Weak Link in your Chain of Title?

To begin, a “chain of title” means a group of documents that proves you have the rights and ownership in your film, TV show, webisode, etc.  You must prove you own your project in order to satisfy due diligence requirements by investors, distributors, financiers, banks, etc.  As the your project is being produced, it is very likely you are tempted to rely on email exchanges or make handshake deals, which you believe gives you the rights to produce, finance, own and sell your project.  However, this is what I term "the weak link" in any chain of title.  As a producer, you must be over cautious is making sure the rights you gain are properly documented.  In this way, you demonstrate your professional, organizational and technical skills as a producer at the onset rather than having to go back and retrace your steps to find the "weak link" in your chain of title.  Depending on the scope of your project, you may need only a few documents or as much as a few binders.  You should know that each document must lead to the next one in the chain so as to make sure there is no gap in the rights flowing from each person and eventually leading to you.   

If you can prove a proper chain of title, you will have satisfied one of the main requirements by any distributor, financier, bank, etc.  Why?  By securing a chain of title, you can legally prove you are the owner and, thereby, avoiding a lawsuit alleging that you did not have the proper rights.  Chain of title is, sometimes, an afterthought to some inexperienced producers.  These producers discover chain of title requirements at the time they enter into distribution discussions for their project.  Distributors will deliver to Producers what's known as a "Delivery Schedule", which lists, amongst other things, required legal documents to be delivered.  Here is a list of some examples of documents you may need to have in your chain of title:

1.  Copyright registration certificates for underlying material

2.  Life Rights

3.  Writer Agreements

4.  Work for Hire Agreements

5.  Producer agreements


6.  Option Agreements

7.  Extension Agreements

8.  Quitclaims

9.  Certificates of Authorship

10.  Life Rights

11.  Copyright search

12.  Script clearance

One of the main documents a Producer will need to deliver to a distributor is Errors & Omissions (E&O) insurance.  This is required prior to any distributor buying your film.  E&O insurance will require you, amongst other things, to list and provide copies of such things as like chain of title documents, title clearance, copyrights, and script clearance.  E&O will help to protect and indemnify you from lawsuits filed against you or the project for such claims as intellectual property infringement, defamation, libel, slander, name and likeness, etc. 

 I am often asked, while performing production legal services for my Producer and Production company clients, to provide a list of documents needed for chain of title.  The type and number of documents varies depending on numerous factors, which includes the source of materials (i.e. is it from a book or original screenplay) to deciphering whom contractually on the production holds approval rights over materials, production, concept and writing services.  The most basic premise is: remember get written permission for any and all rights from EVERYONE working on your project so you can claim 100% ownership in your project.  The chain of title has to start with the very first work where your project idea originated, then work down the chain from that point.   For example, say you want to have a screenplay written based on a book.  You must acquire rights or permission to create a film based on the book from the book's author.  Then, you will most likely engage a screenwriter to write the script.  You will need to obtain the rights for the screenplay as well.  So far, the document count in your chain of title is 2.  Next, say, you have a director who wishes to have one of his employee's perform a few changes to the script.  You need to obtain the rights from your director's employee as well.  That makes 3 documents in your chain... and so on.  Also, the screenplay must have documentation proving it has been registered with the U.S. Copyright Office.  Later, eventually, you will have to obtain documentation that your actual final project is also registered with the U.S. Copyright Office. 

So, as I said at the onset of this article, avoid weak links in your chain of title!  In order to preserve your chances of selling your project and protect against potential legal claims, then it is best and most important for Producers to engage a proper lawyer to navigate and manage your production legal and the chain of title. 

 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.

DISCLAIMER: Readers should consult with a lawyer before solely relying on any information contained herein.

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.

Tifanie Jodeh authors article in the premiere issue of "Hollywood and Vine" magazine.

Co-founder and partner, Tifanie Jodeh, authored an article under the "Showbiz, Esq." section of the Hollywood and Vine premiere issue. 

The article is entitled, "Copyright and the Rule of Reason". An excerpt from the article includes a discussion on fair use. “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.  You can get your copy of the magazine by visiting:  http://www.hollywoodvinemag.com/premiereissue.  The kick off party was hosted by Editor in Chief, Angela Hutchinson, at the W Hotel in Hollywood.  You can find pictures of the entire event by clicking here: Launch Party.

Jodeh's next article for the mag is scheduled to be released in September 2011.