Film and Television Law Blog: August 2008

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August 2008

August 25, 2008

A “Poor-Man’s Copyright” is a Poor Solution for Copyright Protection

Commentary: Beware the “poor man’s copyright.” It is nothing more than an urban legend that if an artist mails himself a copy of a song, story or some other artistic expression that he created, he will be preserving his copyright in it. That procedure is generally insufficient to protect the original creator’s rights.

Instead, the “poor man’s copyright” is useful solely in that it can help establish when the work was created for purposes of proving that it is protected as a common law copyright. While this could help to establish the ownership and creation date (if that is challenged in a later dispute), it is insufficient to maximize the right to recover damages; for that, one would need to have filed a statutory copyright..

In other words, if someone does not register their work as a statutory copyright with the United States Copyright Office, they may still be entitled to a common law copyright. However, without the Federal registration of a statutory copyright, the amount of damages they can collect will be severely restricted.

What is the difference between a common law and a statutory copyright? Essentially, as soon as an expression is recorded in a tangible form (i.e. written on paper, recorded on film, etc.), there is a common law right in and to the copyright of that expression. This does grant the artist the above-referenced exclusive rights as a copyright owner. Unfortunately, this generally provides him with rights without a remedy. The main concern underlying copyright ownership is preventing someone else’s unauthorized usage. Unfortunately, a common law copyright owner cannot generally go to court to sue for copyright infringement unless and until they have a registered copyright. This means that the work is actually registered with the Library of Congress’s U.S. Copyright Office.

However it is not generally recommended that an owner simply wait until an infringement occurs to register his work as it severely limits his rights. We strongly recommend that all works be registered with the Copyright Office at the earliest possible point. This is because there are added rights and protections that inure to a registered copyright holder. These specifically include an ability to obtain statutory damages and recoup attorneys’ fees. However, an owner can only avail themselves of these protections in a dispute if the work was registered when the alleged infringement occurred.

For instance, if a company obtains the script of a film from another company and then produces the film utilizing that script without permission, it has arguably infringed on the rights of the company owning the script. The creation of a film from a script is a derivative work. Since only the copyright holder may create a derivative work without permission, this is problematic. If the script was not registered for copyright infringement when the film was produced, the script owner will generally only be able to recoup damages from lost profits. This can be very difficult to prove and/or end up being minimal. For instance, the film that the infringing company made may not have been profitable. Accordingly, there might be little damages at stake, even though the violation may have been blatant.

On the other hand, if the company had a registered copyright for the script, it could then have the ability to instead obtain statutory damages rather than be limited to lost profits. In addition, with the prior registration, the company may be able to recoup the attorneys’ fees it expends in connection with the prosecution of its infringement case. This can be the difference between the case being a viable lawsuit or not, at least from a cost-benefit standpoint.

The best practice is therefore to obtain a statutory copyright registration prior to any release, promotion or other distribution of a work so that it can be protected before anyone has the opportunity to infringe on the work.

Please visit our website at www.gdnlaw.com and our other blogs at www.nissenbaumlawblog.com; www.foreclosuredefenselawblog.com; www.saleofbusinesslawblog.com; www.internetdefamationlawblog.com; www.constructionlawinfoblog.com; www.filmproductionlawblog.com; www.internetlawinfoblog.com; and www.njbusinesslawblog.com

Posted by Nissenbaum Law Group at 10:43 AM in Commentary | Permalink | Comments (0) | TrackBack (0)

Newly Enacted Law Removes Maximum Price Restriction on Sales of Admission Tickets to Entertainment Facilities

New Jersey Legislation: The New Jersey legislature recently enacted a statute which removes the maximum price limitation on sales of tickets for admission to various places of entertainment. Under the law, a “place of entertainment” is defined as any privately or publicly owned and operated entertainment facility, such as a theatre, stadium, museum, arena, racetrack or other place where performances, concerts, exhibits, games or contests are held.

Prior to the passage of the law, individuals were restricted from reselling tickets for admission to places of entertainment in excess of 20% of the ticket price or $3.00, whichever was greater, plus lawful taxes. Registered ticket brokers and season ticket holders were allowed to resell tickets at a premium, but only up to 50% of the price they paid to acquire the ticket, plus lawful taxes. The newly enacted law lifts all caps on the price for the resale or purchase of a ticket sold by a person other than a registered ticket broker, as long as the sale is made through an Internet website. The law also removes the prior statutory provision requiring that the face of each ticket include language indicating the maximum premium at which that ticket may be resold.

The legislative intent behind the law is to level the playing field for New Jersey citizens seeking to dispose of extra tickets that would otherwise remain unused, thus allowing for the public to lawfully sell tickets on eBay, Craigslist and other similar websites. The effect, however, will likely be to open, or re-open, a large area of commerce for professional “scalpers” or other professional bona fide online ticket resellers. Indeed, it may very well result in professional ticket resellers buying up so many blocks of tickets that the average member of the public will have trouble obtaining them directly from the box office where the performance is being held. On the positive side, however, the legislature noted that the previous price restrictions that were in place prior to the passage of this law put New Jersey residents at an unfair disadvantage when competing with sellers from other states who are not restricted by price caps on tickets resold via the Internet. This law would presumably help overcome that disadvantage.

Posted by Nissenbaum Law Group at 10:31 AM in New Jersey Legislation | Permalink | Comments (0) | TrackBack (0)

Stolen Ideas Often Result in Limited Remedies

Commentary: Imagine the following scenario: you develop a great idea for a television show and submit it to a network for consideration. They reject the proposal. But, a few months later you see an advertisement for a new show that looks a lot like the show that you had pitched. “Looks like a duck, quacks like a duck…,” right? Unfortunately, even if the show follows the precise outline of your pitch, such use may not be deemed to be intellectual property infringement.

The law does not generally allow individuals to protect ideas. However, it does have certain modes for protecting aspects of intellectual property: copyright allows the protection of the actual expression of an idea (the written script, the actual photograph, etc.); trademark law enables the general protection of a business and product or service names, branding and logo; and patent law will sometimes protect a general concept, however this is generally limited to technical aspects or utilitarian concepts. The best way to protect an “idea” is to generally engage in a combination attack. Essentially, the idea may be able to be protected through the different protectable aspects of the project through intellectual property filings.

In order to protect the over-arching “idea,” protection must be contracted for. Again, the law itself does not provide an over-arching protection for an idea itself. If an idea is openly shared, someone else can separately develop it. It is not a good practice to share ideas unless and until the person or entity with whom they are sharing it promises to keep the ideas confidential and to not use or exploit the idea themselves. This type of contract is generally called a non-disclosure agreement (NDA) or confidentiality agreement. Executing this agreement, might arguably provide recourse against the party to whom the idea was revealed, assuming they then utilized it in violation of their signed, written agreement. Whereas the idea-holder may not be able to sue for infringement, he may have the ability to sue for breach of contract and either stop the infringer from proceeding with the idea and/or obtain damages from their wrongful use.

Posted by Nissenbaum Law Group at 10:27 AM in Commentary | Permalink | Comments (0) | TrackBack (0)

Independent Filmmakers Increasingly Utilizing Self-Distribution Model

Commentary: In recent years, the marketplace for independent films has become increasingly overcrowded. Several prominent distribution houses for independent films have been forced to sell or close and currently, the general thought is that there are simply too many films for too few theatres. As a result, independent filmmakers have seen it become more and more difficult to obtain conventional movie deals for their films.

For many independent filmmakers, the do-it-yourself model of distribution has become an increasingly attractive option. Although some are forced to go it alone because they have no other viable alternative, for others who do have options under the old model, self distribution can still be the more attractive approach. For example, distribution houses typically require that the filmmaker sign over most of the rights to their film in exchange for small cash advances, and often, they do not expend the funds necessary to sufficiently market the film to the general public. The do-it-yourself model not only allows filmmakers to retain the rights to their films, but it also enables them to retain control over where the film is distributed. It can also enable the filmmaker to exert more artistic control with regard to how the film is marketed, so that the distributor is no longer at the helm. Moreover, it allows the filmmaker to be proactive rather than simply waiting to find a deal.

Nonetheless, there is certainly a downside to self-distribution. In order to take on distribution without the help of a prominent distribution house, independent filmmakers must have a solid understanding of the marketplace. In addition, self-distribution requires the filmmaker to have access to the necessary capital. For example, there can be a huge expense involved in opening a film in major movie markets; filmmakers must cope with the hassle of collecting money from exhibitors; and they must handle the detailed logistics involved in booking a film. To be sure, self-distribution involves an enormous amount of work. But if the filmmaker is willing to put the time in, that work has the ability to reap substantial rewards.

Posted by Nissenbaum Law Group at 10:24 AM in Commentary | Permalink | Comments (0) | TrackBack (0)

A Work for Hire Agreement: A Critical Tool for Production Companies

Commentary: Many companies operate under the misconception that if they have hired and paid freelancers for their work, the company has that paid them has all of the rights to it. Quite simply, this is not necessarily true.

Simply paying someone for their services does not mean that you own the rights and proceeds of that work. Admittedly, it is quite counter-intuitive: you provided your consultant with the idea; they provided services; and you paid for it. You would think this would provide you with all rights in that work. However, the law generally requires that there be a written agreement, signed by the person giving up their rights. It should provide that the services are being performed as a “work-for-hire” and that the contractor is giving up and assigning their rights to it. If you do not specifically provide this in a signed agreement, the contractor could later claim rights to their work; could claim that they are a joint copyright holder; or otherwise cause problems as you try to promote your products or services.

Moreover, although the law provides for greater protection to companies for work created by employees rather than independent contractors, nevertheless, we generally recommend that companies apply the same system described above their employees, as well. Again, this should be in a written agreement, signed by the employee which specifically refers to the fact that employee’s services are being provided to the company as a “work-for-hire.” This is often included within the employee’s employment agreement. However, if the employee did not sign an employment agreement, this still could be accomplished through a separate, stand-alone document.

Comments/Questions: ljm@gdnlaw.com

Posted by Nissenbaum Law Group at 10:21 AM in Commentary | Permalink | Comments (0) | TrackBack (0)

August 08, 2008

New York Enacts the Truth in Music Advertising Act

Entertainment Law: The New York State legislature enacted a new statute specifically aimed at advertising in the music industry. The Truth in Music Advertising Act, NY Art & Cult Aff. § 34.01, et seq., was effective as of September 14, 2007 and specifically proscribes that:

No performing group shall use, advertise or promote a live musical performance or production through the use of a false, deceptive or misleading affiliation, connection or association between a recording group and a performing group where such performing group is seeking to use the same or a substantially similar name as such recording group.

In other words, the law prohibits, with certain exceptions a musical group from misleading the public with regard to a live musical performance in New York by indicating an affiliation with another group, at least one member of which has previously released a commercial sound recording under the group’s name. This could play out in a number of ways. First, it would arguably prohibit a band from performing under a name that has been used by a recording group. Likewise, the law would arguably prohibit the advertisement of a band under a name that is similar to that of a recording group.

The law dovetails with current State and Federal trademark and advertising laws, however it provides a specific cause of action and right for the Attorney General to seek a remedy in the proscribed wrongful behavior. Moreover, the law provides for an assessment of civil penalties of up to $5,000.00 for a first violation, and up to $15,000.00 for subsequent violations. This is in addition to other damages that may be available when seeking remedies under other laws, such as trademark law. The law also specifically allows the Attorney General to obtain injunctions in relation to this conduct.

However, the challenge is the breadth of the statute. The law does not appear to be intent-based. Moreover, the proscribed exceptions do not include the unknowing use of a recording group’s name. It is therefore possible that a performing group could assume a name that is already in use by a recording group, and therefore be unwittingly in violation of the law. This is compounded by the broad definition of “recording group.” As stated, to be considered a recording group, the group need only have had one member release a commercial sound recording under that group’s name, and that sound recording can be of any nature in which the sound can be fixed, including CD, tape or computerized file. Accordingly, a group could arguably meet this definition very easily.

Through the adoption of the Truth in Music Advertising Act, New York joins the over one-dozen other states that have adopted similar statutes, including New Jersey, Pennsylvania, Connecticut and Florida. Interestingly, the New York law is aimed only at the use or advertisement of a name by a performing group. This is a variation from other states laws. For instance, New Jersey’s Truth in Music Advertising Act prohibits “any person” from such advertising or usage. Accordingly, whereas the New Jersey law could arguably be used to also prohibit a venue from falsely advertising a performance by a recording group, the New York law does not appear to provide for such a violation against anyone other than the performing group itself.

Notably, these truth in advertising laws tend to be relatively new phenomena, with many of the statutes being enacted only in the past couple of years. Accordingly, there is little case law interpreting or challenging the import of the laws. New Jersey’s Truth in Music Advertising Act, which was adopted in January 2007 is now being challenged in the courts. Specifically, there is a case pending in the U.S. District Court of New Jersey which represents one of the first cases to try to enforce the law’s reach. Also pending is a current lawsuit against State Attorney General Anne Milgram challenging the enforcement of the law.

We therefore recommend the following:

Musical groups should obtain legal counsel prior to adopting a group name in order to ensure that such name is not already in use, and in order to secure its rights to the name;

Venues and musical groups should ensure that any and all advertising relating to their live performances in New York have been cleared by legal counsel prior to their publication and distribution; and

Venues and musical groups alike should ensure that their contracts address this new law and the responsibilities of each party relating to the same.

Comments/Questions:
ljm@gdnlaw.com

Posted by Nissenbaum Law Group at 05:22 PM in Entertainment Law | Permalink | Comments (0) | TrackBack (0)

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