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.

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.

 

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.

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.

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.

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.

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.