How To Make the Most out of the Inevitable Streaming War -Disney, COVID-19 and Digital Distribution

By: Tifanie Jodeh, Esq.

Kelmer Messina

Fewer industries have been more affected by the current COVID-19 pandemic than the entertainment industry. With nearly every production shut down and movie theaters closed, now can be the time to adapt and become inventive. 

For that reason, we are discussing the digital distribution and streaming services and the future of content viewing in the wave of this pandemic.

While before the box office served a king and an online/streaming/on-demand exclusive release model as the last option for a lot of productions, it seems that for the immediate future, a “straight-to-stream” model will be a viable point of entry for producers and filmmakers. According to studies cited on Los Angeles Times’ recent “Coronavirus Entertainment” article, “the average person is streaming eight hours of content each day, double the number of hours from before the pandemic rapidly spread in the U.S.” and “three in four people are using more streaming services since the coronavirus came to the U.S.” [1]. Now, more than ever, is the best time to get into the streaming business. 

Media giants like Disney are desperately trying to make the best out of this situation by releasing content on their streaming platforms way ahead of schedule both to evoke the attention of the quarantined public and cut the losses of unsuccessful releases. 

Despite being extremely publicized, Frozen 2 and Onward, both of these animated blockbusters had to be pulled from theaters into Disney+ because of the pandemic. Nonetheless this move has brought great numbers and success to the platform. Because of COVID-19, Onward only recouped half of its $200M budget at the box office but through Disney+, Disney will likely be able to cut their losses. Currently, Disney+ has duplicated their number of subscribers in the last two months thanks to the success of these releases [2]. Currently, the upcoming Artemis Fowl will now debut as a streaming exclusive instead of as a theatrical release and heavy rumors steer in the way of the same thing happening with the live-action adaptation of Mulan. 

This trend of releasing content early combined with the shut down of all productions and the upcoming release of HBO Max and NBC’s Peacock streaming services along with their strong catalogs will create an unprecedented bidding war for new content wherein all the players will compete to get each other out of business by having the most content and the most exclusives. Producers with content in development or in pre-production are well positioned to take advantage of this content demand and potentially put a huge amount of money in producer’s hands in the near future, while these streamers are preparing for the incoming production drought. 

Let us deal with these media giants’ aggressive negotiation tactics. We at Entertainment Law Partners’ have extensive industry and deal making experience. Take advantage of this drought and get the deal you deserve. 

If you have questions concerning this topic, or other areas of entertainment law, please email us at Asst@entlawpartners.com.

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.

[1] https://www.latimes.com/entertainment-arts/business/story/2020-04-14/coronavirus-more-people-sampling-streaming

[2] https://www.theverge.com/2020/4/8/21214236/disney-plus-50-million-subscribers-international-europe-india-netflix

Tips on Negotiating Deals with Business Affairs Executives in TV and Film

By: Tifanie Jodeh
 We have all had interactions with in-house business affairs executives, or what we call “BA”.  Most business affairs executives are lawyers, but some are not.  You are at the mercy of their work overload, pressure to get deals done, dealing with many of us outside counsel and producers who range in experience from novice to overly exuberant in their negotiation tactics and deal flow.  In order to avoid being completely “zoned out” by BA or putting yourself at risk in getting an immediate “NO!” to a requested deal point, you have to understand how and when to work one issue over another.

A BA executive, more often than not, doesn’t care about practicing law.  Instead, a BA executive is usually more interested in making a deal and letting legal affairs deal with the heavy lifting of legal contract drafting nuts and bolts.  BA executives have the ability to make business decisions, according to company policy, with the mission of getting the best deal they can for their employer.  However, know that sometimes the best deal isn’t as important as getting a deal done to the BA executive.  So, tip # 1- navigate and move according to the BA executive’s time preference in working a deal, or, in other words, how he/she likes doing things and moving to the “beat of their own drum”, not yours (so to say).  I do not to mean this to imply for you to lay down and not negotiate vigorously on behalf of yourself or your client.  I’m simply suggesting to know that you are playing as a visiting team in the BA’s home stadium. 

Tip # 2- I have found it very successful to call and introduce myself to the BA executive on the outset of the deal (if I don’t know them already).  This sets a friendly, professional and constructive relationship to begin the deal making process.  I have received several compliments from BA executives when applying this method.  Most of the time, the BA executive is simply given a directive from their employer to get a deal done within certain parameters.  Our jobs, as talent/producer/EP representatives, is to push the parameters while not breaking the deal or creating an unhealthy rapport with the BA executive.  

Tip #3- Getting to a “YES” is based on maintaining an open door communication with the BA executive, being responsive and available on the BA’s timeline and managing the BA’s expectations in a way to better gain support to benefit your client. 

Here are some examples of what terms will be negotiated with the BA executive:

- Fixed Compensation, including upfront fees and options fees.
- Deferred Compensation, including a statement about whether anyone else is eligible to receive the same. 
- Backend Compensation, including how that is defined and how it is paid.  Be sure to find out if there is a CAMA.  
- Term of Services.  This may be number of days an artist/producer will be on set to how many seasons a producer/executive producer will be locked for a television series. 
- Credit, including placement, how many episodes, paid advertising and treatment.
- Creative/Business controls.
- Attachments.  Are there any other persons to be attached to the project or is your client serving more than one position (i.e. client will serve as writer and producer)?
- Renewals of options (TV/New Media).
- Spinoff/Derivative Rights.
- Reversion.  What happens to the project if it’s never produced? 

Other Consideration to the Deal:  With regard to compensation, when negotiating with BA, you should have the following pieces of information at hand, which may give you more leverage when negotiating for your client: 
- Prior quotes.
- Credits.
- Success of past projects. 
- Control.  Creative vs. Business. 
- Timeframe. Consider the timing of your deal vs. television pilots selling time period almost over.
- Leverage of the artist’s representation and/or the relationship between the talent and the producers.
- Be creative in negotiating several different ways to get compensation.  The types of compensation that are available include up-front monies, such as salaries; use fees, including a series sales bonus, pick up bonuses, use fees, options, royalties, or residuals; and back-end payments, such as contingent compensation.  

Tip #4- Back end participation (sometimes referred to a contingent compensation) can mean nothing or as much as hitting the lotto.  Some of the most heated negotiations I have been involved in surround defining “Net Proceeds”; be sure to be diligent in clarifying how that definition will apply to my client.  

Once you are done with the BA executive, you will most likely then be pawned off to the next department, which is Legal Affairs.  There, you will be working with another person, most likely an attorney at the company, where you will get into the long form contractual negotiations.  Long form contracts are an entirely different subject and will be covered in a future article. 

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.

 

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

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.

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.

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.

 

 

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 2^ndweek, 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 4^th 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 7^thSeason 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

 

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!       

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.

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.

2012 Catalina Soiree in celebration of the Catalina Film Festival

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.