I review a lot of entertainment contracts in my practice of all sorts. Screenwriter Option Agreements, Film Distribution Agreements, Music Contracts. And before I ever start looking at a contract, I always have one simple question for the client. And it’s not, “How much money are you being paid?” or “What rights are you giving away?” or anything like that. These things are important but they are not the most important factor. The first question I always ask is this:
Who Are You Making A Deal With?
Because it doesn’t matter if the contract sounds like a good deal if the other side cannot deliver on their promises.
If you’re a screenwriter optioning your script, has the other side ever successfully produced a movie?
If you’re a film producer making a deal with a distributor, have they distributed similar movies that made the filmmaker (not just themselves) money?
Does the person on the other side of the deal have a reputation for being fair and honest, or for being a crook?
Many entertainment contracts are based on the premise that you will get paid a certain amount in the future ifcertain things happen first. In the case of an option agreement, the optioning party has to first sell the script. If it’s a distribution agreement, the distributor has to first sell the film. So, it doesn’t matter how airtight the contract seems if the person on the other side is incapable of delivering on their side of the bargain.
Before entering into any contract, do as much research as you can about the company on the other side. Look them up on IMDB.com and see what projects they’ve been involved in. Have they made recent deals? I’ve looked at contracts where the producer on the other side hasn’t made a movie in 20 years. Do they work in the same genre? If you wrote a hardcore slasher movie, it doesn’t make sense for you to make a deal with a company that is making rom-coms for the Hallmark channel.
Then, to the extent you can, try to reach out to filmmakers that these companies have worked with and see if they would recommend it. If you are making a deal with a distributor, they will have a list of represented films on their website. Use IMDB to find the directors and producers and reach out to them on social media. Obviously, if the company is distributing Spielberg or Scorsese movies, then you don’t need to do that. But, most likely, the company will mainly be distributing low-budget films from up-and-coming directors (like you) on their website. Reach out to them and see what they say about the company.
I can help you get the best contract available. But I can’t help you if the company you’re dealing with is incapable of getting you what you deserve.
Congratulations! You have been given an entertainment contract. Whether, it’s because a producer is optioning your new script, a record company has given you a 7-album deal, or a network is signing you up for a pilot (and six seasons of a series if the pilot is picked up), you have questions. You are looking at this (possibly very thick) contract and wondering, “what am I supposed to do now?”
The first question you are asking yourself is maybe, “Do I need a lawyer to look at this?” Well, if you’re doing a small part on a television show, maybe not. But, if this is a long-term agreement, or you are selling that screenplay that represents two years of hard work, then yeah, it is probably a good idea to have an attorney review it. Even if you think you can’t afford an attorney, try to find a way. An attorney may be able to get you some more money up front so the work may not end up costing you anything out of pocket. And a good attorney will almost certainly find things in the contract that could cost you a lot in the long run.
If you already know that you need an attorney to review the agreement, then what do you do. Do you just hand it over to the lawyer and let her do her magic? No. For the lawyer to give you the best representation, you need to do your work as well. The main thing you must do, even before you give it to the lawyer is to read it yourself, from top to bottom. While your reading, make notes (if you have it in Word, then just add comments directly to the document). Here are some things to look for in the agreement when you review it.
First, does the agreement accurately reflect the terms of the deal? If a producer promised you that he would pay you $250,000 for your screenplay, is that what it says? Does the contract accurately reflect the time period that was agreed upon? Many times, between the producer making the deal and her lawyer drafting the contract, things are missed or left out. Sometimes it’s intentional, but most times it’s not. It’s up to you to check and make sure that everything that was discussed made its way into the agreement. Your lawyer is often coming to the deal after the main terms have been discussed so she doesn’t know whether you and the producer agreed on a certain item. You need to make a list of what you think should be in the agreement and double check that it’s all there. Because once that contract is signed, anything not included will not be part of the agreement.
Second, are there provisions in there that you want to change? Besides asking for more money (always high on everyone’s wish list), are there other terms that you don’t want or can’t abide by? Mark them and ask your attorney about what can be done. Sometimes, especially in acting and directing agreements, the contract will have dates listed on which you will be available. But if you already have professional conflicts on those dates, you need to let your lawyer know so this can be addressed early on and see if the schedule can be changed. Other times, the producer may include provisions that seem much more burdensome than you want to agree to (oh, you don’t want to give up your first-born child if they give you the role?). If you feel the agreement is asking too much, be sure to let your attorney know. Producers may not agree to all your requests, but it never hurts to ask. And the lawyer will not automatically fight with the producer about each provision without you letting him know where the problems are. Sometimes, you need to pick your battles.
Third, are there provisions in the agreement that you just don’t understand. If so, highlight them and discuss them with your attorney. This agreement lists obligations that you are bound to do or not do. It’s important that you understand them. Don’t be afraid or embarrassed to admit that you don’t understand certain provisions. I wouldn’t have understood many parts of a contract before I went to law school. Understanding the provisions and why they are included, will help you throughout your career because you will know what to do if they are included and whether you should fight to have them changed or excluded.
Finally, are there provisions in the agreement that don’t seem to make any sense or apply to your contract. Lawyers drafting these agreements almost always are working from previous contracts. It is VERY common that when redoing the contract for you, they will leave in a provision that has absolutely nothing to do with your situation. Or they will forget to change the name of the project all the way through. When you see something like that, just flag it so your lawyer can make the change.
Working with a lawyer is very much a two-way street. You don’t just want to hand the contract to them and leave them guessing as to where the real problems are. Follow these steps, and the contract negotiations will go much smoother and with a better chance of getting what you want.
The hit movie Green Book is the feel-good movie of the season. Winner of three Golden Globe Awards last week, including Best Picture – Musical or Comedy and Best Screenplay, the movie tells the supposedly “true” story of the friendship between the great African-American pianist Dr. Donald Shirley and the white New Yawk driver, Tony Vallelonga (aka Tony Lip) he hires to be his chauffeur and bodyguard on a tour of the South in 1962.
The screenplay was co-written by Nick Vallelonga, Tony’s son, who says that he wrote the script based on the stories told to him by his dad. Reportedly, Nick repeatedly tried to get Dr. Shirley permission to make the movie while he was alive, but was always refused. However, once Dr. Shirley passed away in 2013, Nick no longer needed his permission.
Why is that? Because dead people (or their families) cannot sue for defamation (which only applies to people who are living), and right of publicity laws don’t apply to expressive works protected by the 1st Amendment (as Olivia de Havilland recently learned.)
Therefore, Universal could go ahead and make the movie without fear of being sued. Right? Not so fast. While it is true that no one can sue over Dr. Shirley’s portrayal in the film, another problem has developed. Which is that Dr. Shirley’s family have come out strongly against the film. Donald’s brother, Maurice, sent out a scathing statement stating in part, “This movie, “The Green Book” is NOT about MY brother, but about money, white privilege, assumption, and Tony Lip!”
While there was a backlash to the film from the time of its release, the criticism of the family, along with the recent revelation that Nick Vallelonga put out a horrible anti-Muslim tweet in 2015, is almost certainly going to play a significant part in the minds of Academy voters who are presently deciding which films will get nominated. My guess is that this controversy will almost certainly cost it a screenplay nomination.
So, what is the lessons that producers should take from this situation? If you are making a movie about a dead celebrity, and you don’t get the person’s family involved (and/or pay them some money), they will be out there bad talking your movie. If you are making a movie like Vice, about Dick Cheney, then obviously you’re not going to go get the family’s permission (yes, I know Dick Cheney isn’t dead, but you get the idea). But, in a situation like this, one can see how this could have been handled better. Had Universal put $100,000 in the budget to hire Shirley’s family as “consultants,” they could have avoided all this bad press. Considering what Universal is paying for the Green Book awards campaign, that is a small price to pay.
If you’re a producer, it’s just something that you need to keep in mind. How much is it going to hurt the film if the family is out there talking trash about the film? Even though it is not legally required, it is sometimes not a bad idea to pay the family something to keep them happy.
By now, you’ve probably heard the news. Epic Games, producer of the wildly popular Fortnite game, has been sued by at least three different people, for copyright infringement and right of publicity violations. Fortnite, which is a free shooter game, makes money by allowing players to buy skins, outfits and emotes, which are short little moves like this:
The items sold on Fortnite provide no competitive advantage, but a recent study showed that 69% of serious players have purchased things in the game, with the average player spending almost $85. That explains how Epic is currently earning hundreds of millions of dollars each month, for “products” that cost Epic virtually nothing to produce.
Many of the Fortnite emotes are based on popular dance moves, and so some of the people who “created” those dance moves have filed lawsuits, claiming that Epic infringed their copyright by including these dance moves in the game without their permission. (I put “created” in quotes because whether some of these people actually were the first to come up with these moves is highly debatable).
The first of these lawsuits was filed by the rapper 2 Milly over his “Swipe it” move:
This was quickly followed by a lawsuit from Alfonso Ribeiro over the inclusion of a dance he first did while on the TV show “The Fresh Prince of Bel Air” called “The Carlton Dance.”
And then a third lawsuit by Russell Horning aka The Backpack Kid, who claims that Epic stole his dance move known as Flossing (Note: although stories have said the lawsuit was filed I could not find a complaint online).
I think we can take it as a given that Fortnite did put these moves into the game because of the popularity 2 Milly, Ribeiro and the Backpack kid brought to these moves. But the question here is whether they should be able to sue for copyright infringement for the use.
As a legal matter, there are just no cases that have decided the issue over whether a dance move this short can qualify for copyright protection. Choreographed works are eligible for copyright protection, and the Copyright Office put out a circular on the issue of what is protectable and what is not. It states:
Commonplace Movements or Gestures Individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet. The U.S. Copyright Office cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive.
For copyright purposes, choreographic works are a subset of dance and are not synonymous with dance. The drafters of the copyright law also made clear that choreographic works do not include social dance steps and simple routines. Registrable choreographic works are typically intended to be executed by skilled performers before an audience. By contrast, uncopyrightable social dances are generally intended to be performed by members of the public for the enjoyment of the dancers themselves. Social dances, simple routines, and other uncopyrightable movements cannot be registered as separate and distinct works of authorship, even if they contain a substantial amount of creative expression.
It is abundantly clear to me that based on these statements that the Copyright Office would not register any of these dances for copyright protection. They are both too short to qualify, and would be considered to be “social dance steps . . . intended to be performed by members of the public for the enjoyment of the dancers themselves.” Indeed, the fact that there are so many videos on YouTube of people trying to dance the Floss or Swipe It, shows that these are performed for the dancers’ enjoyment.
Moreover, I don’t think that most people rooting for the plaintiffs have thought through the serious implications of allowing dance moves this short to qualify for copyright protection. A copyright holder owns many exclusive rights, including the exclusive rights to reproduce the work, to create derivative works and the right to perform the work publicly. 17 U.S.C. Sec. 106.
If a court rules that these short dance moves are copyrightable, it would mean that no one could perform these dances in a commercial setting, or place videos of themselves doing the dance on YouTube, without risking the threat of a lawsuit for copyright infringement. I grew up watching American Bandstand and Soul Train. The dancers on the show would always try out the latest steps, and this is how (in the days before YouTube), that dance moves would spread from town to town. Starting with Chubby Checker and the Twist, and moving on to the Frug, and the Swim, and on to Van McCoy’s Hustle, the dances spread because anyone was free to use it.
If any 2-second dance move was considered copyrightable, it would destroy dance as we know it. Any Soul Train like show would have to police its dancers to make sure that none of them performed any of these now copyrightable routines. Because allowing the TV camera to show a dancer doing these moves would risk a lawsuit. And if a kid uploaded a video of himself doing the Floss, then the Backpack kid could tell YouTube to take it down for violating his exclusive rights under copyright.
I’m sure that most of you reading this have seen this YouTube video Evolution of Dance. Watch it again and ask yourself how many of the dances in this video would be protectable under the standard being asserted by 2 Milly and Ribeiro’s lawyers.
Now imagine a world where all of those dances are no longer free to use, but can only be performed by getting permission and paying the “creator.” That is the logical result of the Plaintiff’s position. So, this is not just about Fortnite and selling dances in games. This is about the future of dance.
I will be speaking this Thursday (11/27) at the New Playwrights Foundation on the “10 Ten Legal Tips Writers Need to Know To Avoid Getting Ripped Off.”
If you would like to attend (it’s free), it’s at 7:30 p.m at 201 Ocean Avenue, Terrace level (3rd Floor). Please RSVP to firstname.lastname@example.org.
Here’s an interesting story if you are as big a fan of Stephen King as I am. Stephen King has quietly filed notices that he intends to terminate the transfer of his licenses for the movies, The Dead Zone, Cujo, Creepshow, Children of the Corn, Cat’s Eye, and Firestarter. The termination notices were mailed on August 31, 2016, and will be effective as of September 1, 2018.
I will be moderating a great panel for the Beverly Hills Bar Association on the copyright termination case involving the Friday the 13th film. For those of you who know my past with the Friday the 13th series, this will be a terrific learning experience for lawyers on what they need to know about copyright panel. Also on the panel are Marc Toberoff, Michael Lovitz and Aaron Moss. It’s May 10 at noon at Lawry’s restaurant. Sign up and more information here http://bit.ly/2ohyqC8
If you file for a trademark with the United States Patent & Trademark Office (“USPTO”), you will probably be the target of this common scam. Don’t fall for it.
Scammers routinely monitor all new filings at the USPTO and will send out official-looking invoices which purport to be a charge for a trademark registration. They are typically from foreign countries, although not exclusively so.
I’ve copied one below so you can see what they look like.
These are nothing but scams. There is no real company called Trademark & Patent Publications and they are not offering you anything. They are simply trying to take your money. Another common scam is a letter that says that you need to file the identical trademark in China and they will do it for you for only $2500. Also a scam.
Anything that has to with your trademark will only come from the USPTO. Hopefully, when you filed your trademark, you gave permission for the Trademark Office to contact you by email. If the email address does not have a uspto.gov address, it’s not real.
You can also check the status of your trademark application online at any time by clicking this link which allows you to search by the name of the mark, serial number or owners name.
Once you find your application and click on it, you can check the status by clicking on the blue “TSDR” box at the top left. By clicking on the “Documents” tab, you will see all the documents that are associated with your application, filed by you or by the trademark examining attorney.
Good luck and thanks for reading.
Note: The Application Number and Mark were changed to protect my client’s privacy.
I just filed a lawsuit against Apple and Media Arts Lab for using my client’s voice in an iPhone commercial without his authorization. Here’s a nice write-up about the case from the Hollywood Reporter.
Four years ago, I uploaded a video on YouTube walking through the process of registering a screenplay with the Copyright Office. You can watch it below if you want.
Over the years, I’ve had a number of people ask me questions on the YouTube page about the registration process. Rather than have you scroll through the questions and comments on the YouTube page, I though it might be useful to collect them and answer them here. I hope you find it useful.
Q: What format should I use to upload the script?
A: I would strongly recommend filing in PDF format because it is the format that will almost certainly still be used going into the future. But they will take TXT or DOC. I would not use proprietary Final Draft or Movie Magic formats because they may not be supported in the future. Both programs will allow you to output to PDF.
Q: Do I need to wait until I get back the registration certificate before submitting my script?
A: No. When you receive the certificate, it will be dated on the date you filed. So there is no need to wait.
Q: Does the script have to be in industry format?
A: No. The Copyright Office does not care about format. But if you are not using a screenplay program and want to learn about format, I would highly recommend buying The Hollywood Standard which is a really good way to learn proper scrip format tips.
Q: If I rewrite the script, do I need to register it again?
A: You’re not required to, but if your rewrites were extensive, it’s not a bad idea. Remember, if your script is infringed, the copy of the script that’s deposited with the Copyright Office is what will be at issue. You don’t need to re-register if the changes are minor. But if you feel that the changes are major enough that it warrants a new filing, go right ahead. Remember that there is a page in the application that will ask about previous registrations. So on that page you will disclose the prior script and describe the changes that you made in the new draft.
Q: Should I also register the script with the WGA Script Registry?
A: NO! The WGA Script Registry is just a scam to take your money. Read this article for the reasons why.
Q: Is there anything else I should do after filing the registration?
A: Yes. Email yourself a copy of the script using a service like Gmail or Yahoo that should be around for a long time. Title your email, “Copy of Screenplay registered with Copyright Office.” That way, even if your computer crashes or your house burns down, you can always easily find your script by searching your Gmail records.
Q: Can I file even if I’m not a U.S. citizen or resident?
A: Yes. You can file no matter where you live or your citizenship. However, the benefits of U.S. copyright registration (e.g., statutory damages, attorney’s fees) only apply if you are filing a lawsuit in the U.S. Other countries have their own laws regarding these issues.
Q: Is there a way to save my information to make it easier to file subsequent registrations?
A: Yes, there is. When you are done preparing your first application (on the “Review Submission” page), you will see a button at that top that says, “Save Template.”
Click that button, name your template (e.g., “My Screenplay Template) and it will save all the information in your application. The next time you want to register, at the first screen, click the “Use a Template” button on the left and then select your template.
Everything will be all filled out. You just make the changes you need, such as the title of the work and the year of completion, but most of the pages will be already filled out.
I’m a lawyer in Los Angeles whose main emphasis is copyright, trademark and entertainment law. I handle both transactional and litigation matters. If you have questions that you would like to see answered on the blog, please send an email to Larry@ZernerLaw.com.
For more information about me and my firm, visit www.ZernerLaw.com. You can also reach me by phone at 310-773-3623.