How to Get the Rights You Need!

Internet Copyright Wars: Do We Really Need Any More Laws?

2012-02-01T18:18:00.000-08:00

In case you have been living in a cave, or just busy trying to make a buck in this economy - like me - let me cue you in on some Internet developments that everyone needs to be aware of. This isn't just going to affect those of us whose livelihood is integrally connected with I/P production and distribution.

Let me sum up a few of the latest developments, as I understand them. These are legislative and treaty developments, and the piracy issues that allegedly prompt them and make them necessary, all of which may gravely impact intellectual property rights for all of us:

1) SOPA and PIPA. These potentially very destructive bills would have allowed a broad range of takedown retaliations to those complaining of copyright infringement. So broad, that many entertainment companies (who would theoretically benefit from additional copyright policing) themselves worried that they wouldn't be able to pass muster and boycotted the bills by blacking out their websites or otherwise making statements against them. Fight for the Future, a non-profit defender of internet freedom, proclaimed victory on their site, with respect to the January 18th online protest (phone calls flooding into Washington, website blackouts including Wordpress and Wikipedia) shifted the opinion in DC, such that the bills were shelved for the time being, effective January 20th.

SOPA, aka the Stop Online Piracy Act, is the House of Representative's offering and PIPA, the so-called Protect Internet Privacy Act was courtesy of the Senate.

Both had provisions that would permit the blocking of websites that were accused of copyright infringement, and allow payments to be blocked to these sites as well, while granting immunity to the payment processors or ad networks that cut off sites with "reasonable" belief of infringement.

The non-profit Electronic Frontier Foundation points out the potential for abuse and bogus claims of infringement could seriously impact anyone with third party content, including social media sites like Facebook. All that would be required is for an IP rights holder to notify a payment processor like Visa/MC that there is an infringement, and that site's payment capabilities could be suspended. No actual legal action (i.e. court order) would be required for payments to be blocked. A series of claims and counter-claims are the only recourse.

In their own words: "In essence, Hollywood is tired of those pesky laws that help protect innovation, economic growth, and creativity rather than outmoded business models. So they are trying to rewrite the rules, regulate the Internet, and damn the consequences for the rest of us." Under current law, a copyright holder can request that infringing material be removed, but can't shut down an entire website (as SOPA/PIPA might have allowed).

In his story, "The Real Reasons Google Killed SOPA / PIPA," Forbes contributor Scott Cleland names Google as the chief architect and organizer of anti-SOPA/PIPA efforts on the internet. Their motivation is to protect their own interests which institutionalize internet piracy and - among other sins - minimize offenses by others by failing to penalize infringing sites with lower rankings, while lowering rankings for sites which compete with Google.

2) The MegaUpload takedown. What a crazy story. Hard to know what to make of that one. Like other famous takedown stories (Napster comes to mind), this is a case where file sharing led to what is alleged to be $500 million dollars in stolen revenue from pirated films, music and other I/P. Federal prosecutors cited the fact that the site was set up to specifically reward users who uploaded pirated content, and that requests from copyright holders to take down pirated material were ignored.

Whether the timing was geared to the SOPA and PIPA bill online boycotts, the day before, is hard to say.

The Electronic Frontier Foundation criticized the arrest of MegaUpload owner Kim Dotcom (that's his legally changed name) saying the arrests set a "a terrifying precedent. If the United States can seize a Dutch citizen in New Zealand over a copyright claim, what is next?" Hmm, not breaking the law, maybe? I guess our Feds used the fact that the company had servers in Virginia as its legal foot in the door to get indictments and enlist NZ authorities to make arrests.

The USA Today article which speculates that this takedown might somehow threaten internet commerce - as file sharing is a vital part of life on the net - is a bit overwrought, I think. The fact that MegaUpload was ignoring copyright complaints sets them apart from operations like YouTube, which takes them seriously and supplies plenty of warnings about using other peoples' I/P. Also, Kim Dotcom has an admitted background as a hacker and has prior convictions for manipulating stock prices and insider trading. All in all, not a choirboy.

3) Kim Dotcom starts to look almost heroic compared to what's on the horizon in the form of ACTA, the very veiled Anti-Counterfeiting Trade Agreement which is on its way to a vote in the EU Parliament.

Forbes contributor and blogger E.D. Kain describes this international treaty as having been largely been contrived behind closed doors (starting with the Bush administration, and now signed by Obama as of last year). It allegedly contains many of the same broad takedown provisions as SOPA and PIPA. Those bills were so punitive that even content owners protested it to Congress to block its passage, as mentioned above. Many European countries have signed ACTA already, although some nations strongly oppose it.

A petition to the European Parliament, opposing ACTA, has been initiated by AVAAZ, an international internet democracy advocate. When on considers the importance of the internet in movements like the Egypt protests, one begins to realize that this goes far beyond just I/P and copyright protection. In that situation, social media like Twitter and Facebook provided vital communication links that propelled the democratic protests in that country. Oppressive regimes would certainly have an interest in controlling or limiting that access.

Laws exist to protect I/P infringement, as voiced by many observers of the MegaUpload takedown. The rule of law prevailed. We don't necessarily need more law or regulation as much as innovation, as mentioned in the PCWorld coverage which included this quote from Techdirt, which points out that the apparent battle between the advancers of technology and the owners of content is not going to be solved by legislation: "As we've seen over and over again, the most successful (by far) 'attack' against piracy is awesome new platforms that give customers what they want, such as Spotify and Netflix."

In addition to I/P provisions, ACTA will also reportedly introduce new regulations about buying medicines online. In effect, it would enforce the patent protections of Big Pharma at the expense of making generics available to poor countries who might not have access to medicines at higher costs.

Laws like ACTA may be more about internet democracy and freedom of speech than simply protecting copyright, or forging international treaties. Another one in the works, the TPP (Trans Pacific Partnership Agreement) is of concern to the US, according to the Electronic Frontier Foundation. Like ACTA, the negotiations over the TPP are held in secret and without public scrutiny.

I think the takeaway from this past week is that we need to be very alert to new laws and treaties that seek to control the internet and "solve" content abuse and piracy problems by usurping all of our freedoms.

The Internet is too important to the commerce and freedom of speech of too many to be lax about opposing those that would try to restrict this vital pipeline of communication.

Some Love from China for Doc Filmmakers

2012-01-18T19:45:00.000-08:00

Doc production is a labor of love, so we are always glad to see them get a little in return. This post is devoted to the doc film, with some news from far and near that might help them along their way a bit. The first is a story about a windfall for the traditional doc resulting from China's recent decision to crack down on reality TV and its perceived vulgarity.

The policy change, as told by Peter Hamilton, reality TV consultant and developer, from his blog DocumentaryTelevision.com, has shifted China TV programming in the direction of more content-driven fare.

Hamilton cites the recent NY Times story about the show that broke the camel's back and jump-started the new policy. Titled If You Are the One, it's a dating show with multiple female contestants being suited by a horde of male contestants, who boast of their assets. Complete with nude photos of one contestant circulating online, and a lawsuit where a former male contestant is trying to get a girl to return the BMW he gave her... it's not too hard to see how the show offends a number of cultural taboos in conservative China. Aside from "vulgarity," officials cite excessive materialism (what, that's a problem??). The show doesn't really set the tone for Chinese youth that the Chinese government is craving to portray. Interestingly, the producer/developer of that show was a Fremantle Media employee who was looking for Chinese production companies to buy the rights to develop foreign TV show ideas. We, in America, tend not to think of Fremantle (creator of popular giants like American Idol and America's Got Talent) as a purveyor of corruption.

Be that as it may the new government policy will, according to DocumentaryTelevision.com, leave a place in CCTV's programming for a surge in "less unhealthy" entertainments, i.e. documentaries along the lines of A&E or History Channel long-form shows. As a result, CCTV's (China Central Television, the predominant state-owned broadcaster) Documentary Channel is thriving.

In more local news, IDA (International Documentary Association) is sponsoring an educational Fair Use event as part of its "Doc U" program. In their own words "Doc U is the International Documentary Association's series of educational seminars and workshops for aspiring and experienced documentary filmmakers. Taught by artists and industry experts, participants receive vital training and insight on various topics including: fundraising, distribution, licensing, marketing, and business tactics."

The IDA is a great filmmaker resource, a membership-based non-profit that provides advocacy and various filmmaker services, including fiscal sponsorship (you can fundraise for your doc under their 501(c)(3) umbrella, saving you the paperwork hell of filing your own paperwork with the IRS, etc.), news, education and networking opportunities. They also administer annual grants totaling $75,000 to doc filmmakers, through their Pare Lorentz Documentary Fund.

40 Stunning (and PD) Old Photos

2012-01-06T10:23:00.000-08:00

Over the last year, I've had many occasions to research old, public domain photos. There are many sources of these - including the National Archives - which has a number of collections, some of which are downloadable in high-res, digital format.

Recently, someone shared this link to Top Design Mag's feature on 40 Stunning Old Photos, which I wanted to pass on.

Most of these are pre-1923 and can be re-published freely. Enjoy!

Donald Rumsfeld, Spicy Peanuts and Christmas Miracles

2011-12-19T12:50:00.000-08:00

This is one of those stories that is just begging for an avalanche of bad puns (are there any other kind?) and the authors of this Time article - about how Donald Rumsfeld's picture ended up on Tyrrell's spicy peanuts - have not held back. ("Whichever way you look at it, it's nuts.")

The one way they haven't looked at is from a publicity rights perspective.

Let's just say, to continue the double entendre, it is a Christmas miracle that someone didn't get sued or at least upbraided for this commercial use of a photograph of the former Chief of Staff on the peanut package by this cheeky UK snack company. It appears that their marketing director thought that if he licensed the image from Getty, he'd be all set. He says the use of Rumsfeld was coincidental, and one wonders if he even realized it was Rumsfeld in the photo from Getty (which limits the use of the photos it licenses, often restricting or charging a lot more for commercial uses, presumably to include royalty payments.)

I took a look at that particular image on Getty's site (wasn't hard to find, it was the only result under "Donald Rumsfeld and Geisha") - and noted this restriction: This image has no model or property release. Any commercial use requires additional clearance. "

Needless to say, if you read the Time article, nobody in Rumsfeld's camp (to say nothing of the Geisha) knew about this use. I guess Rumsfeld had a sense of humor...or vanity about the whole thing, and didn't press matters with Tyrrell or Getty... and the photographer may have already sacrificed any copyright interest he had as a government employee. All I'm saying is there's a whole lotta stuff that could have blown up on this one!

Merry Christmas Tyrrell, and Getty... I wouldn't try this at home!

Justin Bieber and YouTube: Modern Day David and Goliath?

2011-11-19T14:03:00.000-08:00

If you have been following it, there's been a long tale in the making about Justin Bieber's rise to fame on the pages of YouTube.... and recently some hype about a new bill that could send him to jail for uploading video covers of other artists' songs.

Most of us know that Biber got discovered on YouTube, after posting performances of himself covering various artist's tunes, all while he was competing in a Canadian talent show. The story goes that the uploads were originally his way of letting distant family members see him perform, since they weren't able to make it in person.

The precocious and talented kid singer got noticed by some producers (Justin Timberlake among them) and eventually got a record deal and a catapult to fame out of it.

In recent months, Bieber has become a bit of an emblem for those who are fighting for net copyright freedom. A non-profit called Fight for the Future has been mounting a "Free Bieber" campaign that looks to be a bit of a sham, in light of the fact that what it criminalizes isn't what Bieber has been doing.

What is Fight for the Future's real motive with their Free Bieber gambit? They are most likely using his example in trying to being attention to a new bill afoot, S. 978, which will criminalize performing others' songs without permission. That, however, will not materially change what's been happening on YouTube for years now. According to legal analysis (see the Copyhype blog) those artists aren't, in fact, performing in the sense that will be prohibited by law. What they are doing is recording and uploading other artists' compositions without licensing them (a fine point of difference by a difference nonetheless).

According to law, it is YouTube that is doing the "performing." Apparently, performing society payments are already made by YouTube out of their revenues from advertising and whatever ways they make their money these days.

On the other hand, strictly speaking, artists should license the songs they cover from the publishers of the songs they upload. And they don't. And no one is enforcing that they do. Why? In all likelihood, because the artists who post their videos on YouTube, singing in their bedrooms and strumming their guitars - aren't making a dime from these recordings and the publishers know it. No one's getting rich.

Well, except maybe Justin Bieber.

And, as the Hollywood Reporter tells it, Bieber won't go to jail for posting videos on YouTube, any more than any other kid uploading bedroom performances of hit songs.

There are several layers of rights needed to use another's song, in particular the synch rights which allow an artist to "synchronize" a composition written by another into a new filmed performance. These are also referred to as the publishing rights for the song.

But, as mentioned, for whatever reasons, publishers have not been aggressively getting artists to take down their videos with uncleared synch rights. And that includes Justin Bieber.

As the Electronic Frontier Foundation (internet rights advocate) points out: "As far as we know, no typical YouTube user has ever been sued by a major entertainment industry company for uploading a video. We have heard of a couple special cases, involving pre-release content leaked by industry insiders, but those aren’t typical YouTube users. And there have probably been a few lawsuits brought by aggressive individual copyright trolls. But no lawsuits against YouTubers by Hollywood studios or major record labels. That’s right — millions of videos have been posted to YouTube, hundreds of thousands taken down by major media companies, but those companies have not brought lawsuits against YouTube users."

Bieber and millions of others have infringed copyrights in posting videos, but no one is going to jail. And no one, not even Bieber apparently, is getting sued for copyright infringement!

As Copyhype goes on to point out, "Given that over 48 hours of video are uploaded to YouTube every minute, the percentage of people who face liability for copyright infringement on the site is effectively zero."

The odds are in favor of the aspiring Biebers of the world, who can safely croon and strum and upload away, without fear of lawsuits or criminal charges, or much more than a takedown notice (and even that's not likely for the typical user). The sheer impossibility and impracticality and futility of enforcing copyrights on casual users is.... a beautiful thing.

If Bieber took down Goliath, it's not YouTube at all, but more likely he demonstrated that one can still get around the lock hold that the publishing world has on music. You can still sing songs for your friends and family and upload them and build a rep for yourself. And the new law won't change that.

Steal This Blog

2011-09-28T10:12:00.000-07:00

In 1970, famous Yippie, anarchist, anti-capitalist and overall rebel Abbie Hoffman published a manifesto on sticking it to the man, entitled Steal This Book. As described on Amazon: "A driving force behind the social revolution of the 1960s and 1970s, Hoffman inspired a generation to challenge the status quo. Meant as a practical guide for the aspiring hippie, Steal This Book...became a cult classic with over 200,000 copies sold. Outrageously illustrated by R. Crumb, it nevertheless conveys a serious message to all would-be revolutionaries: You don't have to take it anymore."

The internet and new generations of artists who are challenging large corporate control of copyright... are in fact changing the attitude of the public and the courts about the protections of free expression built into copyright law.

As this recent story in the Kansas City Star points out, the changing legal landscape is making it easier for producers who are genuinely creating new and transformative works, to sample and use the copyrighted works of others within the framework of Fair Use.

Or, in the words of Hoffman, "You don't have to take it anymore."

Sample this! Authors say use of fair use is growing...

This post is dedicated to the memory of my dear friend and clearance colleague, Sue Brownstein, who had a deep sense of social justice... and would appreciate this.

Copyright Infringement: What It Is... What it Ain't

2011-09-14T20:10:00.000-07:00

"The industry custom of obtaining 'clearance' establishes nothing other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits."

- Polydoros v. 20th Century Fox Film Corp

If there's an issue which is often confused by producers, actors, and the general public...it's copyright vs. trademark.

The point being: producers clear a lot of stuff they don't need to through - among other things - ignorance or false assumptions regarding their First Amendment rights of expression, the Fair Use principles which follow from the Constitution, and a failure to differentiate between Copyright and Trademark issues.

This costs productions money, time, and establishes a culture where clearances become the rule... rather than following from an understanding of fundamental rights of expression, and correct analysis of risk.

So let us differentiate a bit here. I was fortunate to attend a special seminar on Fair Use principles for CLEAR, Inc. (association of research and clearance pros) here in LA, with special guest Alonzo (Al) Wickers, of Davis Wright Tremaine. As an entertainment lawyer who consults on a variety of hit TV shows and high profile film projects, Mr. Wickers has his pulse on a lot of the copyright and trademark issues of greatest interest to producers and their business and support staff. I want to sum up a few of the salient points from that seminar (and add a few of my own).

Copyright is a Constitutionally granted right, which flows from Article 1, Section 8: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

What's copyrightable:

Writings

Visual art

Music

Choreography

AV works

Maps

Not copyrightable:

Ideas

Single words

Short phrases

Corporate logos (trademark)

The above tells you not only what you need to "clear," therefore, but what you don't.

Where it comes to Fair Use in copyright, there are no bright line tests (eg "less than 10 seconds"). There must be a case by case assessment.

Some of the principles involved are:

Purpose of use - Commentary, criticism, parody, reporting

Nature of work -

Published vs. unpublished - unpublished have greater protection because creator is supposed to have right to first publish

Creative vs. factual - anything that took creative effort gets greater protection

Amount used

Effect on market

A great website for Fair Use is the one created by the American University Center for Social Media, which relates to documentary fillmmaking, primarily. Nonetheless, their analysis points and codes of best practices apply to all Fair Use arguments, and it's a great resource. I believe that most producers would do well to spend some time studying the general principles of Fair Use, particularly in light of some recent cases where it's been successfully and poorly argued - one would think they would know better. (Carol Burnett v. 20th C Fox case, the former...Hangover 2, the latter... both cited in this blog).

Bottom line: You do your analysis and decide whether you have a Fair Use argument before you decide to reach out, or not, to seek a permission or license.

Trademark protection is established primarily by the Lanham Act in the US, "a piece of legislation that contains the federal statutes of trademark law. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising."

There are some important distinctions between copyright and trademark violations, from a producer standpoint. A key one is that copyright violations are subject to injunctive relief by courts. That means that a big picture can be shut down, fail to open or release to DVD as planned by a court action granting that relief to a plaintiff.

It may not happen often, but it can happen. See the recent "Hangover 2" story on this blog for an example of threatened injunction… needless to say it makes the producer position for negotiation a bit strained when the possibility of an injunction is hanging over the studio's head.

Conversely, trademarks appear on products to be seen…. they are a protection for the owner, but they are also a perpetual ad for its products: the Nike swish, the Starbucks logo, the apple of Apple proclaim the product as what it is. And further, "buy me!"

A key factor in using them in expressive works, then, is whether they appear for their intended use or one that is not intended. Thus, fair uses of products in TV and film would include such things as:

newspaper or mag titles in dialog

cars in car chases

clothing, shoes

appliances, electronics

ipods, ipads

As long as only enough of the mark is shown as is reasonably necessary (or incidental) to establish that it is a "coke", for example, and that no implication of sponsorship or endorsement is present… such uses are protected by the First Amendment in expressive works (NOT commercial uses, like T-shirts or other merchandise).

Tarnishment of the mark - using it in a defamatory way, or one which creates an unfavorable association, is one way to dilute a trademark. Blurring a mark, causing it to lose its unique identification, is another way to dilute it.

The Trademark dilution act of 2006 - limits dilution to primarily commercial cases, not expressive works.

Hence, this artistic commentary on "Barbie" - Stir Fry Barbie - is protected, as an expressive work.

Furthermore, exemptions exist (as in all Fair Use) for parody, comment, criticism. In the case of Carol Burnett v. 20th C Fox, the plaintiffs alleged not just copyright infringement but a violation of the Lanham Act, as regards trademark infringement. (Burnett lost):

"An episode of the TV cartoon "Family Guy" made fun of comedian Carol Burnett's image and signature characters from her 1960's comedy variety show. In Carol Burnett v. Twentieth Century Fox, the court ruled that the show's use was fair, in part because the "Family Guy" episode was designed to parody Burnett as a public figure, using a relatively small percentage of copyrighted material, and would not substitute for the original in any market."

The case was dismissed under the "Anti-SLAPP" laws here in California: "A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition."

Here's a summary of the case from the California Anti-SLAPP Project's website: "In response to this Family Guy clip, plaintiffs Carol Burnett and Whacko, Inc., filed this suit against defendant Fox for: (1) copyright infringement; (2) violation of the Lanham Act, 15 U.S.C. § 1125; (3) violation of California’s statutory right of publicity, Civil Code § 3344; and (4) common law misappropriation of name and likeness. Defendant now moves to dismiss plaintiffs’ claims. Defendant also brings a special motion to strike Burnett’s supplemental state law (claims) under California’s anti-SLAPP statute, California Code of Civil Procedure § 425.16." Whacko, indeed, as it turns out.

Product Placement has changed the trademark landscape to a degree, because the public (and producers, and trademark owners) now may grow to assume that the casual appearance of a product implies an endorsement. This might relate back to the over-clearance argument which opened this discussion. It has its downside.

However, ad sales departments of networks are often far more conserned about keeping national brands out of its shows (to avoid alienating potential advertisers) than Legal departments at the same networks. Again, these trademark issues have more to do with relationships and not stepping on toes than on actual legal infringement.

Producers tend to know who the really obnoxious trademark holders are, and tread carefully.

Circling back to the quote from Polydoros v. 20th Century Fox Film Corp:

As long as Wisdom exists, then….one can reasonably expect that Clearances will never go away, nor should they. Having a diligently laid paper trail, knowing the comfort for risk of the production team or studio or distributor on the project, and having a savvy legal and clearance team - all can save a lot of cost, unnecessary clearances, and a possible injunction that would be the nightmare no producer wants to ever experience.

Producers, ignorant of their rights, who then "clear everything..." help establish a climate where everyone expects everything to be cleared, always.... driving up costs.

Real wisdom (as opposed to acting out of fear, or superstition) in clearances would begin with an understanding of some of the basic principles which govern our expressive rights. Knowing the difference between Copyright and Trademark infringement is a good place to start with such wisdom, and I hope this blog article helps shed some light therein.

Tattoo Mania! Don't We Own The Artwork On Our Bodies?

2011-07-28T12:01:00.000-07:00

Most of us have followed the Hangover 2 / Tattoo saga from the highly publicized efforts to prevent the movie's opening this past May. This summer saw the resolution of the very high-profile lawsuit against Warrner Bros over the film's depiction of a tattoo intended to parody Mike Tyson's tribal facial tattoo.

For many in the entertainment industry, this settled case now leaves new questions about production of feature films, reality TV, commercials - any of which might feature talent with tattoos. How zealous do we now have to be in clearing these works of body art? And how careful do celebrities or actors or.. anyone.. have to be in securing the copyright for their tattoos - if they can - when they get the work done?

The case also no doubt left many producers a little shakier about the parody defense, and Fair Use in general. Relying on that kind of defense while boldly ripping off an artist's work was a bit naive, since the film was parodying a situation or a character perhaps more than an actual work of art... if you follow that logic. When Weird Al sings "Eat It" to the tune of Michael Jackson's "Beat It," there is no question that he's parodying a song. This film really copies an artist's work, almost line for line, to make a joke. A subtle difference but a difference nonetheless. And so, the joke was on them in the end.

It possibly came as a big surprise to a lot of people, not the least of whom were the Warner film producers, that a tattoo artist could claim copyright protection. But the suit was taken very seriously by the judge of the federal court which, although it denied the artist's request for an injunction (to prevent distribution and exhibition of the film) did "see merit" in the case.

This case is interesting in that it illustrates an important (and often confusing) point of copyright law: One can own an original work of art and yet not have the right to sell copies or reproductions of it.

S. Victor Whitmill, the tattoo artist who gave Tyson the original tattoo in Vegas in 2003, claimed that he owned the copyright on the original tattoo on Tyson's face. The artist claimed that he had an agreement with Tyson that Whitmill would retain the rights to the tattoo. He supposedly registered the work for copyright in April, 2011 (shortly before filing the lawsuit). Whether the agreement with Tyson was an oral or implied agreement, or one that was committed to writing, it doesn't matter much in copyright law. Nor is a formal registration required, although it probably helps to bolster the artist's case.

According to copyright law, as expressed in this US Copyright Office FAQ: "Your work is under copyright protection the moment it is created and fixed in a tangible form that is perceptible either directly or with the aid of a machine or device." So, you paint it... it's in a tangible form, it is protected.

I got a call, recently, from studio colleagues who are working on an anthology of drawings and illustrations. They were surprised to find that they might have to approach an artist for permission to use his artwork in their book, even though the owner of the illustration gave them permission. If you think it through, you can see some logic for this. If an artist does a painting, and sells the original, he/she can still sell lithographs or other numbered copies of the original, and would be the sole person to retain that right, by law, unless it was transferred by a written agreement.

Both instances - tattoo and oil painting - illustrate the same principle of copyright law which is, quite literally, the right to make copies of and distribute a protected work. Giving up the original art doesn't necessarily surrender the right to copy it, or "copyright" that is automatically awarded to creators of original works, by law.

According to a May article in the NY Times, there are a few precedents for such tattoo lawsuits as the Hangover disaster: "David Beckham and his favorite tattooist, Louis Molloy, had a public dispute that year over his plan to highlight them in an advertisement. The feud culminated in an interview with Mr. Molloy in The Daily Mirror that ran under the headline - I Own Beck’s Tattoo .. and I’ll Sue.”

Predictably, Warners sought to invoke a Fair Use argument. They argued that the use was parody, and the inability to make fun of this in its depiction would stifle the creativity of the producers. Fair Use involves a number of factors, including how much the protected work is featured in the derivative work, whether it truly is parody, commercial benefit derived from the use of the work, and... most importantly... the question of whether something new was created using the derivative work, or if the original was merely copied. Since some of these arguments can be subject to counter-argument (as we've seen here) and since most producers don't want to end up in court, these works are often either cleared and paid for up front to avoid later claims (Warners wishes that it had taken that course, you can bet), or the claims are settled out of court.

Why didn't they clear it? This is a new area of law, and it is evident that no one thought that it was going to get to this point. They must have really though the Fair Use argument was strong enough that there wouldn't be a challenge to the use. Besides, it's only a tattoo, right? 20/20 hindsight shows that they were sadly mistaken in whatever logic they exercised, and that is why the people that do clearances have jobs (yay!) Although, a script clearance person may have lost theirs, over this particular fiasco. I'd like to think that this got flagged and the producers chose to charge ahead, anyway. That has happened to me more than once, sometimes it works out OK for the producer, and sometimes not. Most cautious producers would rather clear than risk a lawsuit, particularly if it can be cleared easily and for a reasonable license fee. In many cases it's easier to clear it, certainly easier than adhering to a point of law that might be questionable. (End of self-promotion).

I will add that there are clear-cut cases of Fair Use where producers of derivative works should obviously exercise their rights, notable ones being the Obama artwork that was itself the subject of a lawsuit, and the Wikipedia / FBI face-off - both discussed earlier in this blog. In any event, one must do a thorough analysis and make the best decision given one's understanding of the law, and the realities of clearing or not clearing the work. I also constantly refer people to the Center for Social Media website which, although it's really geared to documentary filmmakers, still gives a lot of understanding of Fair Use principles for any producer.

Celebrities and others who may anticipate needing the copyrights to their tattoos may think twice about paying for and getting a release of the rights when they get their tattoos done. And it might become customary for these kinds of written agreements to go into use, where the artist is granting all of the rights to the client, and warranting that it's an original work, and perhaps even indemnifying the actor against any claims. Of course, that might mean some larger fees to the artist as well.

Matt Damon Schools Wall Street, and the White House... in "Inside Job"

2011-05-16T20:20:00.001-07:00

With the DVD release of Inside Job, the Oscar-winning doc that clearly lays out the players and the scheme that led to the 2008 market crash and massive bank failure, Hollywood sends a message to Wall Street, and the White House.

That film, narrated by Matt Damon, gives new insight into Obama’s jab at Damon in the President's recent speech at the White House Correspondents Dinner. The address, loaded with jokes about the birth certificate circus, pointedly addressed to Trump (who was in the audience) also landed a barb at Damon: “I've even let down my key core constituency: movie stars. Just the other day, Matt Damon -- I love Matt Damon, love the guy -- Matt Damon said he was disappointed in my performance," Obama told the crowd. His retort: "Well, Matt, I just saw The Adjustment Bureau, so...right back atcha, buddy."

But after seeing Inside Job, viewers will be doubtful that it's The Adjustment Bureau that has galled the President.

The actor’s comment on CNN that “Obama has misinterpreted his mandate” takes on a new meaning with the broad release of this tell-all doc. In fact, after seeing the film, one wonders if Matt was softening his real sentiments. Indeed, producer Charles Ferguson began his Academy Award acceptance speech with the comment that three years after the world’s worst financial meltdown, “not a single financial executive has gone to jail.”

Compare that to the S&L disaster in the late 80s when 1,500 bankers went to jail.

But, beyond that, the White House has given jobs to some of the most egregious perpetrators of the banking disaster – and placed or retained some in regulatory positions for which they have clearly demonstrated their unfitness; the film leaves no doubt about that.

Damon, a strong Obama supporter, has appeared remorseful at having to relinquish his hope. With Inside Job, we get a very skillful telling of an economic story that is really, in the final analysis, a bank heist, as Ferguson tells us: "It is not so technical that average people cannot understand it. It was simple. It was a bank robbery - not committed by someone who walked into the bank but by the president of the bank."

It is hard to watch this doc and not to hope – more than anything else - for some criminal indictments.

Handshake Deals Are Alive And Well In Hollywood

2011-04-12T10:57:00.000-07:00

Handshake deals, oral or verbal agreements. Call them what you will, they still hold weight in Hollywood.

A show developer has won a $4 million claim against A&E...again! this time in appeals court. The high court upheld the South Carolina court award to the plaintiff who pitched and developed the hit reality show Flip This House (remember the housing bubble? yeah, back then).

Apparently Richard Davis, a real estate broker and house-flipper, brought the show idea to A&E, with an oral agreement to split the show profits 50-50 in exchange for Davis developing and appearing on the show, even though the compensation wasn't nailed down in writing at that time. Davis appeared in the first season of the show but left as a result of the compensation dispute to develop a competing show for TLC.

The S.C. court recognized the validity of the original oral agreement, and this week that decision was upheld by the higher court.

THR makes the point that this should be a lesson to producers to memorialize their agreements with followup documentation. Indeed. I draw a slightly different conclusion, namely that producers should not assume that their deal partners will fail to remember, have supporting evidence for or to enforce their oral agreements with producers.

The oral agreement has an interesting history in Hollywood. In spite of the famed Samuel Goldwyn line that "an oral agreement isn't worth the paper it's printed on," the handshake deal is still a valid contract and its breach can still be taken seriously by courts.

Erickson Law, on its blog, cites the case of Lisa Kudrow and her verbal deal with former manager Scott Davis who sued for unpaid commissions based on that agreement. The court did take the agreement as valid, and the case was appealed on other issues. As for how to prove that such a deal was in place, Erickson attorney Erin O'Kane suggests "there are several ways to do this including having witnesses to the agreement, showing that the parties acted in reliance of the terms of the agreement, and providing evidence that supports the existence of the agreement."

Of course, no discussion of this subject in recent history would be complete without telling the tale of the the case that sent shock-waves through the entertainment world, the famous Basinger vs. Main Line case, settled in 1993. In that case, Kim Basinger was ordered to pay $8.9 million to Main Line Pictures for breach of her oral agreement to appear in “Boxing Helena,” a picture on Main Line’s slate. In that case, Basinger switched agencies after getting the script and agreeing to the role. The new agent at ICM, who stood to make no commission on the deal, advised her against the role. Main Line alleged that was the motive for the advice from ICM, and claimed that the agent induced the actress to breach her agreement. Both ICM and Basinger got sued, although the judge later dropped ICM from the suit.

celebrity profile

The apparent reason that ICM got off the hook, based on motions from the lawyer who rep’d both ICM and Basinger, was that the advice from the agent was in her best interest and protected by law. (However bad that advice turned out to be, I might add).

The Variety article from that time discusses various motives on the part of the agency, and tactics such as “script control” in order to have a rationale for backing out. However, Main Line had followed up with a deal memo (so they did follow THR’s admonition).

But, deal memo or none, as evidenced by the recent judgment with the A&E house-flipper deal, the oral agreement by itself holds weight.

I’ve had my own share of nerve-wracking experiences with talent backing out of deals that were made by their Rep’s, notably while working on Disney's "Cinemagique" starring Martin Short, produced initially for the Paris theme park. Cinemagique involved a host stepping into and interacting with the movie characters in a collage of clips, and as such involved moral rights in Europe, since we would be altering the original footage (see the Oprah blog entry, below). It was a complicated clearance mess. When one of the biggest stars of the time (or his rep) took back a permission they had given us months before, shortly before our launch date, I found myself essentially being deposed by a VP of Legal for the studio. I had just barely enough info in my file to document who said what, when. That harrowing experience really made me a believer in the confirming letter (or e-mail), itself a form of deal memo, to affirm the oral agreement made in a phone conversation.

With the advent of email, I’d say that this happens less. Rather than a phone conversation, these agreements are more commonly made in an email before the agreement is formally signed. That email traffic, saved, is a pretty good safeguard.

Of course, there is nothing like the signed agreement in hand. But many TV shows would never be produced, let alone make it to air if a signed agreement had to be in hand. Deal memorandums, follow-up confirmations (even a polite thank you email worded along the lines of “so happy to hear your client has agreed to this use”) can go a long way. These provide the electronic paper trail that can be used in case of a dispute, and which will also serve to protect the producer in the event of a lawsuit or an E&O claim.

One place an oral agreement is going to do you no good is in the case of a minor. Even written contracts have been disaffirmed by minor actors, exemplified by the Vanessa Hudgens (of High School Musical fame) case with former lawyer Brian Schall. The star claimed that $150,000 in wages to the lawyer weren't payable because the contract was signed when she was 16. Schall sued in 2007 and the case was settled in 2009.

Brian Wilson, of the Beach Boys (pictured here in a publicity photo of the band, rear center) sued to reclaim his publishing which was sold by father and former band manager, Murry Wilson, for $700,000 to Irving Music in 1969. It's quite a wild story as Wilson had a long string of problems with drugs and the mental difficulties undoubtedly brought on by them. His relationship with the father was very contentious as well, with claims of abuse. Pertinent to this discussion is this, according to the LA Times article at the time, "The lawsuit claims that in 1962 Brian and Murry Wilson agreed orally to divide profits from their new publishing company, called Sea of Tunes, and that between 1962 and 1969, the son wrote or co-wrote more than 100 songs for the company. But, the court filing claims, since Brian was underage and there was no court approval of the oral agreement, the contract was not legal."

Although Wilson didn't recover his copyrights, he was awarded $25 in damages and unpaid royalties.

Oprah: Don’t Try This In Paris!

2011-03-31T08:56:00.000-07:00

A federal judge in Pennsylvania has tossed out a book author's $100 million lawsuit against Oprah Winfrey for violating the copyright in the political booklet, How America Elects Her Presidents.

The judge in this case ruled that the use of questions from the book (which Oprah supposedly read out loud in a quiz session with a whiz kid first grader, who got the answers right... btw) didn’t constitute infringement.

Why?

The copyrightable thing was the compilation, the arrangement of the facts in the book. But apparently, the author didn’t copyright the book as a compilation. The facts, themselves, weren’t copyrightable and the judge agreed that the facts were “not original.”

(Oprah is pictured above in a publicity photo for her OWN cable network.)

In a copyright infringement case from France involving Carla Bruni, chanteuse and French first lady, the outcome may be different. Bruni is suing a French newspaper for publishing an audio clip of her performance of a classic French song, in connection with the songwriter's recent death. Certainly a topical use.

However, that country and many European nations have stronger protections for artists, known as “moral rights.”

According to Wikipedia: “Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright rights to a work to a third party, he or she still maintains the moral rights to the work.”

Moral rights were first recognized in France and Germany and were later included in the Berne Convention in 1928. These rights respect the creator’s rights to attribution, anonymity, and the maintaining of the integrity of the work.

Apparently the audio clip that was posted by Midi Libre was a “draft version” of the song. While that kind of use might be protected as a news item and “fair use” according to US law, the enhanced protections for artists in France make Bruni’s case a plausible one.

I would include a photo of her here, but I'm scared.

Photo Libaries Cash In On Government Works

2011-03-14T10:39:00.000-07:00

While doing some research about government-owned photos, I came across an interesting blog entry from The Online Photographer. Apparently, Getty Images (and other big image banks) license out images that they don't actually own any rights to, but simply obtained from the National Archives:

"It seems that Getty Images learned a few years ago that they could buy 4x5 negatives of images from the US National Archives for $5 each. They bought thousands. Now they are selling these same images through their stock agency and claiming copyright on them. The vast majority of the images in the National Archives were taken by government employees and are public domain."

And, as one blog reader comments:

"Getty Images and Corbis both license public domain content from the National Archives, Library of Congress and other government sources and have done for years. The agencies provide PD content on their sites with enhanced keywording and quick availablilty for professional usage. The Libray of Congress and the National Archives will provide images but not licenses."

There are several distinctions to be made here.

First of all, some photo and footage archives provide master copies of the images in their libraries, but do not claim to have all the rights (or any rights) to license the photography. They aren't the copyright holder, nor do they represent them. They are only a source for the masters.

Although they should tell you this, it is also your responsibility - ultimately - to find out if they are licensing this image to you and indemnifying you for any possible claims regarding the rights to the photography. (One simple way to do this is to read their license language, another is to have them sign your license to ensure you have the coverage that you need). It sounds like Getty is doing their due diligence, discovering that these photos are in the public domain (as the overwhelming majority are) and then providing not only a high-resolution digital image, but also a license which indemnifies the licensee.

Another copyright fine point to consider in the area of Government Works is when they are, or are not, eligible for copyright protection.

According to US Law, "Copyright protection... is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."

That means that a work created by the U.S. government or its employees cannot receive copyright protection, but a work done by someone outside the government with its copyright protection could be later transferred to the U.S. government, and in that unusual case, it could still have copyright protection.

Here's an example, courtesy of Photo Attorney (I feel like there should be a trumpet flair, enter... da da da daaa... Photo Attorney! ok, never mind). Anyway, this guy has some interesting points about this scenario. He cites the common practice of photographing public statues for postcards, and so forth, which copies would be unrestricted if the original work had no copyright protection, right? Copyright means, literally, the right to copy.

But, what if the statue wasn't made by the government or its employees, but was commissioned? Photo Attorney?

"Sometimes, however, copyrighted works are created by non-government personnel for the government, such as when the government commissions a piece of art. The artist later transfers the copyright to the government. The "government works exception" then allows the federal government to hold the copyrights for those works transferred to it by assignment."

He goes on to point out that some observers feel that the government may abuse this exception to get copyrights to which they might not otherwise be entitled. And suggests that you consult someone like, Photo Attorney! Not necessarily a bad idea.

The Vietnam Women's Memorial Foundation is using

the Government Works Exception as a basis to sue

those who have sold photographs of the memorial.

(Photo courtesy of iStockphoto.)

But, as far as using photography from the National Archives, the archives themselves point out that most of the photography is free of copyright. That would apply, similarly, to photography from US Govt agencies like NASA, US Fish and Wildlife Service, etc. Of course, one would have to carefully research each image from the archives on the respective government sites to ensure that the photo is in the public domain. And, other rights issues could apply. Even if they are copyright free, if people appear in the photos, they may have publicity or privacy rights, or other contractual protection (a model may have appeared in the photo and re-using that person's image commercially may require clearance, for example).

In the photo, above, of the Statue of Liberty... the statue itself is owned by the US Government. But, who took the photo? Aha! They will have rights to the photo, potentially, even though they don't owe anyone a dime for the right to take a picture of the statue. You will have to get the photographer's permission to use that photo, unless it's a photo taken by the government, itself. (Above photo is courtesy of the US Dept of the Interior, National Park Service, PD).

Confused?

Best to consult your friendly, local clearance person. . . I bet he will be cheaper than Photo Attorney.

Courtesy of Smiley Face

Celebs Take on the Gaming World!

2011-02-18T11:38:00.000-08:00

There is a gamer battle going on, and it's not just the ones being fought out in the Playstation and XBox worlds of "Ninja Gaiden," "Grand Theft Auto" and "Madden."

NCAA athletes, led on by former U of Nebraska quarterback, Sam Keller, want compensation for their likeness use in games by Electronic Arts. The NCAA has been making deals with EA to use the images of college athletes, and the athletes themselves want a piece of the pie.

The NCAA tried to get the case dismissed last year, but the Federal District Court didn't go for it. Apparently, the NCAA has $4 billion in licensing deals that could be affected by this lawsuit.

Of course, a decision here could affect celebrity image use in other venues, from merchandise to feature films.

At the core of the arguments is the idea of "transformative use," which is a test of fair use, whereby a creative work transforms the original idea or object and adds creative value and meaning. In other words, you aren't just profiting from exploiting a celebrity image without some substantial addition of creativity into the mix.

The teams are squaring off on the battlefield, with the obvious players on both sides: the labor unions - SAG, AFTRA and DGA - are arguing against liberal application of the transformative use test. On the other side, you have producers like Viacom trying to argue for protection of the free expressive use that was a keynote of movies like the recent "Social Network" film and countless others that depict real individuals or real life events to some degree.

Another wrinkle is a lawsuit by Gwen Stefani and "No Doubt" against Activision, maker of the Band Hero game. They have also claimed violation of their rights to publicity in that game. Their case is a little different in that they had signed a deal with Activision, giving them rights to use their likenesses. But they didn't anticipate that the game would have them doing things (e.g. Gwen Stefani singing the Stones' "Honky Tonk Woman" in a male voice) that they would never do in reality. Transformative use and creative expression under the First Amendment are being argued by the game producer. Infringement of rights of publicity are being asserted by No Doubt. (They posed for the photo below, for this blog article. Haha. That's a joke, don't you know a transformative use when you see one?? Jeez.)

The battle is on! Anyone want to create avatars and create this "meta-game?" (i.e. a game about the game). We'll call it "The Battle of the Legal Titans!" I would pay good money to give SAG a couple of hard swats!

Hmm... don't steal that idea, I think there might be something there....

Wikipedia Gives the FBI a Lesson on Fair Use

2011-01-26T11:02:00.000-08:00

It's long been known in TV and film production, and rights and clearances circles... that government logos and insignia may be used in creative depictions. You can dress an actor in an LAPD uniform to shoot your dramatic movie scene, no problem.

Apparently the FBI needed an object lesson, as they took on Wikipedia in its use of the FBI shield on its site. Wikipedia was quick to point out that the intent of law was to prevent someone from fraudulently impersonating an FBI agent, not any use of the shield at all, in any context:

"In your letter, you assert that an image of an FBI seal included in a Wikipedia article is “problematic” because “it facilitates both deliberate and unwitting violations” of 18 U.S.C. 701. I hope you will agree that the adjective “problematic,” even if it were truly applicable here, is not semantically identical to “unlawful.” Even if it could be proved that someone, somewhere, found a way to use a Wikipedia article illustration to facilitate a fraudulent representation, that would not render the illustration itself unlawful under the statute. As the leading case interpreting Section 701 points out, “The enactment of § 701 was intended to protect the public against the use of a recognizable assertion of authority with intent to deceive.” United States v. Goeltz, 513 F.2d 193 (1975). Our inclusion of an image of the FBI Seal is in no way evidence of any “intent to deceive,” nor is it an “assertion of authority,” recognizable or otherwise. If you read the cases construing Section 701, you find they center onsituations in which defendants represented themselves as federal authorities. I think you will be compelled to agree that the Wikimedia Foundation has never done this."

Here's the NY Times story from this past summer about the FBI's cease and desist letter to Wikipedia, and their wise retort: FBI, Challenging Use of Seal, Gets Back a Primer on the Law

UH-OH! TROUBLE FOR SONG LYRICS ONLINE

2010-09-29T22:04:00.000-07:00

Interesting story in the Hollywood Reporter about a suit against websites that publish downloadable lyrics online:

Fri Sep 17, 2010 @ 09:38AM PST

By Eriq Gardner

Read lyrics to your favorite songs online while you still can.

That's probably a little alarmist, but a federal court in California is being asked to order LiveUniverse, which maintains several websites that display song lyrics, to transfer ownership of the sites to music publishers.

In August 2009, PeerMusic, Warner/Chappell and Bug Music filed copyright infringement lawsuits against LiveUniverse, alleging infringement for the posting of lyrics. This May, a federal court issued an injunction, ordering LiveUniverse to remove unlicensed material from its website. The defendant didn't, leading to a contempt order.

Last month, the district court ordered LiveUniverse to disable the websites altogether. That still hasn't been enough to get LiveUniverse to do much.

So yesterday, attorneys for PeerMusic asked that a court grant them domain control over lyricsdownload.com, completetealbumlyrics.com and lyricsandsongs.com.

Earlier in the week, the judge ordered the defendants to pay fees and costs for repeated failures to complete discovery obligations.

The Hollywood Reporter law blog, THR, Esq., whose tagline is "the intersection of Hollywood and the law," has some great entertainment-oriented legal posts. Check them out!

Google Gets Sued by Photographers

2010-04-08T12:03:00.000-07:00

Photogs Sue Google For Book Digitization

by Wendy Davis, Daily Online Examiner

Google has been hit with another lawsuit stemming from its book digitization project, this time by the American Society of Media Photographers and other trade groups.

In a lawsuit filed in the U.S. District Court in New York, they allege that Google's "reproduction, distribution, and public display of the visual works" contained in books and periodicals infringes copyright. The photographers seek monetary damages and an injunction banning Google from making any further copies.

FULL STORY HERE

What Obama Taught Us About Fair Use

2009-10-22T16:24:00.000-07:00

OK, not Obama exactly. Although, as a Constitutional law professor, I imagine he would have something to say on the legal issues.

Artist Shepard Fairey admitted using an AP photograph as the basis for his iconic red, white, and blue image of Obama, seen everywhere during the election campaign... and ever since. However, he argued that his alteration of the original photo added additional commentary and creativity to the original work, and that his rights to do so are protected.

This has launched one of the most lively and high profile discussions of the subject of "fair use" in a long time. Fair use is a term that applies to the conditions under which one can use someone else's copyrighted work without having that use constitute an infringement of copyright.

A good analysis of fair use arguments for one and all can be found in a recent article from SLATE Magazine (link, below). Actually, I like this analysis, made in one of the comments to the SLATE article, by "hawkeye1976":

"When I took copyright law several years ago in law school, I learned that the purpose of copyright is to give the author an economic incentive to create the work. It does so by providing a limited monopoly over the work. As the author of this article says, the whole point of copyright law is to encourage creativity, not stifle it.

"The fair use doctrine grows out of this purpose. If I use another's work in my own work in such a way that my work does not become a substitute for the original work--thereby infringing on the original author's monopoly over the market created by his or her work--then my use is fair. For example, if I quote a couple of lines from somebody's book in writing a review of the book, no one is going to view those quotations in my review as a substitute for the book itself and not buy the book. (They may not buy the book if I give it a bad review, but that's another matter entirely.)

"The second, closely related fair use concept is whether the use is 'transformative,' meaning that it takes the original work and turns it into something else entirely. Again, the more transformative my work is, the less likely someone is to see it as a substitute for the original.

"These concepts are what led the Supreme Court to say that 2 Live Crew's parody of 'Pretty Woman' was fair use, despite the fact that it lifts musical and lyrical aspects of the song wholesale. The Court reasoned that no one was going to buy 2 Live Crew's filthy rhyme in place of Roy Orbison's classic--it was not a substitute for the original. Also, the Court found that the dirty lyrics, even if crude, were clearly a way of playing off the wholesomeness of the original--that is, the use was transformative.

"If these concepts are applied to Fairey's work, the conclusion that his work is fair use is inescapable. No one would view the campaign poster as a substitute for the news photo. The two have entirely different purposes and different markets. And it is clearly transformative--it turns a run-of-the-mill stock photo into a work of art with powerful political overtones. Whatever stupidity he may have engaged in with respect to misidentifying the photo he used, it doesn't matter--this is obviously fair use."

I think hawkeye nails it! Hawkeye indeed! Read the full story, here:

"Is There Hope for Shepard Fairey? How does fair-use law work, anyway?"

Photos, Photos, Photos!

2009-10-16T11:37:00.001-07:00

A recent article about Getty and Corbis, two of the big photo licensing agencies, and their aggressive policing of rights violators on the web, from the LA Times, Sept. 13, 2009:

The letter arrived at Dave Formella's Long Beach travel agency the other day. It's fair to say it freaked him out.

"It has come to our attention that you are using an image represented by Getty Images for online promotional purposes," the letter from the photo service began. It demanded $1,000 in damages, or $900 if Formella agreed to pony up the cash within two weeks.

"We were really surprised, because we didn't think we were using any copyrighted pictures," Formella, 51, told me. He said he immediately pulled every photo from his company's site, which had been put together by a Web-design firm.

But Formella said he won't pay hundreds of dollars for inadvertently using the photo -- a generic shot of a woman sitting in front of a computer. Getty charges as little as $49 to license such images.

"A thousand dollars in damages?" Formella said incredulously. "Are they kidding?"

That's undoubtedly a common reaction among the tens of thousands of people who receive such letters each year from Getty and another leading image provider, Corbis, owned by Bill Gates.

I have licensed images from both collections. They are a bit on the pricey side, although sometimes they've got a photo you're not going to find anywhere else. Case in point, I needed a picture of Anthony Sabato, Jr. from his Calvin Klein underwear modeling days for an appearance he made on the Tyra Banks show.

I had to license the Sabato photo from the agency which had the photo rights.

For generic celebrity publicity photos, I generally like Everett Collections. For stock photography, I have used Shutterstock, a subscription service (if you're going to be downloading a lot of stock photos, as we did on the Tyra show) and Istockphoto.com, which has some beautiful photography at very reasonable prices per image, which is where I got the art photo for the home page of my Rights Camera Action! website.

Hulu’s Success Creates Intellectual Property Rights Headaches

2009-07-29T14:29:00.000-07:00

The following is a press release from this past May, from the Rights Camera Action! website, which followed on the heels of a Boston Globe story. It's reprinted here, FYI.

----

The new media revolution led by upstart Hulu is changing the way we watch television, and creating a new market for old TV shows and archival films. But the additional rights needed to rebroadcast on the Web and handheld devices is also creating a scramble for a piece of the profits.

Earlier this month, Disney struck a deal with Hulu to air a bunch of its ABC subsidiary content on the Web provider’s bandwidth. With the explosion of TV content heading for the Internet, the "re-clearing" of content for the Internet is a new and costly problem for producers and broadcasters. At the same time, this new market is creating a new growth opportunity for a niche of pros and companies that specialize in rights clearance.

A Boston Globe story on May 3, 2009 cites programming outlet WGBH, which is having to negotiate new licenses for documentaries in its archive for web consumers:

“It's only 30 seconds out of a 90-minute film, fleeting glimpses of then-President Jimmy Carter as seen in a 1976 Playboy magazine interview. But to secure the rights to use these five photos in the documentary series 'The Presidents,' which re-aired last fall, WGBH had to pay Playboy $12,400.

“That was all well and good for the show's broadcast and even for its release on video. But now, in the age of digital downloads - when TV networks are hungry to find new ways to attract larger audiences - the challenge has started all over again. WGBH has to go back and strike a deal for the digital rights to each photo of Carter.”

Actors have also upped the ante. The new union contract which has been tentatively approved by the Screen Actors Guild, as reported several weeks ago by CNN, and after months of protracted negotiations, includes so-called "New Media" provisions to protect actors whose performances are reused on the internet and other downloaded formats.

According to the the Alliance of Motion Picture and Television Producers, "Because both sides were willing to compromise, we now have an agreement that will provide SAG members with meaningful wage boosts, pension increases, first-class health benefits and a complete set of new media rights and residuals," the Alliance's Web site said. Producers have yet to see the actual contract provisions as it hasn’t yet been fully ratified by the membership.

Obtaining the new and expanded rights is a complex business, and can be a costly one for content owners. Professionals in the rights clearance business usually have extensive backgrounds on the production side of the business, often in the trenches of the Hollywood entertainment and music industries. They use the their accumulated contacts and knowledge to get negotiations done quickly, efficiently and on-budget. Clearance experts do the legwork of locating the rights holders and negotiating for photo rights, performance rights of actors and musicians. They will also handle directors and writers payments, deal with any guild requirements, in addition to any needed music clearance.

Rights Camera Action! is a rights clearance company based in Los Angeles, specializing in research and clearance for film, TV, merchandise and advertising. According to the Boston Globe story and industry sources, the demand for content for the Web is creating new opportunities for content producers to monetize their archives, and for those individuals and companies who specialize in rights clearance, the business of obtaining the necessary third party intellectual property rights for TV programming.

More REALITY: Right to Privacy vs. Right to Publicity

2009-06-23T12:51:00.000-07:00

This post follows from a question on the last post on Reality Clearance Guidelines.

The question was this:

"Thanks for these guidelines. Curious, though: I've read that people who are captured on film in a public place had no expectation of privacy and therefore would not have a case against you without a release. Can you comment on this? Any cases where this has been tested?" (from filmmaker Dave Gardner, on Linkedin).

And here's my answer:

Hi Dave... yes, that is a good question, and an argument I've heard as well. There are more issues than "privacy" when exploiting a film, although that is one of them.

Publicity rights are different from privacy rights. The following quote from the Library of Congress website makes this distinction:

"The privacy right or interest of the subject is personal in character, that the subject and his/her likeness not be cast before the public eye without his/her consent, the right to be left alone. The publicity right of the subject is that their image may not be commercially exploited without his/her consent and potentially compensation."

The above article goes on to point out that publicity rights are regulated by states. California, for example, has a very explicit set of laws due to the entertainment industry presence here. Other states, as I understand it, do not so regulate. But, we are interested in risk reduction and the freedom to distribute broadly in TV and film, and when we talk about Clearances. Here's what they say:

"Privacy and publicity rights are the subject of state laws. While many states have privacy and/or publicity laws, others do not recognize such rights or recognize such rights under other state laws or common law legal theories such as misappropriation and false representation. What may be permitted in one state may not be permitted in another. Note also that related causes of action may be pursued under the federal Lanham Act, 15 U.S.C. § 1125 (a), for example, for unauthorized uses of a person's identity in order to create a false endorsement."

On the other hand, supporting your question is the following quote from the Center for Social Media website, a publication called "Yes You Can!" (you can download it as a PDF) written by Peter Jaszi, Washington College of Law:

"In answer to a common (but not intellectual property-related) question, documentarians don’t need photo releases from individuals who are filmed in parks, streets or other public places where they have no expectation of privacy. If you single out an individual for special attention, you may a need a release."

However, note that he's talking about documentary and non-featured use, here.

If you decided to make a reality program about your neighbor in his daily routine, and followed him around out in the street all day long, for a month, would you be able to exploit that footage without getting a release for him or compensating him?

I wouldn't try it, based on the right to publicity, even if you aren't violating his privacy rights. You would want a release and the distributor of your program would no doubt insist on it, as well.

Any lawyers in the room? Feel free to chime in...

-Keith

Clearance Guidelines for Reality TV

2009-06-12T14:26:00.000-07:00

Producers, cameramen, post supervisors and editors should have knowledge of clearance concerns. Why? So that they can get the creative result that they desire, without having to risk losing great footage or key scenes that move the story forward.

When I was working on the Switched! TV show (ABC Family), I compiled a handy list of clearance rules called the Top 10 Clearance Guidelines for crews to watch out for when producing/shooting/editing. For the life of me, I cannot find that list and this is my best effort to re-create it. (I did actually think of 10 points! Whew...)

Here are some basics that apply to the Reality and Documentary world.

1) Lose the music. Make sure that you don't shoot key scenes over a blasting U2 song that is going to cost $$$ (more than you want to spend, believe me) to license. What to do, instead? Bring your own library music to the scene (the house party, or coffee house, or bar shoot). You can easily find tracks that will do the trick. You will pay a needle-drop fee (meaning that you will pay for that track to use in your show, without recurring fees to licensors or artists). And you will get the scene with the music you want, and no worries about a sound track married to music that you can't afford!

2) Watch the crowd scenes. There are various ways to handle these, when needed. Use area releasing, i.e., a large conspicuously placed sign that tells people that there is filming taking place, and that their entry thereupon constitutes their consent to film them and use their likeness in the program. Make sure you shoot the sign, pan to the crowd and/or venue, and pan back to the sign. Note it on the tape log... because that is a legal protection for you in the future. Also, since minors are beneath the age of consent, they aren't technically covered by an area release. So, don't shoot them, or get them released, with a parental consent!

Alternately, establish crowd scenes by shooting backs, feet, and avoid shooting their faces. This is good for sidewalk shooting, crowded hallways, mob scenes, drive-by's... where releasing isn't possible. Don't shoot them head-on. Go for their backs, torso's, etc. This may sound dumb, or unworkable, but I'll give an example. On a show about fat kids, starring Shaquille O'Neal, producers shot a lot of footage of fat people on the beach, at ice cream concessions, etc. Did we need to see their faces to make the point? No! Just their chubby bodies. :)

3) Minors. OK, these are of concern in any shoot. The reason is that legally, they cannot sign a contract that is binding. There are decisions that have come down both ways, where minors are concerned. But, Clearances is concerned with reducing risk as much as possible. You don't want to have to defend yourself against a lawsuit, or risk an E&O (Errors and Omissions insurance) claim, or denial of coverage. So, make sure that the minor AND the parent sign a release, and make sure that you release every minor that appears on camera. No exceptions.

4) Blur. If you cannot release someone in a key scene, and you haven't been able to get a consent, the safest thing to do is to blur the un-released people, if they are recognizable in the shot. Soft blurs and long shots can be used where you are just doing establishing shots, to minimize risk.

5) Logos. Every producer will tell you to avoid shooting logos, on t-shirts, ball caps, cars, equipment, in restaurants, on drive-by shots, you name it. No logos! Do you want to know why? Two words: Ad Sales. Even though you may not care about logos, and the manufacturers probably don't, either, the ad sales department at the network WILL care. Their alliances with major brands will be in conflict with the appearance of logos, prominently in your footage. So, avoid the major, national brands most of all (no Starbucks coffee get-togethers with signage everywhere, MacDonald’s excursions with the name and logo mentioned and visible at every turn, or Coke cans sprawled across the kitchen table). Instead, use mom and pop locations, local brands, and lots of greeking tape!

6) Release everyone. Hire a local PA to go out and put them in charge of releasing people. Give them a summary of the rules (as laid out herein, and any more that you add) so that they know what to do. Give them a Polaroid camera so that they can take pics of every person they release, and attach the photo to the release. (It will save you so much time in the edit bay that it is worth every penny you spend on the camera and film). Use carbonized forms if you have to shoot kids without parents to hand. Get the kid to sign, and get his address and phone number. Then you keep one copy of the release and give the other to the kid and tell him to take it home to the parent to sign. Tell him/her that you won't be able to use it unless the parent signs! And he won't appear on TV! And he would hate that, wouldn't he/she? Of course.... and then you follow up back in the office until you get the release. The rule we used on Switched! was "Focused and Featured." If the camera focused on someone, or they were at all featured in a shot, they had to be released. Otherwise they were blurred. (If you don't care that they are in the shot, and can be lost, then you don't need to release them).

7) Obtain location releases. Your release PA can handle these. Simple enough to get. If you are shooting outdoors, give a call to the local film office and see if you need a permit. Many cities require none, or they will help you to pull one if one is needed. Locations like airports may require them, as will large metro areas, depending on your crew size. Watch out for key landmarks like the Walk of Fame in Hollywood and Grauman’s Chinese, as anything more than establishing shots. If you feature them, you should get them released and may incur a fee for doing so.

8) Be careful of inadvertently shooting artwork in the background of shots. So, if you set up an interview, don't do it with a Picasso in the background, or even a lesser-known work of art, that appears in the entire interview. You will end up having to re-shoot. Get your own artwork that is original, if needed, from a prop house, etc.

9) Watch out for posters in kids' rooms, or other depictions of famous people. Technically, they are not free of copyright for the photography, and the artist also has rights that can be violated by including them in your program.

10) Watch out for photographs in general. Get releases for photos that appear in your shots (a photo release from the photographer, and also get anyone appearing in the photos to sign an appearance release).

So there's your all-new, Top 10 Rules for Reality clearances, equally applicable to documentaries that might be headed for TV broadcast.

Happy shooting!

Google Book Search: A Great Resource for Out of Copyright Books

2009-06-01T11:53:00.000-07:00

Producers who would like to draw on the well of out-of-copyright books to adapt for screenplays (think the entire Jane Austen series: Pride and Prejudice, Sense and Sensibility, et al) can find these free on Google Book Search .

Not only filmmakers will benefit, as Web users will also be able to download and use a large archive of digitized media available on Google, including free books from its out-of-copyright selection.

Google Book Search deals with three categories of books, which can be a great resource for screenwriters and developers:

1) In-copyright and in-print books, i.e. books that publishers are still actively selling, the ones you see at most bookstores. Google has in the past referred these searches to other sellers like Amazon, but will be soon be set up to sell these directly, cutting out the middle man.

2) In-copyright but out-of-print books, which aren’t actively being published or sold, so the only way to procure one is to track it down in a library or used bookstore. This is a way to find books that simply couldn’t be found otherwise. Many of these books will be preview-able on Google, and available for purchase.

3) Out-of-copyright books. Google currently has 500,000 books available on Sony Reader (Sony’s version of the Kindle being marketed by Amazon) through a deal it made with Sony to make available its library of digitized books printed before 1923. That’s twice the number of books which are available on Kindle, currently.

The controversial Google archive had to overcome lawsuits by publishers and author guilds and finally agreements were reached in Fall, 2008, so that the project could proceed.

Google Book Search tool also allows users to embed material from books into websites and blogs. The Google Preview Wizard helps you “quickly, easily, and reliably integrate previews with your site.”

Fair Use: When it Comes to Your Rights, Use Them or Lose Them!

2009-05-18T11:39:00.000-07:00

What I think is interesting about "fair use" is the amount of mystery surrounding the term. People often know it, but don't really know what it means. That includes industry people (Film, TV, journalism, literature) who actually need to know the ins and outs, but don't.

In particular, what I find interesting about the fair use doctrine, is that these are rights that are basically yours, mine, ours... that we either take because we know they are ours to take (like a tax deduction) or we lose the rights by our own doing! To continue the analogy, the IRS is not likely to call you up and tell you that you missed a deduction. OK, it's never going to happen, let's face it.

Similarly, no author/filmmaker/musician is ever going to say, "Sure, take my work and use it! For free! No charge! It's Fair Use!" This is really one of those times when it is a Don't Ask, Don't Tell proposition. So, we'd better know, ourselves, when we rightly can take the position: this is ours to use, it is fair to do so.

According to the Center For Social Media (American University), "Fair use is the right, in some circumstances, to quote copyrighted material without asking permission or paying for it."

See? I just did exactly that. There are rules for doing so.

The Center for Social Media is a great resource on Fair Use, and publishes a code of best practices in fair use, to help to educate and encourage filmmakers to understand what constitutes fair use and to know their rights.

The Center's "Yes, You Can!" checklist (also available on its website) is a valuable tool as it provides answers to some of filmmakers most common clearance questions. As it points out, many of these questions don't fall into "fair use" at all, but rather "free use."

Example: "Buildings that can be seen from public areas can be filmed for any purpose. Although there has been copyright protection in architectural works in the United States since 1990, the Copyright Act includes an exemption for filming. It doesn't matter whether the building is the subject of the film or an incidental background."

As you can see, there are other issues, related to fair use, but which might be more properly called free or unrestricted use. For example, when something is actually not copyrighted or in the "public domain," then its use is not restricted. It can be confusing to figure these things out, which is why there are people like me who help to research rights.

Also, when it comes to fine points of law, as these matters are often contested, there are some good lawyers out there. One whom I really admire is Michael C. Donaldson, author of Clearance and Copyright. I know that you are thinking that this doesn't sound like a fascinating read, it isn't a Grisham novel, but Donaldson has some truly amazing stories to tell. I've heard some. Tales of those who got away with things, and those who didn't and paid a big price (and there are some very famous filmmakers and films included in both categories!)

One notable story concerns a church sculpture used as a backdrop in the movie Devil's Advocate, starring Al Pacino. Although the cathedral sculpture was assumed to have been in the public domain due to the age of the building, it turned out that the sculpture was a relatively new addition to the building.

The relief sculpture was created by renowned sculptor Frederick Hart, who won an international competition to design the facade of the west entrance to the Washington National Cathedral. The sculpture was was filmed and used as a wall on the penthouse suite of John Milton, the character depicted by Pacino, as he delivers a diabolic speech in which the figures on the sculpture come to life and writhe erotically.

Neither the Cathedral nor the artist had endorsed the use in the motion picture, and so they sued. The movie had already been released into general distribution, but was slated for home video release. As part of a settlement that also included Warner Brothers attaching stickers to all of the videocassettes disclaiming any relationship or endorsement by the Cathedral, Warner had to re-shoot over 20 minutes of scenes where the sculpture could be seen.

How's that for a copyright infringement nightmare? It is a classic example of assuming that something was in the public domain, and therefore not subject to any kind of copyright, which was actually a more recently copyrighted item.

On the other side of the spectrum, there seems to be a fear in many circles of using trademarks visibly in any kind of TV production, which I've seen on a number of reality shows I've worked on. This seems to confuse trademark with copyright. It extends to logos on t-shirts, ball caps, etc. And, although many TV shows will limit the use of trademarked items on its shows, the reasoning for doing so has nothing to do with any legal or copyright issues.

Trademark, as Donaldson points out, merely tells you the source of a product, and the appearance of the trademark is protection for the owner. As long as the trademark appears and is used, the protection is there.

As mentioned, many networks want to limit the appearance of trademarked items for an entirely different reason. They may have relationships with a brand by virtue of their sponsorship deals. If they have big sponsorship deals with Pepsi, they are going to limit their promotion of any trademark relating to Coca Cola, etc. These are business decisions, not based on any kind of legal issue.

Yet, many producers have become confused by this (apparently) and concluded that there is some danger in using a trademark in TV or film. Of course, if there is some implicit sponsorship, or negative use of a brand, it could generate some kind of complaint. But, the trademark is not a copyright. As long as it's not used in an unfavorable light, it's going to be hard for a trademark owner to complain that it's getting exposure for its brand, as exposure and attribution to the owner is the entire reason for a trademark.

Fair use, which means the use of copyrighted material in a new production, has a definite place in creative work. For example, satire couldn't be done without it. Saturday Night Live makes this kind of use its bread and butter, in skits that satirize movies, TV and politics. They aren't paying huge licensing fees to make fun of these properties, nor are they asking permission.

The video, "Recut, Reframe, Recycle" that appears on the Center website is a great primer on fair use in online video. As the commentary points out, some distribution centers are starting to filter out third-party content from videos appearing on their sites. This doesn't necessarily mean that filmmakers, or those budding geniuses creating online mashups for YouTube or other online venues, don't have the right under "fair use" to use the copyrighted content in their new works.

You can also watch the Center's video on its Code of Best Practices in Online Video at the bottom of this blog... so check that out, as well.

Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video

What is a Most Favored Nation Agreement... and How Is It Used in Negotiation?

2009-04-22T21:15:00.000-07:00

One of the tools of negotiation when it comes to rights and clearances is the Most Favored Nation agreement. The most favored nation idea is originally a political concept, which was a protection in trade. China, for instance, in hammering out a trade agreement with the United States, might demand a Most Favored Nation status, meaning that no other nation would be more favorably treated in its trade status with the US.

This status, in negotiation, is of course accorded to entities who merit it. It is a protection for them that, as negotiations proceed, they will not be left behind if some other party comes along and ups the ante in the negotiation.

In just this way, in the entertainment industry, Most Favored Nation, often shorthanded to "MFN" or "Favored Nations" - is a guarantee to the contracting party that his or her deal will be no less favorable than the deal of anyone else being similarly featured in the project or program. It can apply to footage, music, or talent.

The first question out of many talent agents' mouths, when offered a deal for their client, will be, "Is this Favored Nations?"

The wording of the deal can be tweaked in various ways - for instance, it can exclude certain parties by name, or name others. For example, an agreement could stipulate that the compensation will be MFN with the star actor... or no less favorable than any actor appearing in the picture with the exception of the star or stars. In this way, the producer can pay the top tier actors one level of compensation, and the second tier actors lower levels of compensation for reuse of their performances.

These very specific wordings are not common in agreements, as most producers don't want to make such guarantees in writing, but might be stated orally or in emails or side-letters.

More common are simple statements that no other actor appearing similarly featured in the movie/TV show/game shall be more favorably compensated than the client, the actor signing the contract.

Sometimes, the MFN guarantee extends to the credit accorded the actor. This is normally a negotiated point inserted at the request of the agent or lawyer negotiating the deal on the actor's behalf. Any element of the deal can be so stipulated: compensation, credit, royalty, etc.

MFN negotiations can be a two-edged sword. They can help keep costs down by assuring talent that, even though the money offered may not seem great... they won't be getting any less than anyone else is getting.

On the other hand, once offered, if costs start to spiral upward because someone holds out or drives the negotiated price up, everyone else that has been guaranteed MFN status will be entitled to a similarly high fee. Therefore, MFN is usually offered judiciously, and late in the negotiation process rather than at the outset, if it is used at all.

Some producers will not use MFN deals at all, as they feel that it endangers their ability to negotiate. When used, some producers will offer them only in guarantees not in the contract itself, but in verbal discussions or other communications.

However offered, these agreements are considered binding, and should not be put on the table unless they can and will be fulfilled. Agents, managers and talent will often communicate among themselves. Sometimes a law firm will have two or more clients that are connected to the project you are working on, and will be privy to negotiations. The adage, "It's a small town," certainly applies to Hollywood and the negotiation process.

Most Favored Nation deals are an important tool in negotiation, and it’s to a producer’s advantage to understand them. They shouldn’t be agreed or resorted to without thought and deliberation. Although they can greatly speed a negotiation, they can also sabotage it if all the consequences are not weighed.