Showing posts with label tifanie joudeh. Show all posts
Showing posts with label tifanie joudeh. Show all posts

Tuesday, August 1, 2017

Show Me NO Money: Is Paying Zero for an Option Legal?


By:
Tifanie Jodeh
Andrew Keyes
Heather Lanter

As entertainment business professionals, many of you have probably entered into agreements without exchanging money. Many producers option life rights or book rights without paying for the initial option. Is this legal? YES!

The following hypothetical situation will help you to understand why a contract where no money changes hands can be a valid and binding agreement: 

Producer meets with well-known Model who wants to create a film about her life story. Producer doesn’t have the money to pay for Model’s life rights, but in lieu of money, the Producer agrees to shop her life story to a film studio. Model and Producer enter into an option agreement. Producer spends the next five months shopping Model’s life story to every studio in town. In the meantime, Model speaks with Studio Executive, who also wants to make the movie at his studio without Producer’s involvement. Model prefers to work with Studio Executive instead. To get out of the option agreement with Producer, Model argues that the agreement isn’t valid because she didn’t get paid for the option. In legal terms, Model is arguing the option agreement has no “consideration”. Is Model correct? The short answer is NO.

Of all the elements required to make a contract legally binding, consideration can be the most difficult to understand. In simple terms, consideration is a bargained-for exchange of valuable promises between the parties of a contract. It can take the form of physical items, such as a puppy or a diamond ring. It can also be money or simply a promise to act. One of the most famous cases illustrating consideration is Hamer v. Sidway, 124 N.Y. 538, 27 N.E. 256 (1891), where an uncle agreed to give his nephew $5,000 on his 21st birthday if the nephew promised not to drink, smoke, swear, or gamble. When the uncle died and the estate refused to give the nephew the $5,000, the court held that the exchange of promises between the uncle and his nephew was valid consideration. Therefore, the uncle’s estate had to pay the nephew $5,000. This case shows that even a promise not to do something can be consideration. The most important aspect of consideration is that there is bargaining between the parties.

Returning to our hypothetical, the question is whether there was valid consideration for the option agreement between Model and Producer. What is Producer giving? He is giving his time, efforts, expertise, and connections, which will be used to get the film into production. What is Model giving? She is giving Producer the exclusive right to shop her life story to film studios, which both parties hope will lead to a lucrative blockbuster picture. Since Producer and Model are each giving and getting something, there is valid consideration between them to make their option agreement binding.

Though we highly recommend that you put down money as consideration for an option agreement, even as little as $100, know that a promise to act will also make a good argument for consideration.


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.

Monday, April 11, 2016

How to Register your Work- WGA vs. Copyright Office?

By: Tifanie Jodeh

Throughout my career, I have had the unfortunate experience in receiving calls from writers, producers and directors informing me that their work has been copied or used without their permission.  My very first question is to ask if the work had been registered.  Almost 80% respond in the negative! That's not only damaging to your rights in protecting against the unauthorized use, but it becomes very personal to the writer as the work is his/hers’ “baby”.  

Do not let this happen to you!  Let us help protect your “baby”. 

Hence, I make a call to action for all of you writers, producers and directors out there!  You need to protect your scripts, stageplays, novels, drawings, pitch presentations, poems, short stories, films, sizzle reels, webisodes, treatments and the like!  The expense in doing so is far outweighed when compared to the realities of the options available to you otherwise. 

Our office offers fast, reliable, inexpensive and competent registration services of your work.  Register your work today!

FAQ:

Registration- WGA vs. Copyright Office?
Registering with the Writers Guild of America is useful because it creates a public record of your claim to authorship.  The registration is simple and response time is faster than that of the Copyright office.  There are actually two separate guilds, the WGA west and WGA east.

Is it better to register at one guild over the other?  The WGA east has a fee for non-members that is $2 more, but it keeps registered work on file for 10 years as opposed to the 5 years you get with the WGA west.

Note, that the WGA registration is available for written specimens only.  In other words, you cannot register audio-visual works such as a film, webisode or sizzle reel.

Though WGA registration is less expensive, quick and convenient, do not believe that it is a substitute for registering your work with the U.S. Copyright Office.  Plus, for those of you with audio-visual works to protect (such as a sizzle reel, movie trailer or motion picture), copyright registration is your only protection! 

Copyright registration offers additional benefits:
  1. Registration lasts for the life of the copyright; meaning the author's life plus 70 years.
  2. You can seek federal statutory damages and reimbursement of legal fees rather than just "actual damages and infringer's profits" that you might otherwise receive.
  3. Your work is protected to the fullest extent of the law, worldwide.
  4. Proof of chain of title.  Studios, distributors, sales executives, producers and executive producers often require proof of copyright registration before your project can be "greenlit" for production.
  5. The rights will be able to pass to heirs in a will, living trust or through intestacy.
Is there a downside to registering with the Copyright Office?  It costs more and it generally takes longer (approximately four to six months) to receive the official certificate. The processing time is somewhat negligible because the registration is time/date stamped at to when the work was filed and, therefore, you can claim copyright registration “pending” in the meantime.  Copyright protection is deemed effective as of that date.

Should you register with both a WGA branch and the Copyright Office?  There’s no need. I have had clients ask me to do both, which, given that the fees involved are nominal there’s really no harm in additional records of protection available to you.  However, as between the WGA and the Copyright office, I recommend 100% go the Copyright Office route. 

Fees?  We help you bypass the complex and expensive process of registering your work on your own. Our fees range between $69-120 depending on the type of application. Additionally, filing fees are $10 for WGA members at either guild, $20 for non-members at the WGA west, $22 for non-members at the WGA east.  As for the copyright office, a fee is between $35-$85 (depending the type of work it is) will give you the satisfaction of full governmental protection. I recommend having someone like me, an entertainment attorney, oversee the application, as it can be complicated depending on the work being registered. 

Notices?  If you register a script with the WGA, make sure to state "WGA Registered" notice on the title page.  Once the certificate is received, Copyright notices consist of three parts, placed in any order: the word "Copyright" or the copyright symbol, the name(s) of the copyright owner, and the date the material was copyrighted (created).

When you register your work, you can be assured that your it is properly protected to the fullest extent of the law.  By using our legal service, you’ll also benefit of our expertise in the entertainment industry. 

COPYRIGHT and 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.




Wednesday, January 13, 2016

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.

 

Friday, August 28, 2015

Clear It or Ditch It!

BY:  Tifanie Jodeh

The script, all script revisions, and every item to be used as a prop and/or set dressing must be cleared.  

Rule of thumb:  You either clear it or ditch it!  This rule of thumb should be applied to each and every clearance issue and item under review for use in a film.  It's best (and cheaper) to do this BEFORE you start shooting.  If you aren't able to get it cleared, then you know not to use it.

I recently conducted clearance review on a film (already shot) and identified for the producers some items which had clearance exposure and risk.  One particular troublesome issue was the use of a major airline's webpage in a scene.  The use of the website was a key point in the scene.  While I was successful in obtaining permission for the use, it took approximately 1 month to get all the required approval from the airline and a volume of correspondence regarding the use of the airline's logo in the scene and in the film.  

“Clear” means:  for script elements (discussed below) that, following legal review and research, that there are no legal issues, or in the case of other items (as discussed below), that proper written authorization has been obtained for the use. 

Below, find a list and examples of the most commonly items cleared in a film:

Literary Works:  Literary works, which include books, short stories, film, television programs, art work, fine art, still photos, among other things, must be licensed.  

The Script:  All drafts of the script and any material revisions needs to be researched by a professional script clearance company and reviewed by your attorney who will provide recommendations for changes to the script in order to avoid exposure. 

News and/or Stock Footage:  News organizations can license the footage that they have shot at press conferences to other entities.  But, any people who appear in the shot, for example a news anchor, will have to be separately cleared.  

Locations, Buildings, and Installations:  Examples Include:  Parks, cemeteries, office buildings, promenades, and homes.

Photographs:  Still photos fall into several categories:  These include:  Publicity Photos (photos for publicity in a film); Production Stills (photos taken on behalf of the production on the set of the motion picture or TV); Film Posters; Paparazzi Photos; and Magazine Covers, Website Front Pages, Book Covers involve three layers of clearance: 1) the magazine, 2) the photographer who took the photo and 3) the person who appears in the photo.

Music:  Hire a good music supervisor!  No on-camera use of music in any form (including humming, whistling, reciting of lyrics in dialogue or otherwise) can be used unless it has been cleared.  To the extent non-original music is used, the music supervisor or whomever may be required to obtain two forms of licenses:  Synchronization license and Master use license. 

Apparel/Products/Logos:  Featuring a product, service logo or trademark (a Nike logo on a shirt) must generally be cleared.  If a product has not been cleared, then caution must be exercised as to how it is used in the film, it cannot be featured or used or referred to in a derogatory manner.  Items such as groceries (Coolwhip), candy (Willy Wonka), chips (Doritos), drinks (Red Bull), health (Advil) and beauty products (Maybelline) should be cleared or created as something original by the props department. 

Props/Production Design:  Examples include: Publications (magazines, newspapers, book, articles); Paintings and Fine Art; Posters, Record Covers and CD Covers; Graffiti and Tattoos; Games, Weapons, Vehicles and Toys; Logos and Trademarks.

Motion Picture/Television Clips:  It is recommended that any excerpt from a feature film or television show must be licenses from the copyright holder and an agreement negotiated for payment for use of the clips(s).  Note here that special consideration must also be taken for SAG/AFTRA and/or DGA reuse rights of any actor appearing in the clip.  
 Youtube/Online Clips/URLs/Websites:  It is a misconception that because these online sites are public, that the content is open and free to use.  In fact, this is not true and permission should be obtained.  

Contact our office with any questions or production legal needs you may have.  We are available for phone consultations by appointment.  Contact 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.



Thursday, April 30, 2015

Raise money under the SEC's New Regulation A+

All the things you can do to raise money under the SEC’s New Regulation A+  since the SEC extended an exemption policy for smaller issues as required under Title IV of the Jumpstart our Business Startups ("JOBS Act").

Highlights:
1.  General Advertising and Solicitation Allowed (including internet and social media)
2.  Raise up to $50 million
3.  All investors whether accredited or unaccredited
4.  No requirement to verify investor status
5.  No limit on amount of investors
6.  Easier SEC registration process (Tier I)
7.  Avoid State Blue Sky Filing requirements (Tier II)

On March 25, 2015, the SEC adopted final rules implementing Title IV of the “Jumpstart Our Business Startups Act” (the “JOBS Act”) by amending SEC Regulation A to make two new exemptions for securities offerings by private U.S. and Canadian companies, which is now known as Regulation A+.

The SEC released a statement that:
"The updated exemption will enable smaller companies to offer and sell up to $50 million of securities in a 12-month period, subject to eligibility, disclosure and reporting requirements."

These exempt offerings are referred to as Tier 1, for offerings of up to $20 million annually, and Tier 2, for offerings of up to $50 million annually. 

Tier 1, which would consist of securities offerings of up to $20 million in a 12-month period, with not more than $6 million in offer by selling security-holders that are affiliates of the company issuer. The increase in the offering maximum amount from $5 million to $20 million could make capital raises under this alternative more attractive to a number of companies in need of capital as the cost of preparing an offering memorandum can be a smaller amount to that of the offering size.  

Tier 2, which would consist of securities offering of up to $50 million in a 12-month period, with not more than $15 million in offer by selling security-holders that are affiliates of the issuer.  The new Tier 2 creates a form of "mini-public offering" with a number of reporting requirement that resemble those of a normal full fledged offering, for example, two years of audited financial statements and the new periodic and current reporting requirements.

The rules limit the amount of securities that can be sold by selling shareholder at the time of the company issuance of its first Regulation A+ offering and during the 12 months following to no more than 30% of the total offering price of any instance of that offering. The registration process is done online via the SEC’s program called EDGAR. Tier 2 offerings are exempt from state blue sky laws and Tier 1 offerings are not exempt.

The new SEC regulations are complex and often technical.  The foregoing article should not be taken as legal advice or presupposes that all of the information is included with respect to any particular company’s or individual’s circumstances. 

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.



Monday, July 21, 2014

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.



Tuesday, May 6, 2014

Endorsement Deals- What is a Morals clause?

It is an ongoing newsworthy story when scandals relating to stars, such as Paula Deen, Lance Armstrong, and Tiger Woods, who make high amounts of money in endorsement deals simply by being public figures, are ripped away from their endorsement deals in the blink of an eye. Many of you may wonder how it is so easy for product placement companies to legally bid "adieu" to endorsement deals with their celebrities.  

Endorsement agreements between companies (such as Walmart, Macy's, Verizon, and Nike) and celebrities can be high profit, high volume business ventures.  These companies rely on the persona and high profile image of their endorsers to positively attract attention to their products.  This could be either endorsements of a particular product, say, Taylor Swift for Diet Coke, or for an entire company such as Adam Levine for Proactiv. 

One of the most important tools for any company to have is the ability to protect their brands and intellectual property.  In order to achieve this protection, companies include very specific clauses in any endorsement contract which are intended to give companies the ability to terminate the endorsement and even possibly recoup payments previously rendered to the celebrities.  Morality clauses are deeply negotiated because, on one hand, the celebrity wants as much specificity as possible when having their behavior judged while companies want to judge and interpret the contract in a fluid, sole discretion manner.  A well drafted morals clause clearly delineates the standards of conduct and what the repercussions will be if the endorser's actions are out of line.  Clear trigger points and adherence to the company's code of conduct and/or company policy is a good starting point to drafting the morals clause in an endorsement contract.     

What happens if a company feels that their celebrity endorser breached the morality clause?  A company's course of action not only affects its current business but its societal position. After evaluating the violations that took place, it is up to the company to decipher termination vs. reaction from the public.  It could be as small as doing nothing and letting the incident die off to as much as making a public statement against the celebrity and terminate the agreement. 

An entertainment attorney can play a crucial part in the negotiation and administration of a deal.  The deal making process needs to be understood by knowing what the company needs from an endorser and having a practical handle on what a celebrity can deliver.  

Marketing is an integral piece of both a celebrity and company's success.  It is in the interests of both parties to maximize their brands and add value in order to gain a high presence in public commerce.  Neither party wishes to have the morality clause triggered, but if it does, the clause should be specific, clear and encompass the company's best business practices and protect the celebrity's persona. 

COPYRIGHT and 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.


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.

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