Monday, November 4, 2013

When is it OK to Use Copyrighted Materials Without Obtaining Permission

By:  Tifanie Jodeh
Copyright 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.

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.

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

COPYRIGHT & DISCLAIMER
Tifanie Jodeh is Partner at Entertainment Law Partners dedicated to corporate, business and entertainment affairs.  You may contact her at Asst@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.

Monday, August 26, 2013

The Missing Piece of the Jigsaw.

Tax relief launched in the UK for high-end TV and animation, is being hailed as “one of the biggest opportunities we’ve had in a generation”. Clive Bull reports



The UK’s already robust film and television production sector is experiencing another uplift thanks to recently launched Creative Sector Tax Reliefs announced for high-end television and animation, with a games incentive pending EC Sate Aid Approval. The schemes include provision for tax relief on television productions where the budget exceeds £1m per broadcast hour, amounting to a 25% rebate on qualifying production spend within the UK, capped at 80% of the budget. To a large extend, the new television incentive is based on the existing Film Tax Relief (FTR), which is credited with bringing numerous major productions to the UK. As with the FTR, there is a points-based cultural test to establish whether the production qualifies as British.
            “The Film Tax Relief, since it was launched in its present form in 2007, has been a great success,” Adrian Wootton, chief executive of the British Film Commission and Film London, says. “It’s attracted an awful lot of inward investment, which has allowed the British film industry to invest and expand.”
            But while film companies were finding the UK an attractive proposition both in terms of facilities available and the financial incentives, there was a growing feeling the large-scale television productions, particularly from the US, were not being offered the same competitive edge. That case was conveyed by the industry to the UK government and the result was the announcement of a tax relief in April 2012 which already appears to be attracting ambitious drama projects that might previously have had to look elsewhere.
            Wootton says a lot of creative decision-making informs television companies’ choice of location, unless that choice is ruled out on the ground of finance. Companies like HBO, he adds, were insisting that they wanted to come to the UK but needed the level playing field that a competitive incentive affords in order to make that choice. “They said, ‘We’re spending billions of dollars worldwide and where’s the one place we want to shoot and we can’t? It’s in the UK. So give us the reason to do it. We know what you can deliver and we’d rather make it with you if we could.’”
            It’s clear that the financial incentive is not the only motivation behind productions preferring to be based in the UK. “Think about the concentration of facilities that we have, the quality of the crews, the amount of investment we have made in training, the time zones – and also the language factor is not an inconsiderable one,” Wootton says. “There’s a whole multiplicity of factors and what we needed was the missing piece in the jigsaw puzzle. We’ve got that missing piece now and I think we’ve got a really competitive and exciting offer that people will want to grab.”
            The worldwide shift towards high-end serial drama is another significant factor behind the new incentive, as terrestrial broadcasters, along with cable, satellite and online players, seeking to give themselves an audience USP, move increasingly towards more lavish shows with higher production values.
            Richard Williams, chief executive of Northern Ireland Screen, cites HBO’s Game Of Thrones as a case in point. “It is the perfect example,” he says. “I think our being able to articulate what the value of Game Of Thrones was to the development of the sector here, and its value to the economy, was one of a number of very significant arguments that led to the tax incentive.”
            The HBO epic fantasy series is now confirmed as shooting for a fourth season in Northern Ireland. Williams says help from the Northern Ireland Assembly in funding the pilot was the clincher: “We provided the same level of incentive for the pilot that we did for the first season, on the logic that if you don’t get the pilot, you can’t get the series. So that was a bit of a risk, but it paid off for us. And that is one of the important pieces of the legislation – that the incentive needs to be available to pilots, because for a lot of the broadcasters that’s still the way they do it. Game Of Thrones wouldn’t have happened in Northern Ireland if the pilot hadn’t happened in Northern Ireland.”
            John McVay, chief executive of Pact, which represents UK independent content, was on the Treasury working group that advised government on the structure of the new tax relief. He agrees that high-end series will be attracted to the UK by the scheme. “If you look at the strategies of a lot of the US networks that produce high-cost drama, they are looking to try and find ways to finance that,” he says. “They look around the globe for co-production partners, co-financing and incentives, because the TV industry has gone global very quickly. So the UK is well placed to be a hub for that type of production internationally. But also it’s a great opportunity for us, because we have very high-quality international producers based in the UK. Having an incentive in your pocket when you go out into the market is very, very helpful.”
            McVay says the Starz/BBC Worldwide production Da Vinci’s Demons, shot in South Wales with the help of the Welsh government, is another example of the kind of high-quality drama already shooting in the UK. “They started that without incentives and I’m quite sure those shorts of channels and producers will be looking at the UK with even more interest now that we have an incentive,” he says. “People like to work in the UK because we offer very high quality, have a very can-do attitude, and the people are generally welcoming to production. We have very good technical skills, and very good post-production and CGI – that’s been the rationale for so many US feature films to come here.”
            Already prompting widespread interest from around the world, Wootton says the initiative will bring inward investment from big international dramas, co-productions with UK companies, and domestic drama that was previously going offshore.
            “I think it’s one of the biggest opportunities we’ve had in a generation,” Wootton adds. “This is a brand new opportunity and, certainly, if the volume of enquiries and level of interest that we’ve been getting both in London and in the US office of the British Film Commission is anything to go by, the UK will soon be first choice for international high-end production.”

For more information go to: http://www.britishfilmcommission.org.uk/


Article courtesy of Location UK.

Wednesday, March 20, 2013

Latest update on Crowdfunding

By:  Tifanie Jodeh, Esq.

"Crowd Funding" (also known as crowd financing, equity crowdfunding, or group funding) describes a group effort by supporters of a project who network and pool their money, usually via a website/Internet to fund efforts initiated by other people or organizations.

Crowdfunding has arguably revolutionized the way in which low budget films are sourced, financed and supported. 

The two biggest crowdfunding sites are Kickstarter and Indiegogo.   Kickstarter uses the “all or nothing” funding model, whereby projects receive money pledged only if their total fundraising goals are met.  Indiegogo offers two different options:  1. the same “all or nothing” model or 2.  “Flexible Funding” campaign that allows users to keep money raised, irrespective of whether their funding goals are met. There are many other crowdfunding sources available.  These include sites such as Pozible, Peerbackers, RocketHub, Speed&Spark and USAprojects (as examples). Though, Kickstarter is the leader in the pack. 

There is little doubt that crowdfunding works.  To date, Kickstarter has successfully funded over 9,000 films.   
Even more, these projects are noteworthy in their own right.  The short documentary “Inocente” became the first Kickstarter-funded film to win an Oscar.  Other Kickstarter-funded films nominated for Oscars include the live action short “Buzkashi Boys” and the documentary shorts “Kings Point,” “Incident in New Baghdad,” “Sun Come Up” and “Barber of Birmingham.” 

Recently, Rob Thomas’ “Veronica Mars” Kickstarter campaign shattered Kickstarter records when it raised $1 million in just four hours and 24 minutes, and $2 million in 10 hours.   At the time of this writing, over $3.7 million has been pledged by more than 56,500 people. 

These crowdfunding sites generally operate on a reward basis.   Prospective supporters can pledge money flat out, or they can give money in exchange for pre-determined non-monetary rewards.  These rewards may include items such as DVDs, signed movie posters or scripts, tickets to red carpet premieres, Executive Producer credits and the like.    

A key point is that, under the current crowdfunding model, potential supporter will never see or should expect a financial return on their investments.  Their financial contributions do not buy them any ownership in a film, any right to recoup what they've invested, or any right to share in the profits that a film may make.     
Crowdfunding participants do not own any equity in the project. So if it ends up doing very well, the producers and stars also stand to earn a decent amount of money since there will be no need to repay the production and investment costs.  

An additional option to raise funds through the Internet will be available via Obama's JOBS (Jumpstart Our Business Startups) Act.  The JOBS Act is set to fundamentally change how crowdfunding works by allowing sites like Kickstarter and Indiegogo to sell to its members equity – or ownership - stakes in films.  This is known as “equity crowdfunding.”     

President Obama signed the JOBS Act into law on April 5, 2012, and at Congress’ instruction, the Securities and Exchange Commission (SEC) is monitoring the new changes before they take effect, which is expected to occur at the end of 2013.    

Before the JOBS Act, filmmakers were prohibited from publicly soliciting, via calls, email blasts, or websites, for funds in exchange for equity.   Additionally, they were only allowed to take such investments from accredited (generally meaning wealthy investors), or up to $1 million from unaccredited investors they had a "substantive" (such as friends and family) relationship with. 

The JOBS Act lifts the ban on general solicitation and advertising, and allows, with certain protective guidelines, a filmmaker to take funds in exchange for equity from anyone, regardless of their financial status or their relationship to the filmmaker.

You should work with a experienced entertainment/securities attorney to make sure you are properly within the guidelines of the JOBS Act. 

With the combination of Crowdfunding and the JOBS Act, filmmakers and producers have a better chance to build a project to success and independently control its fate.  

(c) Entertainment Law Partners and Tifanie Jodeh, Esq.  


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.