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

Monday, July 16, 2012

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

By: Steven G. Kaplan and Patrick Bowers

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

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

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

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

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

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

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

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

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

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

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

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

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