Speaking at the Alameda Writer’s Group January 5, 2013

I will be speaking at the Alameda Writers Group on January 5th at 10:00 on Know Your Writer’s Rights, a one hour presentation where I give screenwriters everything (well, almost everything) they need to know about the legal issues affecting writers.  Will cover copyright infringement, registrations, options agreements, collaboration agreements, Libel & Slander, Titles, and a host of other topics.  It’s free, so come on out and begin the year by learning something new.

For more information, visit http://alamedawritersgroup.ning.com

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December 27, 2012 · 9:38 pm

Speaking at the New Playwrights Foundation

I will be speaking tomorrow at the New Playwrights Foundation on the “Legal Secrets Every Writer Needs to Know to Make Money and Avoid Being 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 dialogue@newplaywrights.org.

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The Monkey Business in the “Monkey Wrench” Copyright Infringement Lawsuit

The Monkey Wrench Gang is a 1975 novel about eco-terrorism, written by Edward Abbey.  Although I have never read it, I am certainly aware of it, and know that the term “monkey wrenching” (meaning sabotage done to protect the environment) was derived from the novel.  Edward Abbey died in 1989, and his wife,  Clarke Abbey, recently granted a license to producer Edward Pressman (Wall StreetConan the Barbarian, many others) to make a movie based on the book. The movie is currently in development, with Henry Joost and Ariel Schulman (Catfish, Paranormal Activity 3) set to direct.

Last week, while attending the Toronto International Film Festival, Mr. Pressman found out that another movie about eco-terrorism was being developed.  This second movie, titled Night Moves, will be directed by Kelly Reichardt (Old Joy, Meek’s Cutoff) and is set to star Jesse Eisenberg, Dakota Fanning, and Peter Sarsgaard.

Mr. Pressman apparently does not believe that Hollywood is big enough for two eco-terrorism movies to come out at the same time, so, last Thursday he sued the screenwriter, the director, the producer, the production company, the distributor, and anyone else involved in the movie for copyright infringement.  But, what’s apparent upon reading the complaint, is just how tenuous their claim of copyright infringement is.

In order to prove copyright infringement, the plaintiff has to show substantial similarity of plot, characters, dialogue, theme, mood, and sequence of events.  And most complaints for copyright infringement will go to great lengths detailing the similarities between the two works. What’s interesting about the Pressman complaint is how few similarities are listed.  The Complaint basically lists just three similarities: 1) that both works feature the targeting of a dam for destruction by means of ammonium fertilizer-laden boats, 2) that in both works, the principal bomb maker is a beer guzzling veteran who served overseas, where he acquired his knowledge of explosives, and 3) that both works feature a 20-something woman who starts out as a companion of another member of the group but develops a sexual relationship with the bomb-making veteran, despite his initial objections to her participation in the group’s illegal activities.

Now the complaint does state that these similarities are by way of example only, and so there may be many more similarities between the works, but in my experience, if they had more (or better similarities) they would have included them in the complaint.  The similarities listed above are not even close to the level of substantial similarity required to prove copyright infringement.   The first similarity, that both deal with a plot to blow up a dam by eco-terrorists, is just an idea, it’s not even protectable.  It’s like saying the idea of a movie about terrorists trying to blow up a building in New York is protectable.  And how about the third similarity? How many movies have you seen about a gang of criminals where the female character starts with one of the guys and then switches over to another guy during the movie (and usually the one that doesn’t want her around).  It’s just a cliché.  But for good measure the complaint includes an allegation that the similarities are so obvious that “internet bloggers have commented about [them].”

Well, that settles it doesn’t it?  I mean, if internet bloggers have commented about the similarities, then what do we need a trial for?   Of course, most internet bloggers have taken courses in copyright law and fully understand the legal standard required for proving copyright infringement.  So we can rely on everything they say.  In my opinion, the fact that Pressman’s lawyer put that in the complaint means that he knows how weak his case is.

So, what’s going on here?  If the case is so weak, how come the lawsuit was filed?  I’m glad you asked.  Here is my theory.

Most likely, the plaintiffs understand that the similarities between Night Moves and Monkey Wrench Gang would not be sufficient to win in court.  But right now, they are not in court.  They are trying to raise financing for the film and having another high-profile movie out there about eco-terrorism is only going to hurt their chances to find money.  By filing the lawsuit, potential buyers and investors will possibly be scared out of giving money to Night Moves (since they may be added as a defendant to the case) The plaintiffs  believe that by filing the lawsuit they can slow down the development of Night Moves enough that they can get ahead in the race to the screen.   Pressman only needs to slow down the other movie for six months or so, but it will take a year or more for the lawsuit to get resolved.  In that time, Pressman can get his movie in production and pass Night Moves in the development process.  

In effect, Pressman is doing to the producers of Night Moves what the characters did in the Abbey novel, he’s monkey wrenching them.

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New Video: How to Register a Screenplay with the U.S. Copyright Office.

18 months ago, a put up a post showing, with pictures, how to register a screenplay with the U.S. Copyright Office.

Now, for people who feel that still pictures are not enough, I have created a video that follows me as I register a screenplay with the U.S. Copyright Office. If you watch it, you will know exactly what to do (and you can save all those pesky lawyer fees).  So please watch it, and let me know what you think.  I’ll be doing more videos soon.

Here’s the link: How to Register a Screenplay with the U.S. Copyright Office.

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Marina Abramović – Is “The Artist is Present” protected by copyright law?

I watched the fascinating documentary about the performance artist Marina Abramović on HBO last night.  Marina is considered the “Grandmother of Performance Art” and has done some amazing pieces, many involving nudity and violence.    If you have HBO, I would definitely put it on my “must watch” list.  Last year, the Museum of Modern Art did a retrospective on her career, and she brought in young artists to recreate some of her most famous pieces,  including one where a couple stood face-to-face in a doorway, completely nude.  People who wanted to get from one room to the next had to slide their way between the naked couple, probably a first for most of the patrons.

Marina herself performed a new piece called “The Artist is Present.”  From March 14 to May 31, six days a week, seven hours a day, Marina sat in a chair, not speaking, with patrons invited to sit opposite her.  People came from all over the world to sit in the chair opposite her and spend a few minutes staring into her eyes.  The documentary shows the fairly severe physical and mental strain this caused on Marina as well as the many emotional reactions from those who were fortunate enough to get into the seat (toward the end of the run, people were camping overnight to get a space in the line).

But one thing that struck me while watching the film, coming at it from a copyright lawyer’s perspective, is how elusive performance art is and how difficult it would be to protect the performance art pieces under copyright law. In the film, her gallery dealer explains that to make money, she will issue limited edition photographs commemorating her performance art pieces.  He says that some of these photographs, which originally sold for $2,000 – $5,000, are now worth $25,000 to $50,000.

But while this may work for her to monetize her work, copyright to the photograph would only protect the photograph itself, not the underlying performance art.  For a piece like “The Artist is Present,” which involves sitting in a chair, there would be nothing to stop another artist from taking the idea and performing it somewhere else.  Because the performance art is uniquely created in the moment, another artist attempting the same thing could do so without fear of a lawsuit for copyright infringement (although that artist would probably be loudly and rightly derided).  Because performance art can consist of a simple idea, acted out, and since copyright does not protect mere ideas, anyone is free to use those ideas in their own way.

In the documentary, Marina gives a speech where she recites her “Rules for Artists.”  One of these rules was “Artists do not steal from other Artists.”  That is a good rule for her to have, and other artists to live by.  Because the copyright laws would probably not protect her if they do.

 

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You Made Your Songwriting Partner Sign A Work-For-Hire Agreement. Oops, It’s Worthless.

You, faithful reader, are inspired to write a song.  You’ve written some of the lyrics and a few verses, but the chorus needs work, and the song needs some fine tuning.  You have a great idea.  You’ll invite your friend Taylor Swift* over to help finish the song.  But since it was your idea for the song, and because Taylor is already rich and famous, and because you don’t like to share, you decide that you’ll have Taylor sign a work-for-hire agreement.  You’ve heard about these work-for-hire agreements and understand that if you get her to sign it, you will own the entire song and Taylor will own nothing.  So more money for you, right.  Wrong! (Loud buzzing sound is heard).

Why is that?  Because while the copyright act does state that works done pursuant to a work-for-hire agreement are owned by the hiring partner (that’s you), a work-for-hire only applies to these nine categories of works:

1) a collective work:
2) a part of a motion picture or other audiovisual work;
3) a translation;
4) a supplementary work;
5) a compilation;
6) an instructional text;
7) a test;
8) answer material for a test;
9) an atlas.

Do you see “songs” anywhere on this list?  No.  You know what else you don’t see on this list?  Plays or paintings or sculptures or toys. None of these kinds of works fall into works made for hire.

In that case, how do you get the rights from Taylor?  There are two ways.

The first way is simple, but not really practical.  That is to hire Taylor as your employee.  For any creative work done by an employee within the scope of their employment, the copyright is automatically owned by the employer and the employer is considered the author. That applies to all creative work and not just limited to the nine categories listed above.  But since getting Taylor to agree to be your employee may be difficult, you might try this other way first.

That is to get Taylor to agree to assign her rights in the song to you.  That is why most work-for-hire agreements have a provision that reads something like this.

Writer acknowledges that all results, product and proceeds of Writer’s services are being specially ordered by Purchaser  and shall be considered a “work made for hire” for Purchaser .  In the event that any of the results and proceeds of Writer’s services and/or any rights obtained by Writer for the benefit of Purchaser hereunder are not deemed to be a “work-made-for-hire” for Purchaser, Writer hereby irrevocably and exclusively assigns to Purchaser all right, title and interest in and to such results and proceeds  and all rights to exploit the same throughout the universe, in perpetuity, in any and all media, whether now known or hereafter devised.

Isn’t an assignment the same thing as a work-for-hire?  Well, it does almost the same thing except that both you and Taylor would be considered the “authors” of the song and, more importantly, after 35 years, Taylor would have the right to terminate the license and get the rights to the song back (a subject for another post).

The lesson is that if you are going to make someone sign a work-for-hire agreement, unless the work falls into one of these categories make sure that you include assignment language like the language above, in the agreement.  Othewise, the agreement will not be effective.

* I used Taylor Swift solely to generate more web traffic.  I am aware that your actual friend is Justin Bieber.

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You infringed my copyright! You owe me $150,000! Um . . . Not so fast.

Because my firm will sometimes handle copyright infringement cases on a contingency fee basis, I often get phone calls that go something like this.

Caller: I would like to sue someone for copyright infringement.

Me: Okay.  What did they do?

Caller: They took a picture of mine and put it on their website.

Me: Are you a professional photographer?

Caller: No.  But I registered the photograph with the Copyright Office. So now they owe me $150,000.  Right? . . . Right?

This seems to be where the confusion comes in.  People think that if someone infringes their copyright, they are automatically owed $150,000.  But what the Copyright Act actually says is:

In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. 17 U.S.C. §504(c)(2).

Notice the underlined words.  The statute does not say that for willful infringement, the court must award at least $150,000.  The statute says that $150,000 is the most the court can award for statutory damages, but it’s entirely discretionary.  The court can even award damages as low as $200 if it finds the infringement to be innocent.

But many people assume that I will jump at the chance to represent them on a contingency fee basis, because I will certainly be able to get a jury to award damages of $150,000 The problem is that they are not looking at the case realistically.  Reader, ask yourself this question. If you were on a jury and had to decide statutory damages on a case where the sole infringement was that a photograph was put up on a website, are you going to give that photographer $150,000.  Probably not.  Most likely, you will ask yourself how much damages the photographer actually incurred and base your award on that number.

Keep in mind, when Congress wrote the laws regarding statutory damages, they were probably thinking of things like video bootleggers, who could sell tens of thousands of dollars of illegal product, but with no record keeping of these sales, making actual damages impossible to determine.  They were almost certainly not considering the kind of (relatively) small infringements that happen daily on the web.  I’m not excusing this behavior.  Nor do I think these infringements should never draw a lawsuit (although sometimes they should not).  But just don’t assume that every infringement is automatically worth $150,000.

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HOW TO BECOME AN ENTERTAINMENT ATTORNEY

Lately, I seem to be getting a lot of e-mails from law school students asking how they can get a job as an entertainment lawyer. Rather than answer all of these e-mails individually, I thought I would put some tips together on my blog that might help some graduates as they search for that elusive entertainment law job.

Now keep in mind that the last time I applied for a job was in 1992. I worked at a boutique entertainment firm for nine years and opened up my own firm in July 2000 so take this advice with as many grains of salt as you think applies. But if I were just graduating from law school today and looking to work in the entertainment industry, this is the advice I would tell myself.

By the way, I’m assuming that you’re not an Ivy League graduate who was in the top 10% of their class. Those people should not have a problem getting a job anywhere they want. This advice is for those of us who didn’t graduate from the top tier law schools and weren’t first in our class.

MOVE TO LOS ANGELES OR NEW YORK

If you haven’t done so already. ‘Nuff said.”

ASK PEOPLE YOU KNOW

More than just about any other field of law, the entertainment field is built on relationships. Therefore, it really helps to know someone. Now I know many of you don’t know any entertainment lawyer personally.  But if you live in Los Angeles, you almost certainly know someone who works in the entertainment industry, and they have a lawyer. Make calls, do lunches, get introductions, but do what you can to meet people who work in the industry.  The more people you know, the more chances you’ll have to make that connection with the person who can give you the job you want.

BE INTERESTED IN THE SUBJECT MATTER

If you’re going to be an entertainment lawyer, you better know what’s going on in the industry.  While many law schools now have classes in entertainment law, there is no way those classes can cover all the issues that an entertainment lawyer needs to know. So while you’re waiting to get that job, keep learning about the subject matter. Download lectures from iTunes U about copyright law. Read blogs that discuss developments and recent cases in the entertainment industry. Two of my favorites are THR ESQ and Techdirt. Read about and have an opinion on important industry issues such as CISPA and Copyright Termination.  If you hear about an interesting conference involving entertainment law, contact the organizers and see if you could work the door in exchange for a ticket. Not only will you learn a great deal, but you’ll meet a lot of people (see above).

20 years on, I still enjoy reading about and discussing the developments in copyright and entertainment law.  So do most of the other good entertainment lawyers. If it’s not something hat interests you, you won’t be good at it.

HELP OUT YOUR FRIENDS

I know of some very well respected and experienced entertainment lawyers who got their start because a friend of theirs needed legal help when they were hired as an actor and had no one else to turn to. Now I know that you probably don’t know enough to fully negotiate a television or movie deal, but your friends don’t have any money to pay you anyway.  So that makes things even. Do the best you can, read some form books, and dig into it. Who knows? If your friend becomes the next Brad Pitt, you can ride his coattails all the way to a nice job.  In the meantime, you’ll get some much-needed experience.

DON’T GET CAUGHT IN A HELL HOLE

I know that in these uncertain times, with the job market as tough as it is, it is simpler (and sometimes necessary) to take whatever job that comes along, even if it is not your dream job.  The problem is that you can get caught in a bad situation and end up spending a lot of time doing work you don’t want to do for people you don’t want to work for.  In 1991, even before I had passed the bar, I got a job at a small firm based on a recommendation from my copyright law professor. The problem was that the two partners were completely insane. Screaming at everyone, they clearly both had deep emotional issues that they were working out on the other lawyers and their staff. I spent four months there and finally had enough and gave notice.  They told me that they really like me and wanted me to stay but the atmosphere at the firm was so toxic that I knew I had to get away, even though I did not have another job lined up. Six weeks later I got a great job at a small entertainment firm working for two great guys and stayed for nine years before going out on my own.   I know that I was very lucky and that this story could have had many different endings. But I also know that if I stayed at that original firm there was no chance of a happy ending.  The moral is that sometimes no job is better than a horrible job.

You have to keep your eye on the ball.  It may take a year or three but if you persevere, you can get there.

Good luck to all the graduates of the class of 2012.

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The Frivolous Copyright Claim CBS Brought against ABC Claiming “Glass House” Infringes “Big Brother.”

This morning, CBS filed a lawsuit against ABC and Disney claiming that their new show Glass House was a rip-off of Big Brother. The complaint (which can be found here) alleges that at least 19 former Big Brother staffers are working on glass house and includes causes of action for, among other things, trade secret misappropriation, unfair competition, breach of fiduciary duty, and conspiracy.  Now, I’m no expert in trade secret law, so I’m not a comment on that part of the complaint. But as a copyright lawyer, I feel the allegation of copyright infringement is completely ridiculous.

In the complaint, CBS lists the following elements which it alleges are protectable and were ripped off by ABC.

1. Big Brother is a reality television series in which a group of people live together in a large house, isolated from the outside world. The contestants are filmed continuously.

2. Each cycle of the series begins with between 12 and 14 contestants (referred to as houseguests). Over the course of three months, contestants survive periodic evictions. The last contestant standing wins.

3. Evictions occur approximately once per week. The contestant designated the “head of household” nominates a number of fellow contestants whom he or she wishes to see evicted from the house. The contestants then vote to evict each other, and the nominated contestant with the most votes is evicted (unless the contestant uses a “power of veto,” where a contestant can save the nominee, causing the head of household to name a replacement nominee).

4. After the votes are tallied, the quote you pick the unquote leaves the house and is interviewed live, usually in front of a studio audience.

5. The weekly tasks and competitions, which are set by Big Brother, are a major part of the contest. The tasks are designed to test their teamwork abilities and community spirit. Contestants who lose the tasks and competitions are often nominated to be evicted from the house.

6. Throughout the cycle, the contestants are filmed in the “Diary/Confession Room, where they individually convey their thoughts, feelings, and frustrations, and reveal their nominees for eviction.

Now, I don’t know about you, but when I look at this list, it reads almost exactly like a description of the show Survivor. Other than the fact that this takes place in a house and not on an island, and that the head of household nominates certain contestants to be evicted, everything listed can be found as part of the Survivor television program.  The rules of Big Brother are simply not specific enough, nor are they detailed enough, to justify a claim of copyright infringement, when someone puts on a similar show.

We will see how this plays out, but if I could place a bet on the outcome, I would bet a lot of money on ABC. Let’s see what happens.

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HOW DO I PROTECT MY IDEA FOR A REALITY TELEVISION SHOW?

It seems like almost every day I get a call from someone asking me how they can protect their idea for a reality TV show.  So it seems like a good time to write a blog post giving some sort of answer. The short (and glib) answer is that you really can’t protect the idea for a reality show.  The reason being that ideas themselves are not protectable by copyright, only the expression of that idea.  For proof of this, you need only look at the similarity of reality shows that are already on the air.  Almost all of them fall into one of five categories.

1.  The Competition Show: Starting with American Idol, it includes America’s Got Talent, The X Factor, The Voice, Top Chef, Dancing with the Stars, Last Comic Standing, America’s Next Top Model, and Project Runway.  All of these shows have amateur contestants competing in various skills (singing, dancing, cooking, stand-up comedy, fashion), judges judging the outcome, and a weekly vote (by the judges or America) in which one contestant is sent packing.

2.  The Job Show: Cops, Million Dollar Matchmaker, Pawn Stars, Storage Wars, Ice Road Truckers, Ax Men, Sold.  Just pick a profession, and have camera’s follow people around doing their job.  Why they haven’t done a show about a charismatic copyright lawyer yet, I have no idea.

3.  The Fly On the Wall Show:  Get a group of people from the same or different socio-economic group together and watch the sparks fly.  Examples are Big Brother, Real World, The Surreal Life, Jersey Shore, Real Housewives of New Jersey, Teen Mom.

4.  The Celebrity Show: Pick a celebrity (or someone who thinks they are a celebrity) and follow them around.  Before the ever-present Kardashians, there were similar shows following Jessica Simpson, Brittney Spears, Hulk Hogan, Ozzie Osborne, Gene Simmons, Anna Nicole Smith and Hugh Hefner.

5.  The Looking for Love Show:  Besides the on-going Bachelor and Bachelorette, there was Flavor of Love, Rock of Love, and I Love New York on VH1 and Boy Meets Boy on Bravo.

So take a look at this list for a minute.  Don’t you think that if a format like American Idol was protectable, that Fox would do everything in its’ power to get The Voice and America’s Got Talent off the air?   And wouldn’t ABC have sued VHI for Flavor of Love if the idea behind The Bachelor was protectable?  Of course they would.  The fact that they haven’t should give you some indication as to their protectability.   So, if your idea falls into one of these categories, or if it is fairly similar to some other show but with a little twist, it’s really not protectable.

But does that mean that anyone can just steal my idea without paying me?

No.  But it means that in order to be able to prevail in a lawsuit, you better have something more than a one sentence log line.   There is a concept under California law called “idea misappropriation,” which basically says that if you pitch an idea to a production company, there may be an implied contract created in which it is agreed that you will be compensated if they use your concept.  The problem is that while the concept of idea misappropriation sounds good in theory, in practice these sorts of cases are very difficult and expensive to win.   And what you are really interested in is making sure your idea isn’t ripped off in the first place, so you get proper credit and compensation, not possibly winning an expensive lawsuit years in the future.

So how do I not get ripped off in the first place?

Ahh, that’s the $64,000 question.  Here are my suggestions.

First, if this is your first pitch, instead of going directly to a production company, think about partnering up with a more established producer.  Not Mark Burnett (or someone at his level) but someone smaller, who is willing to make a deal with you to share credit.

There are some good reasons for doing this. By teaming with an established producer, you lessen the chances that a production company will steal your idea. While a production company may not care about pissing you off, it’s going to be more careful about screwing over someone more established

Also, the established producer may be able to help you in improving your pitch. For beginners, it is sometimes difficult to understand all of the various elements that go into a successful reality show. A more experienced producer can help figure out potential problems with your concept, so you can make changes before you get into the pitch room.

Second, you can try getting an agent. Now I know that it’s difficult to find an agent, and no, I can’t recommend an agent for you. But if you can get one, especially one at a bigger agency, you stand less of a chance of being ripped off. Again, it’s not you the production company is worried about. But most of the major production companies have long-standing relationships with the bigger agencies, and those agencies did not want to lose their commission.

Third, you can hide your pitch in a drawer and never show it to anybody. Now I know this is ridiculous, but sometimes I hear from people who are so paralyzed with fear at the thought of having their idea ripped off, that they never share it with anyone in the first place. But at the end of the day, sometimes you just have to take the risk, put it out there, and see what happens.

Good luck!

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