Category Archives: Copyright

The “Frozen” Trailer Lawsuit Shows The Importance Of Copyright Registration

Today, the Hollywood Report ran a story about a copyright lawsuit involving the movie Frozen. Only the plaintiff was not suing regarding the film.  The suit, filed by aspiring animator Kelly Wilson, alleges that the teaser trailer for Frozen was appropriated from her short animated film titled The Snowman.

The Snowman is about a clumsy snowman that loses its carrot nose on a frozen lake and then battles with a gang of rabbits to get it back.  You can watch it here.

 

 

The Frozen trailer is also about a clumsy snowman that loses its carrot nose on a frozen lake and then battles with a reindeer to get it back.  You can watch it here.

 

 

Do you think the Frozen trailer is similar enough to The Snowman so that Ms. Wilson prevails in her copyright infringement lawsuit?  Personally, I would say probably not, especially based on the standard of similarity judges in the 9th circuit are requiring just to get a case to a jury.  But I can certainly see why Ms. Wilson believes she was ripped off.  But are these just two films with the same idea? Or did Disney copy Ms. Wilson’s expression of that idea?  That will be up to the judge to decide.  I want to talk about the fact that even if Ms. Wilson wins, she has cost herself hundreds of thousands of dollars simply because she did not register her script with the Copyright Office until after she discovered the infringement.

As I have written many times (most notably here, and here), copyright registration is so important because if your work is infringed, a registration prior to the infringement gives you the opportunity to obtain both statutory damages and attorney’s fees.  Without prior registration, you get neither.  This case provides a good example of how this will play out to hurt Ms. Wilson.

The Snowman was created in 2010 and, according to the Complaint, was not registered with the Copyright Office until July 6, 2013, after Ms. Wilson saw the Disney trailer.  So, if Ms. Wilson prevails in the lawsuit (and that’s a big if in itself), she can only collect “actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement.”  17 U.S.C. §504.

In terms of “actual damages suffered” that number would be difficult to quantify, but I would say, at best, it would be the cost to license the right to the story of The Snowman to use in a trailer.  That number would not be very large.  At best, we’re talking about something in the low five-figures.

Well, what about Disney’s profits?  Frozen is the highest grossing animated movie in history.  Shouldn’t that mean a big check for Ms. Wilson?  It might, if the scene in the Frozen trailer had appeared in the film.  But it doesn’t.  The scene in the trailer doesn’t appear in the film at all.  In fact, people thought this was sort of underhanded since the trailer is very misleading as to what the film is about.

Ms. Wilson’s lawyers will no doubt argue that it was the success of the “infringing” trailer that led to the success of the film (and all the profits).   Good luck with that.  Assuming Ms. Wilson’s prevails on her claim of infringement, will a judge allow a jury to determine what percentage of the profits of Frozen are due to a teaser trailer released six months before the film’s release?  That is going to be a very hard sell.  Also very expensive in terms of experts.

And that is why the Ms. Wilson’s failure to register the film with the copyright office is so costly.  Had she registered earlier, she could ask for statutory damages of up to $150,000 for willful copyright infringement. And she could make the election to go for statutory damages (as opposed to actual damages) at any time before the case went to the jury.  That means that she could try to get the judge to allow her to obtain some portion of the profits of the movie, but if that didn’t work, she could change strategy and ask for statutory damages instead.

I’m sure that Ms. Wilson’s attorneys are working on a contingency fee basis as it seems doubtful that a struggling animator would have the money to pay them by the hour.  If the lawyers could obtain their attorney’s fees at the end of the case, it would mean hundreds of thousands more dollars that Ms. Wilson would receive if she prevailed.  This would also put some pressure on Disney to settle.

As it is, it’s an interesting case, but it just serves as one more example of the importance of registering your work with the copyright office (never with the WGA) as soon as you are sending it out to the public.

 

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OPEN LETTER TO THE WGA BOARD MEMBERS

To The Board Members of the WGA.

My name is Larry Zerner.  I am a copyright attorney in Los Angeles.  In my practice, I represent screenwriters in lawsuits against production companies and studios for copyright infringement.

I am writing to you directly because of something that I believe should be addressed by the WGA and that is the fact that WGA Script Registry is costing your members money and is acting as a detriment, not an asset, to screenwriters. I know that sentence sounds extreme, but please let me explain.

The problem with the Script Registry is that many writers are using it as a substitute for registration with the U.S. Copyright Office.  As a result, in the event that their work is infringed, the writer will almost certainly lose thousands of dollars.  And, in many cases, a writer who only registered with the Script Registry will be precluded from filing a lawsuit because the economic realities of litigation.

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That Carrie Coffee Shop Prank is Great. Can I Do My Own Without Being Sued?

You may have seen the quickly going viral Carrie based “prankvertisement” in which a NY coffee shop was rigged to make it appear that a woman could move things with her mind.  If you haven’t seen it yet, take a look at it above.  It’s terrific.

And I know a lot of you are thinking, this seems like a really great way to promote your movie/tv show/webpage etc.  And it is, when done right. But a project like this raises a lot of possible legal issues that must be dealt with.  You may not see them in the video, but I’m sure there were a lot of lawyers who weighed in before, during and after the filming.  Let’s discuss some of the issues that I can spot right off the bat. Continue reading

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Comic-Con Panel

I am a late addition to the “Comic Book Law School” panel at Comic-Con with Michael Lovitz.  We will be speaking about recent updates in entertainment law including the Batmobile case I worked on. 

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DID SONY WIN THE CONSOLE WAR AT E3? i DON’T THINK SO

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Although I normally write about copyright and entertainment issues, as an avid gamer, I thought I would put my 2 cents about the new console war.  I read a lot of reports saying that Sony clearly won the battle of E3.  Why?  Because the PS4 will 1) not require an internet connection, 2) will allow the sale of used games and 3) cost $100 less than the XBOX One ($399 vs $499).  While these are all fine points, let me push back a little on the idea that these reasons alone will cause the PS4 to emerge victorious.

First, one change Sony made that got lost in the shuffle is that they will no longer allow free multiplayer.  Instead, consumers will now have to pay $50 a year for a subscription.  At least for the first year or so, because there will be so few games available for either system (neither are backwards compatible), gamers will be holding on to their XBOX 360’s and PS3’s to keep playing the games they love.  XBOX gamers who want to keep their 360 (to play Halo online) but also get the PS4 will end up paying $110 a year in subscription fees ($60 to Microsoft and $50 to Sony).  But if the 360 owner gets the XBOX One instead, he only pays the $60 fee.  So, for gamers who are keeping the 360 but getting the PS4, the net saving is only $50 in the first year. Continue reading

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The Most Famous Horror Actor You Probably Know Nothing About.

Here’s an interview I did with Max It Magazine about my early acting career and my current work as an entertainment attorney.

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May 29, 2013 · 10:29 am

Do I Need A Talent Manager?

I recently got the following email:

Dear Larry, 

I’m just starting out as an actor after graduating college with a theater degree.  An actor friend of mine wants to hook me up with her manager. I went to talk to him, and he seems nice, but I’m not sure.  Do I need a talent manager?  Is there anything I need to look out for in picking one?  I don’t yet have an agent.  Thanks. 

Whether to have a manager or not is a question common to up-and-coming (and more established) actors.  The first thing that you should know about managers is that in California, it is illegal for a manager (or anyone without a talent agent’s license) to try to obtain employment for you as a performer.  This rule not only applies to actors, but also writers, directors, models, and pretty much any one else working in the entertainment industry.  But if that’s the case, then why do people have managers?  Isn’t the whole point of having a manager to get you work?

Well, presumably, the answer is “no.” The manager is not supposed to get you work.  But in practice, that is not the case.  Many (if not most) managers are trying to obtain work for their clients.  If not directly, by setting up auditions, then indirectly, by arranging “meetings” with casting agents, producers, directors, and other people who might get you work.  The issue is really more a problem for the manager because the Labor Commissioner can declare a manager contract illegal and unenforceable if it finds that the manager was procuring employment (Read about this recent case involving the group LMFAO to see how this plays out). Continue reading

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Will Using A Loan-Out Corporation Interfere With Your Copyright Termination Rights?

As you probably know, when Congress amended the Copyright Act in 1976, they added a provision that would allow authors and musicians the right to terminate their copyright transfers after 35 years.  The purpose of this was ostensibly to  protect  the poor, struggling artist who made a bad deal, and give him the opportunity to recapture and resell the rights later.  We have lately seen a plethora of cases involving the first of these copyright terminations, involving such bands as the Village People and Boston. 

You also probably are aware that many artists create a “loan-out corporation” which is a self-owned corporation which “hires” the artist.  Although this is really a legal fiction, the artist can use the loan-out corporation to reduce their taxes and to gain other benefits by letting payments flow through the loan-out.  In preparing the loan-out corporation, there is usually a document in which the artist agrees that all of his work shall be considered a “work made for hire” of the loan out corporation.

A question that has arisen (but has not been decided) is whether works created for a “loan-out corporation” can be terminated.  Although it would seem to be obvious that it was congress’ intent to allow artist to terminate whether or not they worked through a loan-out, the language of the statute allowing for copyright termination, (17 U.S.C. 203(a)) specifically states the copyright termination only applies to works that are not a work made for hire.  Since the artist has declared that all of his work should be considered a work for hire for the loan-out corporation, you can see that this is a big potential problem. 

Two lawyers at Greenberg Glusker, Aaron Moss, and Ken Basin, have written a paper analyzing the problem and laying forth possible solutions.  The paper may be a little technical for you non-lawyers reading this blog, but those of you who use loan-out’s should certainly become aware of this problem as it could be very costly down the road. 

At a minimum, I would suggest that any readers who are members of the WGA should speak to them about lobbying Congress to fix the statute to make it clear that the use of loan-out corporations should not effect copyright termination rights.  Aaron and Ken include some suggestions on how the statute can be easily modified to rectify the situation. 

It just goes to show that sometimes statutes can have unintended consequences that end up completely eviscerating the purpose of the statute. 

 

 

 

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CAN I DISCUSS ANOTHER MOVIE IN MY MOVIE?

Someone recently asked me what I thought was a fairly ignorant question. They wanted to know if it was okay to have characters in their movie discussing a scene from Lord of the Rings. I guess as a copyright lawyer, the answer to this is obvious. But I thought that the answer would be obvious to anyone, even if they didn’t go to law school. The fact that people might think that just discussing a movie or TV show in your film could get you sued shows how much the studios have intimidated people and led to this complete fear among filmmakers to even mention another movie for fear of a lawsuit.

So I’m here to tell you that such fears are completely groundless. As shown in the above clip from Kevin Smith’s “Clerks,” it is perfectly acceptable to characters in a movie discuss elements of another movie (in this case “The Empire Strikes Back”).

That doesn’t mean that you can take massive amounts of dialogue from another movie and put it in your film, but you can certainly say “Go ahead. Make my day” or “May the Force be With You” without fear of the copyright police coming after you.

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January 31, 2013 · 2:07 pm

Hollywood Reporter Article on Batmobile Lawsuit I’m defending

For the past 2 years, I’ve been defending Mark Towle in a lawsuit brought by DC comics accusing Mark of copyright infringement for selling Batmobile replicas.  DC’s suit is without merit which I explained in my motion for summary judgement, scheduled for January 30.  The Hollywood Reporter just wrote a long story about the lawsuit, with links to the motion.  I find this case fascinating and I’m sure you will too. Click on title above to read article on The Hollywood Reporter.

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January 2, 2013 · 2:10 pm