Sunday, November 18, 2012

When should you work with an Entertainment Attorney?


By:  Tifanie Jodeh, Esq. 
It's best if you have an attorney in your pocket at the very beginning of your project. For example, this may mean hiring a writer to write your script or getting permission to make a screenplay from a book.  The can also be helpful in sourcing your team which includes casting directors, co-producers, directors, talent and the like.  Your team will need contracts and your attorney will be there to lock everyone in to your project. 

Contracts drafted-  A savvy filmmaker or producer knows that everything in the realm of business is smartly done via contracts. Contracts protect both parties. Contracts form the foundation for duties, tasks and responsibilities of all parties involved. When you have everything documented, you are one step ahead in making certain that your production is fully "cleared".   Cleared means that all rights and legalities have been formally executed and that your film is able to acknowledged that you hold all the needed rights to use each aspect of the property.  Cleared rights include trademarks, options, work for hires, name and likeness, copyrights and insurance.  Your entertainment attorney will help guide you in the right direction and make sure that you don't legally impede your production. 

Other items to consider.
Make sure you have a budget that includes items such as script clearance, title clearance, E&O insurance and (sometimes) a bond.   It protects you as a producer and filmmaker, it protects your investors and distributors.  Make sure your attorney sees a first cut of your project.  They may flag possible clearance issues that you did not catch during filming.  For example, a shot of a "McDonald's" cup appears but you failed to call the McDonald's company to get permission to use their trademark.  You and your attorney can work together in obtaining permission or leaving the image on the cutting room floor. 

Additional Resources
Our website, www.entlawpartners.com is full of information and resources.  Our blog contains the latest news, views and updates on entertainment law.  Or, you may give us a call for a free consultation. 

COPYRIGHT & DISCLAIMER

Tifanie Jodeh is Partner at Entertainment Law Partners dedicated to corporate, business and entertainment affairs. 
Tifanie Jodeh grants column recipients permission to copy and distribute this column 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: Readers should consult with a lawyer before solely relying on any information contained herein.


 

 

Thursday, October 18, 2012

The Deals That Reality Stars Receive Just for Being Themselves.


By: Katrina Yu, Associate at Entertainment Law Partners

Ever since the explosion of reality television shows on all major cable networks, we have seen the “talent” of individuals ranging from Shawn Johnson (“Dancing With the Stars”) to Kim Kardashian (“Keeping Up With The Kardashians”) to Honey Boo Boo (“Here Comes Honey Boo Boo”) and the infamous cast of The Jersey Shore. These individuals have filled our TV sets with joy, laughter, confusion, frustration, anger, and for some, just pure adulterated-entertainment. So exactly how much do these “talented”individuals make for a living and are their entertainment values worth the price tag?

Starting with the cast of ABC’s “Dancing With the Stars,” the pro-dancers reportedly made $1,600/episode during the shows’ earlier seasons, and currently make around $5,200/episode, plus bonuses for making it into the final rounds. This adds up to about $57,200 for the 3 pro-dancers who make it all the way to week 11 of the show. $57,200 might not seem like a lot at first glance, but in reality, $57,200 for 11 weeks is only about 3 months worth of work, and even then, it is higher than most professionals receive as a yearly salary. Of course, for those unlucky pro-dancers that get booted after the 2ndweek, they would only make $10,400, but that is still a huge payday for two weeks worth of hard labor.

However, $57,200 is pocket change compared to the salaries that the “stars” receive for being on the show. According to various sources, each celebrity (regardless of his/her star power) gets a base salary of $125K just for being on the show! That alone is more than double what the pros make for the entire season! In addition, the “Stars” are given additional salaries per week as they progress in the show. The winner of this reality series can earn up to $365K for the show, more than 6 times what the actual professional dancers make!

Remarkably, the price tag only gets more interesting when talking about other shows. For example, each “cast” member of the new TLC hit “Here Comes Honey Boo Boo”reportedly earned $5K to $7K/episode that was later increased to $15K to $20K/episode, by episode 2! The 6 members of the Honey Boo Boo clan made roughly $140K to $187K collectively this year for their 10 episode series! It has been further reported that TLC has even offered to cover various expenses for the family including hiring a bodyguard, a driver and even purchasing a new house.

Advancing from Honey Boo Boo, we come to the cast of MTV’s Jersey Shore. The guidos and guidettes of this popular MTV series reportedly started off their fame with a measly $5K/episode, which roughly translated to about $45K for Season 1. However, after the show's success, it has been reported that in Season 2, the main cast of Jersey Shore made $10K (twice the amount from Season 1) per episode during its 13 episodes run. In Season 3, that price tag per person tripled to $30K/episode. By its 4th Season, the cast was so invaluable to MTV, that they were able to negotiate a $100K/episode deal that gave the“stars” a final paycheck of $1.2 million for the entire season! The cast is now hopefully in their final season of taping, and each main cast member reportedly receives $150K/episode in this 12 episodes season. That is $1.8 million just for being J-Woww, Snooki, the Situation, Vinny, Pauly D and Deena! This does not even include the multiple side gigs that each of the “star” gets paid for throughout the year!

Lastly, we come to the Mother of all Reality TV stars, the one and only Ms. Kim Kardashian. In 2007, Ms. K made $5 million alone when she settled her lawsuit against Vivid Entertainment for her sex tape with Ray J. That in turn provided Ms. K with a reported $15K/episode for her very own reality show on E!’s ‘Keeping Up With The Kardashians.Since 2007, Ms. K’s salary on the reality series has increased to $40K/episode and the show is now in its 7thSeason in addition to various spin offs. Additionally, she also reportedly made $18 million alone off endorsements and TV rights.

Ms. Kardashian is the epitome of all that is miraculous, great, and exciting in this vast world of entertainment culture. You never know if the next “big thing” is the homeless man around the corner or the talented YouTube singer that is trying to raise money to produce his/her first record. In the end, the only thing that matters is if the public is infatuated with you. And, if they are, let the negotiations for higher fees begin!

COPYRIGHT and DISCLAIMER

Katrina Yu is an Assoicate at Entertainment Law Partners dedicated to corporate, business and entertainment affairs. You may contact her at Katrina@entlawpartners.com.

Entertainment Law Partners grants column recipients permission to copy and distribute this column 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: Readers should consult with a lawyer before solely relying on any information contained herein. (c) Entertainment Law Partners


 

Tuesday, October 9, 2012

Great Tips for Filmmakers who are using Social Media

Monday, July 16, 2012

The Pros and Cons: Arbitration or Litigation. JAMS or AAA?

By: Steven G. Kaplan and Patrick Bowers

Disputes happen all the time.  Most disputes are minor and resolved between parties without involving a third party.  But where parties cannot resolve their disputes--and because we live in an alleged civilized society in which we strongly discourage private resolution of conflict by means labeled “anti-social” (e.g., dueling)—a third party is called in to assist in resolving the dispute.  You pay your taxes (probably) so why not get your money’s worth and take your dispute to court.  If dueling is frowned upon, what’s left other than rushing to court?  Let’s consider binding arbitration.

Arbitration pro:  Speedier resolution, however, this is not always the case due to numerous parties, arbitrators, lawyers, and litigation strategies. 

Litigation pro:  There is a large body of substantive law and procedure which automatically organizes the lawsuit and the parties don’t have to create the rules that will govern the dispute.

Arbitration pro:  Less costly, however, this might not always be the case due to numerous parties, arbitrators, lawyers, and litigation strategies.   

Litigation pro:  The judge, by law, must be impartial and the judge’s salary does not depend upon whether the parties ever use that particular judge in a future matter.  The judge is not personally affected by the outcome of the dispute. 

Arbitration pro:  Exclusionary rules of evidence don’t apply.  Everything can be admitted into evidence so long as relevant and non-cumulative. 

Litigation pro:  Trial takes place in the courthouse and therefore neutral territory.

Arbitration pro:  Not a public hearing.  There is no public record of the proceedings. 

Litigation pro:  If a litigant is unhappy with the court’s decision an appeal might be possible.

Arbitration pro:  From a defense point of view, there is reduced risk of punitive damages and run away juries.

Once the parties choose binding arbitration over litigation, either in the contract or after the dispute arises, they must then choose an arbitration body, the most prominent being JAMS and the American Arbitration Association (AAA). 

Yippee!  You won an award in binding arbitration.  Well, don’t pop the champagne cork just yet.  With JAMS, even if you win an award, it will not give you your award until you pay the arbitrator fees.  So you have racked up quite the tab for arbitrator fees.  No problem; I can pay with part of my award, right?  Nope.  You must pay the arbitrator fees with money apart from the award. 

On the other hand, AAA will release your award without full payment of the arbitrator fees.  That way you can pay the arbitrator fees with part of your award, pop the champagne cork, and move on with your life.  Cheers!       

Tuesday, May 29, 2012

Right of Publicity: How much are you really worth?

By:  Tifanie Jodeh.      The right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona.

It gives an individual the exclusive right to license the use of their identity for commercial gain.  Protections have recently been expanded to a celebrity’s “likeness” which can include voice or vocal style. If you have a commercial interest or value to your name and likeness, you are generally afforded protection.   It is a area of intangible personal property that can be marketed and used, assigned or licensed, and,  sometimes, passed down to heirs.

In the United States, the right of publicity is largely protected by state common or statutory law. Only about 19 of the states have statutes or laws recognizing a right of publicity, some of these states include: California, Florida, Massachusetts and Tennessee.  States that recognize the right to publicity in common law only include: Alabama, Arizona, Connecticut, Georgia, Hawaii, Main, Michigan, Minnesota, Missouri, New Jersey and Oregon.

The question becomes how do you value the celebrity’s image in a commercial use?  What more considerations are taken into account when the use was not approved by the celebrity?  And, last, what impact did the unauthorized use have on the celebrity’s future earning capacity. 

An exemplification of this principle can be found in the No Doubt vs. Activision Publishing case.  No Doubt brought an action against video game manufacturer, Activision Publishing, alleging that Activision used No Doubt’s likeness in an unauthorized format in the video game “Band Hero”.   According to the complaint, the Defendant created a game where players have the ability to make lifelike embodiments (an Avatar) of No Doubt singing, dancing and performing.  The Plaintiff and Defendant specifically contracted for animated character representations of the band performing three No Doubt songs.  The contract further stated that any other use would be subject to Plaintiff’s approval.  Instead, the Plaintiff alleged that Defendant created the game to cause members of No Doubt to perform vocally as solo artists without the other band members to over 60 unauthorized songs.  The Plaintiff alleges that they only allowed the name and likeness as a collective group and not individually and, further, that the Avatar function of the games did not allow for the Defendant to manipulate the name and likeness of the band. 

The court found that Plaintiff contracted with Activision so that they would only engage in certain contacted for activities.  Plaintiff controlled the rights it was allowing Activision to incorporate into the videogame.  Subsequently, Defendant engaged in certain additional activities that were not contractually permissible.  Thus, No Doubt had a valid breach of contract cause of action and that they had a valid tort cause of action for violation of the Plaintiff’s right of Publicity.    In other words, No Doubt did not agree to the manner and use of their name and likeness in the game and had not contractually assigned or authorized such use.  No Doubt will likely be granted damages for commercial loss.  

So, the lesson learned?  The best way to avoid a violation of the right of publicity is to obtain an individual's consent to use their name or likeness in a commercial product.  You can obtain a simple assignment of name and likeness rights release or negotiate out a licensing deal for authorized use of these rights. 

COPYRIGHT & DISCLAIMER

Tifanie Jodeh is Partner at Entertainment Law Partners dedicated to corporate, business and entertainment affairs.  You may contact her at Tifanie@entlawpartners.com.

Tifanie Jodeh grants column recipients permission to copy and distribute this column 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: Readers should consult with a lawyer before solely relying on any information contained herein.



Friday, April 27, 2012

Navigating the Cannes Film Festival


By:  Steven G. Kaplan.   Whether it is your first or twelfth time to the Cannes Film Festival, this article will help you navigate the complexity of the festival and market. I first attended Cannes in 1999 to support the international sales efforts on my first feature, TERROR TRACT. Since then, I've attended the festival every year so my comments derive from personal experience (some painful, some not).

1. Stay in Cannes. I really cannot emphasize enough how important it is to stay in Cannes and not outside. Walking distance from the Palais (where most of the sellers have their offices) and the hotel row on the Croisette is critical. Sole exception would be the Hotel Du Cap, particularly if you are a financier or just want your privacy, then Du Cap is the place to be. Most of the major film industry heavy weights stay there, but it is a 25 minute drive into the part of town where most of the action is. Don’t stay at Du Cap if your meetings and events mostly take place in town. The best locations to stay would be center pointe on the Rue la Croisette, between the Majestic Hotel and the Carlton Hotel, or in an apartment behind those hotels to the main drag. Another great option is staying on a yacht. Even though the staterooms tend to be small, there is nothing like the convenience and glamour of spending your time in Cannes on a yacht.
2. Rent a Car? What’s the point? You have to hassle with parking, the expense and everything that goes with that. Taxis are plentiful and don’t cost that much. Exception would be if you are staying out of town or at Du Cap.
3. What About My Stuff? There is a fair amount of risk of theft or loss of your personal possessions. I follow a very simple rule: carry everything on your body that you can absolutely not afford to lose. This includes your passport, money and credit cards. Hide everything you care about otherwise in your room. Only leave things behind that you care nothing about. With iPads and tablet devices, laptop is no longer necessary unless you are doing heavy duty writing or drafting documents.
4. Advance Planning. The best way to make Cannes effective is to plan in advance. There is so much happening that the chaos theory frequently rules. I find that starting your meetings at 11 a.m. is most effective to avoid last minute cancellations from too much partying the night before. Schedule meetings and events in advance but remain flexible as everyone’s schedule is constantly in flux. A typical day would include numerous meetings, cocktail hours (2 or 3), dinner meeting, premiere and afterparty.
5. Things to Pack. Necessities: bring a Tux or Formal Dress, a passport and credit cards (better exchange rate). All of the screenings at the Luminere (the superbowl of movie theaters) require formal wear for the men (including bow tie- NO neckties allowed) and formal dress for the ladies. They won’t let you in without it.
6. Credentials. You must get a Marche du Film credential if you want to see any screenings. A market badge is critical if you want to enter the Palais to meet with buyers or sellers. If you have produced or executive produced a film, register for the Producer’s Network. American Pavilion pass is good if its your first time in Cannes at the festival and need a good meeting spot with WiFi.
7. Pace Yourself. The Cannes Film Festival is a whirlwind of meetings, panels, network opportunities, red carpet premieres, yacht parties, late night drinks and rockstar parties. Pace yourself (see #4). Need I say more?
Most importantly, have fun and don’t get too stressed.  After all, you are in Cannes for the Superbowl of film festivals and film markets. It could be worse.
Entertainment Law Partners will be in attendance at the Cannes Film Festival from May 17-23. To set a meeting to discuss your project, please email us.                       

COPYRIGHT & DISCLAIMER
Steven G. Kaplan is Partner at Entertainment Law Partners dedicated to corporate, business and entertainment affairs.  You may contact him at Steve@entlawpartners.com.

Steven G. Kaplan grants column recipients permission to copy and distribute this column 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: Readers should consult with a lawyer before solely relying on any information contained herein.



Tuesday, March 13, 2012

When is it OK to use Copyrighted materials without obtaining permission. By: Tifanie Jodeh


As digital signage emerges further into the mainstream marketplace, content providers find it necessary to retain value by displaying content which captures attention, educates, promotes, and entertains and, most of all, generates revenue.

This article briefly addresses how content providers can deliver such content legally.
It is likely that most everyone reading this article has taken a magazine to the scanner and made a copy of an image or article of interest. On the same level, it could be assumed that a select number of content providers may have incorporated a film clip or piece of music into a produced piece which was displayed to the public. The issue is whether such use was a violation of copyright law. 
Copyright law is protective of works such as photographs, music compositions, films, sculptures, news articles and paintings.  These forms of creative, expressive media are protected as any “original work of authorship fixed in any tangible medium of expression.” (Under the Copyright Act).
Many content creators are confused about the fair use doctrine and whether they need permission to borrow from the owners of copyrighted works. “Fair use” allows conditions under which content creators can use material that is copyrighted by someone else without paying royalties or needing to obtain a license.  It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship.
Such examples of uses include news, fair comment and criticism, parody, reporting, teaching, scholarship and research. Filmmakers, artists and writers benefit from the fact that the copyright law does not exactly specify how to apply fair use.  Creative needs are considered and whether the use is “fair” according to a “rule of reason”. 
Courts employ a four part test (set out in the Copyright Act) and ask two key questions:
1.  Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than the original, or did it just repeat the work for the same intent and value as the original. 
2. Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use. 
If the answer to both questions is in the affirmative, a court is likely to find a fair use. 
For example, if a reporter quotes a paragraph from an article you wrote online and that reporter compares your opinion with that of other commentators, this is likely permitted by the fair use doctrine without the need to obtain your permission.
The following are some common questions with regard to usage of content:  “What if the usage had been only to advertise the network?”  “Can I use of segment from a music video or copy an excerpt from an article without obtaining permission?”  “What if I am planning on getting permission after the content is displayed?”   “If I am not making money from the display of the content, do I violate the copyright act?” 
The answer to most of these questions is: It depends on the use of the content. 
Be sure to keep in mind that fair use is a very fact-sensitive defense to a copyright claim.  It is sometimes difficult for producers, writers and content creators to determine beforehand whether a particular use is in fact a fair use. For this reason, it is a good idea to seek out a license before engaging in a use that might be a "maybe" fair use.
In conclusion, digital signage content providers, whether agencies or individuals, should consider the following before incorporating material into their content:
Don’t assume you have permission to use copyrighted material.  Be sure to get the permission in writing. 
If you did not create the content yourself then assume that it is copyrighted and you should obtain permission for its use. 
If you think you made need a license to use the content, then you probably do.
Assume and prepare for negotiating license fees or obtaining permission to use copyrighted material.
Have a second choice lined up in the event that you do not obtain permission from your first choice. 
You will most likely be required to provide a credit for the use of the copyrighted content (such as: “footage provided by XYZ Network”).
If you are in doubt that you need permission to use a certain clip, image, quote, or song, then stay on the safe side and obtain permission.  You should retain an attorney to help you through this process. 

For more information, visit the copyright office at
http://www.copyright.gov/.

COPYRIGHT & DISCLAIMER
Tifanie Jodeh is Partner at Entertainment Law Partners, LLP dedicated to corporate, business and entertainment affairs.  You may contact her at Tifanie@entlawpartners.com.
[Tifanie Jodeh grants column recipients permission to copy and distribute this column 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: Readers should consult with a lawyer before solely relying on any information contained herein.