Popular Culture to Illustrate an
Argument of Point
 3: Capturing Copyrighted Media Content in the Process of Filming
Something Else
 4: Using Copyrighted Material in a Historical Sequence
o Clearance
 Process of assuring you have the right to include third-party materials in
your production
 whether through licensing, other permission or fair use
 copyright and non-copyright issues
o scope of contractually acquired rights
 Boosey and Hawkes Music Publishers limited v. Walk Disney CO. (1998)
 Did the rights granted include right to use music in home video
release
 …the nonexclusive, irrevocable right, license, privilege and
authority to record in “any manner, medium or form for use in a
motion picture” and to license the performance of, the musical
composition ...
 Type of use:
o music of said musical composition may be used in one
motion picture throughout the length thereof or through
such portion or portions thereof as the Purchaser shall
desire
 ASCAP condition
 “Right to record in any manner medium or form” is broad enough
to include distribution of the motion picture in video format
 if K is more reasonably read to convey one meaning, the party
benefitted by the reading should be able to rely on it
  Random house inc. v. Rosetta Books LLC (2002)
 Random House: Exclusive right to publish, print and sell the
copyrighted works “in book form”
 Whether licneses Random house holds to exclusive publication of
these books extends to ebooks
 Requires fact finding regarding the evolving technical process and
uses of ebooks and the reasonable expectations of K parties
cognizant of the customs practices usages and terminaology as
generally understood in the tradeor business at time of K
 Balance of hardships tips in appelle’s favor
 Dsitrcit court did not abuse discretion in denying Random house’s
motion for a preliminary injunction
 Popovitch v. Sony music inc
 Cannot manufacture internet downloads therefore did not require
sony music logo when putting them out
 Citizen Cane
 Need right to use screen play and in what medium can the film
made from the screenplay be distributed
 American Graffiti case
 Song was licensed for film
 Did it include home video
 Yes it did include new mediums such as home video
o Agents and Managers
 Agent
 Advises, counsels, directs careers and procures employment
 Procuring employment
o distinguishes agents from managers
 Negotiate and package deals
 Everyone needs one; no one starting out can get one
 Scripts and projects must be represented to get in front of a studio
or network
 Licensed as talent agency (CA) or employment agency (NY) in
some states
 Strict regulation in CA (contract review, fee schedule, record
keeping)
 Limited to 10% commission by law (NY) or agreement (CA)
 CA: Labor Commissioner must approve schedule of fees (usually
up to 20%); SAG-AFTRA agreement limits to 10%
 manager
 Advises, counsels, directs careers
o daily management to career development planning
 Vaguely defined role, but very important in the industry
 Overseeing careers
o (e.g. making sure the artist arrives on time to work)
 Overseeing lives
 o (e.g. making sure the artist stays off drugs)
 Fees unregulated: charges what the market will tolerate
o percentage of artist’s gross earnings in entertainment
 Cannot procure employment
 Finds other advisers (agent, business/financial manager)
 Wachs v. Curry (1993)
 CALIFORNIA LABOR CODE SECTION 1700.4
 (a)"Talent agency" means a person or corporation who engages in
the occupation of procuring, offering, promising, or attempting to
procure employment or engagements for an artist or artists,
 except that the activities of procuring, offering, or promising to
procure recording contracts for an artist or artists shall not of itself
subject a person or corporation to regulation and licensing under
this chapter.
 Talent agencies may, in addition, counsel or direct artists in the
development of their professional careers.
 There is a rational basis for the recording K exception
 Term “occupation of procuring employment” is not so patently
vague and ho wholly devoid of objective that it provides no
standard at all
 Manager can earn nothing if violated the Act
 California Talent Agencies Act applies to managers if they are
procuring employment
 Yoo v. Robi (2005)
 Wolf procured employment for Robi
 Labor commissioner has authority to void manager-talent K for
unlawful procurement but also has discretion to apply doctrine of
severability to practically enforce K
 Court could sever clause of K if so desired, but not required
 Spokesperson passes on the client’s desires or demands to the
person who is contemplating engaging the client
 Could not collect on any commissions done for Robi
 Marathon entertainment Inc. v. Blasi (2008)
 Individual act of procurement can cause the manager to be an
unlicensed talent agent
 Wil-Helm Agency v. Lynn (1981)
 Agents owe a duty to artist to represent them competently
 Duty owed to artist
 Injuries to artist
 Lawyers
 Package deals through relationships,
 shop talent and creative material,
 advise on financial matters,
 recommend individuals/ businesses for assistance,
 protect the client’s financial interest
  May play a different role than is customary in other law practices
 Bill hourly or contingency or flat fee or percentage of
earnings/financing/budget or retainer
 Consider potential conflicts of interest
 Unique considerations
o Overlapping functions
 Agents managers attorneys
 Marketing
 Networking
 Making deals
 Advising on financial terms
 Unions
o Unions negotiate minimum basic agreements with studios and producers:
 minimum scale wages
 acceptable working conditions
 creative rights
 credits
o Signatories
 producers who are “signatory companies”
 (i.e. have assigned a collective bargaining agreement with a union)
o Members
 actors,
 writers,
 directors, etc.
o Size of production budget determines fees
o WGA: multi-step arbitration process regarding credits. Why?
o Who is bound by guild agreements?
 Easy for producer to become signatory:
 signs letter of adherence and related paperwork.
 Once a signatory, then the producer can hire union members.
 There is a catch though:
 once a signatory, a producer generally can only hire union
members.
 Signatory producers may require hires to become members of the union as
a condition of employment.
 Unions have different rules for their members (actors, writers, etc.)
 Contracts with minors
o Coogan Laws
 Provides for trust account for minor with % of her earnings
 Provides minimum working conditions, permit requirements
 Income earned by minor is minor’s property
 Minors can disaffirm K
 With judicial ratification of minor’s K the minor cannot disaffirm
 Under common law minors can disaffirm K
 With judicial ratification of minor’s K minor cannot disaffirm
o Scott Eden Management v. Kavovit
 Child cannot use infancy doctrine as a “sword”
 Should only be used to shield child
 Child cannot reap benefit of the work and then back out of it
o Berg v. traylor
 Allowed to disaffirm K
 Dissafirmance of an agreement by a minor foes not terminate the
contractual obligation of the parent who also signed the agreement
 Defamation
o Elements of Claim:
 A False Statement about another
 Published to a third party
 That harms the reputation of the person or brings that person into disrepute
 With fault of at least negligence (if public official: intentional or reckless
disregard for truth)
o NY Times standard: public figures and public officials
 Actual malice
 Publication of false statement with knowledge that it was false or
with reckless disregard as to whether or not it was false
 Public officials
 Non-public persons who are involved in the resolution of
important public questions or can shape society as a whole
 Government employees who have substantial responsibility for or
control over the conduct of government affairs
o Libel:
 False statement is in print
o Slander:
 False statement is oral
o Huckabee v. Time Warner Entertainment Co (2000)
 Defamation case brought by judge
 HBO negated actual malice as a matter of law
 Judge did not raise a genuine issue of material fact on any of his categories
 Mere evidence of pressure to produce stories from a particular
viewpoint is no evidence of actual malice
 No evidence that HBO chose the material with actual malice
 HBO’s omission did not grossly distort the story
 Error in judgment not actual malice
 Difficulty applying YT standard in context of functionalized story
o Davis v. Costa-Gavras (1987)
 Libel case brought by public figure
 Film docudrama
 Actual malice is not the same as ill will
 Actual malice
 Publication of a statement with knowledge that it was false or with
reckless disregard of whether or not it was false
 Publication of a statement with knowledge that it was false or with
reckless disregard of whether it was false or not.
  “Based upon” a true story disclaimer
 First Amendment
o Pippen v. NBC Universal Media (2013)
 Defamation per se
 (actionable without proof of injury)
 defamation per quod
 (must prove injury)
 Defamation and false light/public figure
 (actual malice required)
 Very hard to establish defamation, especially for a public figure
 Parody and Satire
o Hustler Magazine v. Falwell (1988)
 Parody
 The style of an individual or work is closely imitated for comic
effect or to ridicule
 Standard for defamation with respect to parody
 Can it be reasonably interpreted as stating actual facts about the
individual
 If no reasonable person would take the statements as actual facts
then they cannot impair someone’s good name
 public figures and public officials may not recover for the tort of
intentional infliction of emotional distress by reason of publications
without showing in addition that the publication contains false statements
of fact which were made with actual malice
o Farah v. Esquire Magazine (2013)
 Defamation
 P must prove subject of a false and defamatory statement
 The statement was published to a third party
 That publishing the statement was at least negligent
 P suffered either actual or legal harm
 Defamatory if
 It tends to lower P in his trade, profession r community standing or
to lower him in the estimation of the community
 Test for satire
 Could a hypothetical reasonable reader be misled
 Can it be reasonably interpreted as stating actual facts about an
individual
 Satire is protected by the first amendment
 Long established art form using wit to comment on society
 Dignitary Torts
o Right of privacy
 Common law and/or statutory
 Purely personal right
 Cannot be transferred
o Intrusion
  Prying or intrusion
 Offensive or objetionable to a reasonable person
 Into a place that is private or intended to be private
 Intrusion upon P’s seclusion of solitary or personal affairs
 Protection of private affairs
o Disclosure
 A public disclosure
 Of private facts
 That would be offensive and objectionable to a reasonable person and
 That is not of legitimate public concern
 Objectively embarrassing
o False light
 Publicity
 That places a person in a false light in the public eye
 That would be objectionable to a reasonable person
 Needs to be proof that D published the material with knowledge of its
falsity or reckless disregard as to the truth
o misappropriation
 D’s use of P’s identity
 Appropriation of P’s name or likeness was to D’s advantage,
commercially or otherwise
 Unauthorized use or lack of consent and
 Resulting injury
 This type of privacy right developed into publicity right
o Time inc. v. Hill (1967)
 Whether Life magazine was denied constitutional protections of speech
and press by application of NY courts to award damages on allegations
that Life falsely reported that a new play portrayed an experience suffered
by appellee and his family
 liability if
 Life published article “not to disseminate news, but was using P’s
names in connection with fictionalized episode as to P’s
relationship to play and book
o Fictionalized- altered or changed the true facts concerning
P’s relationship to book so that the article, as published,
constituted substantially fiction or a fictionalized version
 And that the article was published to advertise the play for trade
purposes
 Punitive damages if
 Jury found appellant falsely connected appellee to play knowingly
or through failure to make a reasonable investigation
 reckless or wanton disregard
o Leopold v. Levin (1970)
 Criminal sued for film based on story of his crime
 P did not have a legally protected right to privacy for notorious and
publicized criminal conduct
  Fictionalized aspects of the book and motion picture were reasonably
comparable to, or conceivable from facts of record from which they were
drawn, or minor in offensiveness which viewed in light of such facts
o Polydorors v. Twentieth Century Fox Film Corp. (1997)
 Sandlot case
 Invasion of privacy claims have been rejected by the courts when there is
merely alleged to be some resemblance between actual person and a
character in a work of fiction
 Cannot be misappropriation of name if without that specific name, the suit
would not have been brought because no other resemblance between P and
character
 Fictional film does not invade P’s privacy
 Marked differences in characters, locale and activities, so movie was not
about P
 Popular entertainment subject to same constitutional protection as political
ideas
 Appellant cannot state a claim that respondents invaded his privacy by
appropriating his name or likeness for commercial purposes
o Gene Simmons
 Producer involved sued for misappropriation of likeness
 Consent does not need to be in writing can be implied from conduct
o Fleet v. CBS inc. 1996
 Misappropriation of likeness claim
 Distribution of performance in a motion picture
 Claim preempted by copyright act because individual performances were
copyrightable
 Once appellant’s performances were put on film they become dramatic
works fixed in a tangible medium of expression
 A right is equivalent to rights within the exclusive province of copyright
when it is infringed by the mere act of reproducing, performing,
distributing or displaying the work at issue
 Rights of Publicity
o Law’s recognition of the property right inherent in the commercial value of a
person’s identity
o First recognized under that name in 1953
o 19 states by statute; 28 states by common law (some overlap)
o New York: only by statute
o California: both common law and statute
o Elements:
 D used P’s name, image, identity, etc.
 Appropriation was to the D’s advantage, either commercially or otherwise
 Lack of consent by P
 Resulting injury
 Plus for CA statute
 D’s knowing use of P’s publicity rights
  a direct connection between the alleged use and the commercial
purpose
o Property right (publicity) vs. privacy (personal) right:
 Most jurisdictions (including CA) view as a property right that is
transferable and usually descendible
 A few jurisdictions (including NY) view only as privacy right
 Harm to personal dignity, not property and not descendible
 Damages based (in part) on emotional harm, but also on value
o Protected Attributes
 Name
 Likeness
 Voice/ sound-alikes
 Identity
 Cheers robot case: right of publicity includes the reaction of the
public to the name/ likeness, which endows the name/lines with
commercially exploitable opportunities
 Characters vs. physical likeness of actors
 Virtually all jurisdictions say ANY person
 Cases tend to involve celebrities
 Damages less for average people
o Transferability of publicity rights
 Most jx including CA view as a property right that is transferable and
usually descendible
 Som jxz including NY view only as a privacy right
 Personal harm so not descendible
 Marilyn Monroe Estate case
 At time of death, Monroe did not have any post mortem right of publicity
bc domiciled in NY any publicity right she had during her lifetime were
extinguished by her death by operation of law
o How to avoid privacy and publicity claims
 Lawsuits can hold up distribution of entertainment products
 Common practice in entertainment industry is to obtain rights to depict a
living person in an entertainment production
 Area release
 Appearance release
 Life story rights agreement
 Grant of name and likeness in services agreement
 Must get consent
o Downing v. Abercrombie and Fitch
 Lanham act
 Likelihood of confusion with respect to endorsement
 1A and publicity claims
 must have permission from copyright holder and people in
photograph
 Lanham act
  found consumer would believe that people in photos were
endorsing Abercrombie
 no cause of action for publication of matters in the public interest – right
of public to know and the press to tell it
 Abercrombie catalog was commercial
 State right of publicity claim not preempted by federal copyright law
because persona foes not fall within the subject matter of copyright – a
human likeness is not copyrightable- name and likeness is not a work of
authorship
Credits compensation and control
 Entertainment Contracts; Film Production
o Negotiated Areas for Talent Contracts
 Credit
 SAG negotiates minimum credits for actors; actors can then, but
contract, negotiate for size and placement
 WGA determines credit for WGA writers and WGA arbitrates
when several writers contribute to a final movie
 Tamarind Lithography workshop v. Sanders 1983
o 1969 agreement
o 1969 production
o 1970 screening
o 1973 trial
o 1973 settlement:
 Sanders entitled to screen credit entitled “A Film by
Terry Sanders.”
o Suit for declaratory relief/cross-complaints (including
specific performance)
o 1977 trial – Jury $25,000 damages
o Appeal re: denial of request for specific performance
o Remedy of specific performance requires
 Inadequacy of legal remedy
 Underlying K that is both reasonable and supported
by adequate consideration
 Existence of mutuality of remedies
 K terms which are sufficiently definite to enable the
court to know what it is to enforce
 Substantial similarity of the requested performance
to that promised in the K
o Damages not adequate remedy for breach of credit
obligation
o Importance of credits in the entertainment industry
determine later compensation and **
o Contract was reasonable and supported by adequate
consideration
o Appellant is entitled to damages and injunctive relief
 King v Innovation Books
 o 1978 Assignment Agreement
o 1999 Transfer of Rights
o Possessory credit and Based upon credit
o Based upon credit is proper here
o Possessor credit/ based upon credit
o possessory credit and “based upon” credit (standard similar
to copyright infringement – qualitative and quantitative)
 Compensation
 Guaranteed/Fixed
o must be paid according to schedule in contract
 Deferred
o paid on happening of specified event
 Contingent (back end compensation)
o participation in net profits or gross profits (“back end”
revenue)
 gross receipts
o Total revenue reported to the profit participant often
includes:
 Theatrical revenue
 Nontheatrical (small-venue screens)
 Pay television
 Network television
 Television syndication
 Home video or Ancillary Rights
 (music publishing, sound track recordings,
merchandising, interactive game rights,
novelizations)
 net profits or net proceeds
o Gross Receipts less
o Distribution fees
o Distribution expenses
o Negative cost
 (development, production and postproduction costs,
including financing costs and contingency reserve)
o Studio overhead
 (a markup based on a % of negative cost, such as
15%)
o Interest
o All deferments and gross participations
 Distribution fee
o Fee charged by the studio/distributor to distribute the
product.
o Usually charged as a % of revenue from any given market.
o Standard distribution fees vary widely, can range from 10%
- 50%
o Usually 25-35%
 Gross participants
o participants entitled to a % of Gross Receipts, less certain
pre-agreed deductions.
 First-Dollar Gross
o Most powerful talent
o Gross receipts minus only “off the top: deductions, such as
trade dues, taxes, residuals
 Net participants
o participants who share in the net profits (most common)
 Reducible
o in the context of Buchwald case, the net profit participation
was reducible by participations granted to third parties, but
only to a certain “floor” (40% reducible to 17.5%)
 Lee v. Marvel enterprises Inc 2005
o Lee has K with marvel that permitted him to share in
profits of character creations for 10% of profits
o Ancillary rights
 Includes merchandising, soundtrack, home video
ect
o Ancillary rights includes rights ancillary to the basic film or
television production itself
 Necessarily includes merchandising rights
o Net profits v. gross profits
o Contract provided for net profit s participation
 Sandy Veith and Vuelta int’l inc v. Mca inc
o March 1981 entered into written K with universal for
“Coletta” project
o If vieth completed additional assignments she would be
additionally compensated
o bonus
 series licensed as a direct result of pilot
photography and
 Veith receives sole shared teleplay credit and sole
or shared separation of rights
o Breach of covenant of good faith
 Requires deliberate conduct designed to frustrate
the obligee’s K rights
 Conduct that constitutes unfair dealing rather than
mistaken judgement
 Conscious and deliberate effort by party breeching
the K
 Not mistake or bad judgement
 Conscious unfair dealing
o Writer didn’t get separation of rights or separate credit
o Producers breached covenant of good faith and fair dealing
o Obligated to pay writer his bonus
 o Found for P $7.5 million
 Control
 Creative Control
o Final cut rights
 Staffing Control
o Approval of director
 Budget Control
o Approval of budget changes
 Preminger v. Columbia pictures
o Director’s final cut rights limited to original film and do not
prohibit editing required for TV licensing of film
o In absence of specific K provision parties deemed to have
adopted custom in industry implicit in grant of TV rights is
the privilege to cut and edit
 Gilliam v. ABC Monty Python
o Scriptwriter agreements
 Detailed procedure for alterations to the script prior
to recording of the program
o Scriptwriter agreement b/w MP and BBC
o Distribution agreement b/w BBC and time life films
o License from time life films
o There was not consent to edit with the TV rights
o ABC and time life could not use K as defense to copyright
infringement because their K they had with BBC granted
them rights that BBC didn’t have
o Performer’s rights to credit
 Williams v. UMG recordings inc.
 Lanham Act
o Reverse passing off
 When a person removes or obliterates the original
trademark without authorization before reselling the
goods produced by someone else
 Mere omission of credit which obscures the
contribution of another to the final product is
actionable under this theory
o P had to demonstrate that his alleged contributions in
within narration script and re editing and re scoring the film
were partly or wholly attributed to others
 P does not have a claim of authorship and direction embodied in
that film
 P’s attempt to differentiate his services as an editor and writer is
distinction without a difference
 General contract provisions
o Representations and Warranties
o Indemnification
o “No Injunctive Relief” Clauses
 o Assignment
o No use/no obligation
o Force majeure
o Further documents
o Survival
o Arbitration
o Rights provisions for creative contributors (writers, directors, producers, actors)
and crew
 Talent agreement – not negotiable that that work is work for hire
 Film
o Developing and Producing
 Key Contracts
 Underlying Rights/Literary Property
 Writers
 Producers
 Directors
 Actors
 Production Crew
 Releases
 Personal and Location
 Music clearances
 Financiers
 Loan or investment
 Distributors
 Presales and other Distribution Agreements
 Unions/Guilds
 Is it a guild production?
o If yes, consider impact on hiring, compensation (production
budget), credits, etc.
 Rights Considerations
o Underlying Rights
 Literary work or life story or treatment/script
o Rights from Contributor
 Work for hire, assignment, license
 Financing
 Studio-financed
o studio owns copyright
 Negative pick-up deal
o studio and producer
o Studio and producer both responsible for $
o Bank financing
 Pre-sales
o Independently financed by producer
o Bank financing, pre-sales
o Co-Producers
 o Individual donations
o Corporate donations
o Kickstarter?
 Tax Incentives
o can be part of any of the above
o Exploiting
 Theatrical Exhibition
 Contracts with Exhibitors
 Secondary Markets
 Non-Theatrical
 Pay VOD
 Home Video and SVOD
 Pay Television
 Free Television and free VOD
 Ancillary Markets and Allied Rights
 Merchandising
o Film-related products
 toys, apparel, posters, games, prop replicas,
costumes, collectibles, etc.
o Publishing
 “Novelizations”
 Screenplay
o Music
 Soundtracks and album
 Music Publishing
 Remake
 Same or similar characters and plot.
 Sequel
 A new film that chronologically follows the events of the first film.
 Prequel
 A new film whose narrative takes place before that of the original
film, e.g. the back-story.
 Television
o Developing and Producing
 Key Contracts
 Underlying Rights Literary Property, Life Story, Treatment,
Format
 Writers
 Showrunner
 Producers
 Director
 Actors
 Production Crew
 Releases
 Personal and Location
  Music clearances
 Financiers/Co-Producers
 Distributors
 Unions/Guilds
 is it a guild production?
o If yes, consider impact on hiring, compensation, credits,
working conditions, etc.
 Rights Considerations
o Underlying Rights: Literary work or life story
 Rights from Contributors: Work for hire, assignment, license
 Financing
o Financed by Network
 network owns copyright
 produced by network or under production services
agreement with producer
o Co-Production with Network(s)
 Network and producer both responsible for $
 Bank financing
 Pre-sales
 Can be foreign and domestic networks
o Independently financed by producer
 Bank financing, pre-sales
 Individual donations
 Corporation and nonprofit donations
o Tax Incentives
 can be part of any of the above
o Exploiting
 Network
 broadcast, cable, pay TV, public television, newer outlets
 Syndication
 Sale of the right to broadcast television shows to multiple
individual stations, without going through a broadcast network.
 First Run
 Programming that is broadcast for the first time as a syndicated
show (not any one particular network), or at least first so offered in
a given country.
 DVD, Pay VOD, SVOD
 revenue generating
 Free streaming
 where does this fit in?
 Merchandising
 toys, apparel, commercial tie-ins
o Contractual Provisions Negotiating Points
 Compensation
 Credit
 Approvals and Controls - creative
  Name and Likeness approvals
 Perquisites (“Perks”)
 Rights Granted/Rights Withheld (for underlying rights deals, distribution
agreements)
o TV writer agreements
 Preminger v. Columbia pictures Corp
 P were producer director
 Had K with Columbia pictures, who entered into K with television
distribution
 Negotiated contracts rights
o Credit
o Compensation
o Control
 Final cutting and editing
 Negotiating points
o Compensation
 Fixed Compensation
 Deferred Compensation
 Contingent Compensation
 Gross Participations
 Net Participations
 MFN
o Credit
 On Screen
 Paid Advertising
 WGA/SAG-AFTRA?
 MFN
o Approvals and Controls
 Creative Approval Examples
 Actor approval of script or costar
 Directors cut or Final cut rights
 Specific uses of names or likenesses and stills for advertising or
merchandising
 Financing or distribution
 Biography of performer
o Perquisites (“Perks”) Examples
 Dressing Facility (trailer with first class amenities)
 Travel Money
 Living Expense Allowance
 Transportation (flights, rental cars)
 Assistants
 Cell Phones
o Rights Granted vs. Withheld
 Example of Literary Purchase/Option Agreement
 All rights granted except “Excluded Rights”
 Withheld, Reverted, or Reserved Rights
  Certain Categories?
 Certain Territories?
 Certain Media?
 Automatic Reversion v Turnaround Right
o Inducement
 Loan out company
 Producer agrees to take on responsibilities of loan out co if they fail to
perform
o Pay or play
 Person will be paid even if the show is not produced
 Questions to ask
o What is to purpose of K
o What are parties trying to accomplish
o What are important negotiating points
o What are the purposes of each provision
o Acting agreement provisions
 Services
 Guaranteed Period/Free Weeks
 Preparatory Period
 Production Period
 Post-Production Services
 Promotional and Publicity
 (premieres, press junkets, talk shows, interviews, pitch meetings)
 Compensation
 (fixed, deferred and contingent)
 Credit
 No Obligation to Use, Re-use
 Name and Likeness/Endorsement Restrictions
 Dispute Resolution
 Film K
o Filmline productions inc. v. united Artists corp
 Yellow bill to finance film, Filmline would produce it and UA would
purchase the picture upon completion
 Negative pickup agreement
 Breach of K
 Negative pickup agreement
 Financing agreement
 Standard terms and conditions
 UA did not allow Filmline any chance to correct the error of the original
script being different form final product
 Did not follow terms of K
 UA did not have a right to terminate
o Buchwalkd v. Paramount
 Breach of K not copyright infringement
 Movie was based upon Buchwald’s story and concept
  In K entitled to contingent comp if motion picture produced based upon
his work
 Meaning of “based upon”
 Must have access and similarity to prove based upon
 Paramount had access to his ideas and therefore found it to be based upon
Buchwald idea
 Court found that certain provisions of Paramount’s net profits formula was
unconscionable
 Establishing compensation to P ($570K) and Buchwald ($150K)
 Paramount appealed and parties settled for $1 million
 Phase 1
 This case: was the movie “based upon” Buchwald’s story &
concept?
 Phase 2
 The court found that certain provisions of Paramount’s net profits
formula were unconscionable.
 Phase 3
 Establishing compensation to plaintiffs (Producer awarded $750K
in “fair market value” damages and Buchwald awarded $150K).
Paramount appealed and the parties settled (reportedly for more
than $1M)
 Music Licensing
o The “work” of composition
 The music and/or lyrics
o Sound recording
 Creation of performers
 Singers
 Instruments
 Recording engineers
 Ownership governed by record label
 Master tape
 Video games, virtual worlds and social media
o Videogames are protected under copyright
 Original work fixed in a tangible medium of expression
 Audiovidual work
 Visual and auditory elements
 Protected as literary works
 computer code
 Infringement
 Identical or substantially similar
o Social media
 FTC guidelines for celebrities
 Truthful
 Not misleading
 Disclosure about connection b/w celeb and endorser
o Brown v. Entertainment merchs ass’n
 CA that prohibited violent videogame sale to minors
 Exceptions to free speech
 Obscenity
 fighting words
 incitement
 strict scrutiny
 narrowly tailored
 compelling government interest
 CA law is invalid unless Ca can justify the law by a compelling
government interest and is narrowly drawn to serve that interest
 State must identify an actual problem in need of solving
 Curtailment of free speech must be actually necessary to the
solution
 Not compelling interest
 Statute not narrowly tailored
 Don’t restrict violent TV
 Parental authority – over inclusive
o Some parents are fine with children being exposed to
violent videogames
 Under inclusive – does not include books, TV, movies