Oral Arguments on the Batmobile Case

Mark Towle runs a business selling replicas of famous cars from television shows and movies. For the past three years, I’ve been defending Mark Towle in a lawsuit brought by DC Comics over Mark’s sale of reproductions of the 1966 Batmobile and the 1989 Batmobile.  While many people think that the sale of Batmobile’s is per se illegal, Congress specifically excluded the design of automobiles from copyright protection.

On Thursday, February 5, 2015, I was able to argue this issue to the 9th Circuit Court of Appeals.  Here’s an article on the case from the Daily Journal to give you some background, and you can watch the oral argument below.  We should have a decision on the case in a few months.

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LARRY’S FAVORITES OF 2014

Hey everyone.

It’s the end of the year and so it’s time for me to give my picks for what I liked the most in the year.  This is not the “best” of 2014, just what I particularly liked.  Also, a few of these things were from earlier than 2014, but I just got around to seeing them.

First, let me just thank all of you who read my blog this year.  Copyrights and Wrongs had over 25,000 page views this year, a 20% increase from the prior year.  I really appreciate that people are reading and engaging with the blog and sharing posts with their friends.  Sometimes, I will check my site traffic and see that I got a huge spike in page views for the day and I can tell it’s because someone shared a post on Facebook or Twitter.  That’s always great and, if you think your friends would appreciate the thoughts in the blog, please feel free to send it on.

I hope everyone has a safe, healthy and prosperous 2015.  Now, on to the list.

FAVORITE MOVIE OF THE YEAR

This one was pretty easy.  When I go to the movie, one of the most important things that i want is to be surprised and Whiplash delivered that in spades.  This story of a young drummer (Miles Teller) looking to be the next Buddy Rich going up against the drill instructor conductor (J.K. Simmons) kept me on my toes and had lots to say about the nature of art and the lengths that people will go to achieve success.  If Simmons doesn’t win the Oscar for Supporting Actor, I will eat my hat.

Other favorite movies – The Grand Budapest Hotel, X-Men: Days of Future Past, Birdman, Selma

Most underrated performance of the year. Essie Davis in The Babadook.  I liked, but didn’t love the movie, but Davis’ performance as a mother going unhinged was truly great.  If Naomi Watts or Nicole Kidman had given the same performance, their would be no question they would be nominated, but because Davis is unknown outside of Australia, she is certain to be overlooked for this tremendous work.

FAVORITE THEATER OF THE YEAR

I got to do one of my favorite things in 2014 and that is go to New York to see theater (six shows in five days).  And, although I saw some great stuff (even Rocky: The Musical was fantastic), the best thing I saw was back at the Pantages in Los Angeles, and that was the revival of Pippin.

I have seen Pippin a few times over the years and think it’s a good, but not great musical.  But this revival, directed by Diane Paulus (who also directed the great revival of Hair a few years back) made the show fantastic.  Changing the musical into a circus added great pizazz to all the musical numbers.  And Andrea Martin, who won the Tony for Best Featured Performance in a Musical was jaw-dropping although she was really only in the show for about 10 minutes.  The revival just closed on Broadway but is still touring the country.  Go see it.

Favorite Theater Moment of the Year

The other great musical I saw in 2014 was 2012’s Best Musical “Once.” And no moment in theater got me happier than the number “Gold.”  Check it out from the 2012 Tony Awards.

Bonus fun fact: The older man in the lower left of the screen is David Patrick Kelly, better known as Luther (“Warriors, come out and play-a-ay!”) in the film The Warriors.

FAVORITE BOOKS OF THE YEAR

FICTION – The Martian  

I’m a big fan of science fiction and The Martian by Andy Weir is one of the best sci-fi novels in recent years.  An (almost) completely plausible story of an astronaut trapped alone on Mars and trying to survive and escape, the book is full of fascinating science and great characters.  Weir self-published the book on Kindle and now it’s going to be a movie starring Matt Damon.  You will not be disappointed.

NON-FICTION – You Never Give Me Your Money: The Beatles After the Breakup

This book is actually from 2010, but I only discovered it this year.  Peter Doggett tells the story of the Beatles breakup from the perspective of the various lawsuits that took place both among the band members and with third parties.  As an entertainment lawyer, I found the behind-the-scenes machinations fascinating and if you, like me, are interested in both the Beatles and entertainment law, you will love this book.

FAVORITE MUSIC OF THE YEAR

This was an easy one for me because there was only album that came out this year that I listened to over and over again.  That album was Forever For Now by LP.  LP is the stage name of Linda Pergolizzi and I really don’t know why her album is not getting more attention.  Great songs, a fantastic voice, and a great presence, LP is my new favorite artist.  I’m really looking forward to see what she’s going to do in 2015.

Favorite Performance of the Year

Another easy one.  Future Islands performance of Seasons on the David Letterman show was the best 3:50 on television in 2014.  Check it out and tell me if you agree.

FAVORITE TELEVISION OF THE YEAR

This was the toughest category because there was so much great television this year.  I loved Mad Men, Game of Thrones, Homeland, The Newsroom, Transparent, Orange is the New Black, and House of Cards.  But for my favorite, I have a tie between Fargo and The Leftovers.

Fargo was just a fantastic story with incredible acting, led by Billy Bob Thorton as the evil but charming Lorne Malvo, and Martin Freeman as Lester Nygaard, the show just got better and better, week after week.

The Leftovers was something entirely different.  The first two episodes were kind of weak as they set up the strange plot of a world where 2% of the population has disappeared and how the remaining people deal with it.  But, starting with the third episode, the shows got more introspective and turned into perfect short stories on flawed people dealing with a horrible situation.  Episode 6 – “Guest” was my favorite, which follows Nora (the amazing Carrie Coon) as she travels to New York for a conference.  Always unpredictable, this show really moved me in ways that few other shows have.

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KNOW THE VALUE OF YOUR SCREENPLAY

One of the challenges new screenwriters face is that they tend to have a poor understanding of what their script is worth on the market.  As a result, they either ending up selling their script for much less than they should, or else put such a high price on it, no one would ever buy it.  Let me give you two recent examples of conversations I’ve had with clients to illustrate the point.

The first client, let’s call him Al, adapted a 20 year old mystery novel (not a best seller).  He had optioned the rights to the novel and was now looking to sell the package to a producer.  When I asked him how much he was expecting to get in the sale, he said that the script was so good, he thought it would be worth a $1,000,000. Now I understand that writers are proud of their scripts and think they are gold, but no one is going to give a first time screenwriter, without an agent, anything close to a $1,000,000 for their screenplay.  The only reason that a first time screenwriter can get a number in the million dollar range is because there are other producers offering $900,000.  But if there is only one producer bidding on your script, he’s not going to offer you anything close to $1,000,000 because he doesn’t need to.  When there is only one person bidding on your screenplay, they set the terms, not you.  You either take what they have to offer or your screenplay stays locked in your desk drawer.  That doesn’t mean you should roll over and sell it for $1,000 but you should adjust your expectations accordingly.  Otherwise, you will be waiting forever for the deal to get made.

The second client, call her Betty, called because a company had agreed to make a movie out of her horror script.  But the entire budget for the movie was going to be $100,000.  That meant that she would maybe get $5000 for her screenplay.  When I was talking to her about this, she told me that she thought that this was her best script yet.  I said to her, “If you think that this is your best screenplay, why would you agree to sell it for such a low price?”  She thought about it for a second and realized that agreeing to such a low number was nuts. After spending months and months of work on a screenplay, it just seems crazy to let it go for such a low price, especially when she hadn’t even attempted to try to sell it elsewhere yet.

The moral for both of these clients is that you need to have a realistic value of your script before you try to sell it.  Yes, there are writers who sell their screenplays for $1,000,000, just as there are people who buy winning lottery tickets at 7/11. Just because it happens doesn’t mean that you should expect that it will happen to you.  Especially if you haven’t got a high-powered agent to drum up business in your script.

The price of the script depends on a number of factors (e.g,. genre, budget, source material, etc.) but the number one factor is whether there is more than one producer who wants to buy it. Joss Whedon doesn’t get paid millions of dollars just because he’s a really good writer.  He gets that because there are a lot of producers who want to hire him.

On the flip side, if your plan is to make a living as a screenwriter, don’t price your script so low that a sale won’t even pay a month’s rent.  There is a happy middle ground between too high and too low, you just need to find it.

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IF A PRODUCER GIVES ME NOTES ON MY SCRIPT, IS HE NOW A CO-AUTHOR?

Question of the Day:

Larry,

About six months ago I sent my screenplay to an independent producer.  He said he liked it, but that it wasn’t in good enough shape to submit to studios.  He gave me a bunch of notes on improving the script, things like adding characters, deleting scenes, and suggested that I change the ending.  I wrote a draft that incorporated his changes and he said he liked it much better and would start shopping it around town.  But when I asked him about paying me for an option, he said he would only pay me $1.00 for a two year option.  Having read your post about free options, I told him I couldn’t agree to that and said I would take it somewhere else.  But now the producer says that because he gave me suggestions for the script, he is a “co-author” and I can’t take it anywhere without his permission.  Is that true?  Is he really a co-author?  What can I do about this?

Signed,  Pissed Off Writer.


Dear POW,

This is a question that I get fairly often and is something that plagues many screenwriters.  So let’s see if we can answer it.

For the producer to be a co-author, a joint work must have been created.  So what constitutes a “joint work.” According to the Copyright Act, a “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. 17 U.S.C.A. § 101.

When courts have had cases where they had to interpret this statute, they tend to focus on two things:  1) What was the “intent” of the parties, and 2) What was contributed by each party.

Here’s the good news, most courts that have dealt with this issue have held that in these situations, the producer is not considered to be a joint author.  That is because most people would agree that there is no “intent” by the parties to create a joint work.  Even if the producer says he intended to create such a work, the screenwriter is pretty adamant that he did not intend for a joint work to be created.  So, problem solved, right?

Not so fast.  Even if a joint work was not created, it could still be possible that the producer contributed copyrightable material to the script.  This would not be the case if the producer just gave general notes like “shorten that scene” or “change the ending.”  But there could be a situation where the producer actually wrote a scene and added it to the script.  Or the producer could have come up with a new character independently and instructed the screenwriter to put the new character in the script.  In cases such as these, even though there is no “joint work,” the producer could make trouble by claiming to be the sole owner of that character or the scene he wrote.  If he’s going to do so, the way to resolve it is to just remove those specific elements from the script.  Since you already had a draft of the script that existed before the producer got involved, you can just go back to the earlier draft and leave the producer’s contributions in the trash.

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SPEAKING AT COMIC-CON 2014

If you’re coming to Comic-Con 2014 (and I hope you are) I’ll be speaking at the Comic Book Law School panel on Hot Topics in the Law.  The panel is Saturday at 10:30 a.m. in Room 30CDE.  Please come and say, “Hi,” if you see me.

Here are the details:

In this session noted attorney Michael Lovitz, author of the classic The Trademark and Copyright Book comic book, brings you a panel discussion highlighting some of the most pressing legal issues and trends facing the creative and business communities.Professor Marc Greenberg and attorneys David Lizerbram, Larry Zerner, and Mark Reichenthal share their collective knowledge and insights while covering the following fascinating topics: contributory copyright infringement and Tarantino v Gawker; collaboration agreements between artists and writers; work-for-hire agreements for independent contractors; the case of Sherlock Holmes and the public domain; a review of the 9th Circuits decision involving Google/YouTube and the Supreme Court decision on the interplay of laches and statute of limitations in copyright suits. In addition, the entire panel will reflect on the Kirby v. Marvel appeal to the Supreme Court, and what impact the case could ultimately have on the comic book industry. Please note: The Comic Book Law School seminars are designed to provide relevant information and practice tips to practicing attorneys, as well as practical tips to creators and other professionals who may wish to attend. [This program is approved for 1.5 credits of California MCLE.]

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WHY ADAM CAROLLA DOES NOT NEED TO PUT GAFFER TAPE ON HIS NIKES.

I was listening to the Adam Carolla podcast this morning (as I do most mornings when walking my dogs) and Adam, as he is wont to do, began to rant. And this rant captured my attention because it had to do with legal issues and movies, two of my favorite subjects.

Adam was talking about shooting his movie Road Hard, and how he had taken a black marker and blacked out the Nike swoosh on his shoes, but the wardrobe department kept putting gaffer tape on his shoes to make sure that the swoosh was completely covered.  (You can listen to the rant here starting at 18:12.)  Adam was complaining about the fact that although the swoosh was gone, now it looked like his character wore gaffer tape on his shoes, which is just stupid.  But what struck me when listening to the rant was that even though Adam is the producer, writer, director and star of the movie, and even though he knew that there was no legal reason to block out the Nike swoosh, he just didn’t tell the wardrobe mistress to get away from him with the gaffer tape, clean the black marker off his shoes, and go on with making the movie without dealing with such nonsense.

Why does this happen?  When did filmmakers get the (completely wrong) memo that all trademarks need to be removed from their clothing (and presumably cars, refrigerators, toasters and any other products seen in the movie)?

First, let me make it clear to any filmmakers out there who are making a movie and are worried about having to dummy up fake brands of soda and ketchup to dress the dinner table, THERE IS NO NEED TO DO SO. So long as the character are simply using the product in the normal way it is intended (drinking a soda, wearing a shoe, driving a car), there is absolutely no need or requirement to block out the logos or the name of the product.  And it’s perfectly fine for characters in your movie to talk about products and places in the movie (“I’ll have a Coke,” “Let’s go to McDonalds,” “Where’s my IPhone?”)  For god’s sake, Pulp Fiction has a seminal scene in which the characters talk about nothing but the Burger King Quarter Pounder with Cheese.  

So, if it’s not required by law, how did this get started?  Well, one reason is that it’s a carry-over from reality television.  On most reality shows, logos get blurred out.  Again, this is not a legal requirement it’s because the show is probably sponsored by a food, drink, or clothing company and the network doesn’t want to risk pissing off a sponsor.  If the show gets sponsored by Pepsi, they are not going to be happy if everyone is drinking Coke, and vice-versa.  Since the producers of the reality show doesn’t usually know who the sponsors will be when filming, they play it safe and blur out all of the products, to avoid possibly problems down the road.

The same goes for major motion pictures.  Because of the possible cross-promotion opportunities, when making a big-budget blockbuster like Transformers or Iron Man, deals will be made regarding cars, clothes, watches, and other products seen in the film.  That will mean that the studio will sometimes agree not to show competing brands in the film.

But you, my loyal reader, probably don’t have those kind of concerns.  If you’re making your own movie, you probably do not have any sponsorship deals.  So don’t worry about covering up brands in your films.

I do have one small caveat to this rule.  If someone is going to use the product in an unusual way, then you may want to create a fake product.  For example, if someone in the film was going to drink a poisoned soda and die a horrible death, you might be better off mocking up a fake can, rather than using a Coke.  Do I think that if you did so you would be infringing Coke’s trademark? No, I don’t.  But, unless it’s critically important to the plot that you use a name brand, I would advise against it, just to ensure that you don’t get entangled in a baseless lawsuit.

But otherwise, and I’m talking to you Adam, stop wasting your time with this nonsense and get back to making your movie.

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DO I NEED TO PREREGISTER MY SCRIPT WITH THE COPYRIGHT OFFICE?

Many of you may have heard that the you can now preregister your work with the Copyright Office (if you haven’t heard it before this, you have now) and thought to yourself, “Preregistration.  Sounds important.  Should I do that?  Do I have to do that? Why would I do that?”

Boy, do you have a lot of questions!

Let me explain the purpose of preregistration and that will probably give you an answer as to whether you need to or not.

This all goes back to an issue that I’ve discussed in this blog many times before, the importance of registration with the Copyright Office  before any infringement begins.  Copyright registration must occur before any infringement or you cannot recover statutory damages or attorney’s fees in a lawsuit.  Well, one problem that arose from this requirement is that some works were infringed before they were even finished or available to the public.

This happens most commonly with albums by big name artists or blockbuster motion pictures.  Someone gets into the recording studio, makes a copy of whatever Eminem or Beyonce is working on, and then uploads it to the web. One of the most famous examples of this occurred in 2009, when Kevin Cogil uploaded nine songs from Guns N’ Roses Chinese Democracy to his Soundcloud account.  Also in 2009, someone uploaded an unfinished and incomplete workprint of X-Men Origins: Wolverine to the web. The print apparently came from an Australian special effects company.

The problem in cases like these is that because the infringement occurs before the work is completed, the creator has not yet registered the work with the Copyright Office.  So even though there has been a horrible infringement, the artist or studio can only sue for “actual damages” (which can be very difficult to prove) and can’t recover attorney’s fees or statutory damages.

Preregistration was developed to solve this problem.  If you have a work that you think might be infringed before it is put out on the market, you can preregister it.  Preregistration is not a substitute for registration but it allows the infringed party to sue before the authorized release of the work and recover statutory damages and attorney’s fees.  In order to obtain these benefits, the author must register the work within one month after learning of the infringement and no later than three months after first publication of the work.

For the vast majority of you, there is no need to preregister.  First of all, it’s expensive ($140). Second, most of you do not have works that will be infringed while they are still in development. Third, preregistration is only allowed for the following types of works:

  • motion pictures
  • sound recordings
  • musical compositions
  • literary works being prepared for publication in book form
  • computer programs (including videogames)
  • advertising or marketing photographs

So for artists and sculptors, preregistration is not even an option.  And, if you’re a screenwriter, there is no need to preregister because you should be registering the script as soon as it is completed enough that you are submitting it to agents and producers. But, if your career develops to a place where you think it’s possible that your work may get infringed before it is completed, it’s good to know that preregistration is available as an option.

For more information on the preregistration process from the Copyright Office, click here.

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