Question for FilmTVLaw.com:

Saw your Q&A blog at www.filmtvlaw.com. I’ve got a concept for a reality television series and went out and bought the life story rights already. Now I am trying to wrap my head around how to get it made. Should I pitch it to production companies or go straight to the Networks? Another friend who is established in the industry said I need a pilot. Any help would be super.

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for contacting me about independent television production. It is a hot topic right now because so much great content is now finding a market on television and video-on-demand platforms like Netflix, Amazon and Hulu. Whether to try to independently produce a television series depends a lot on the format of the series, financial resources, and ambitions for the series. Our firm has been helping a lot of clients get television distribution. I will explain how to make the decision whether to pitch to an established production company or produce a television series independently. In addition to this article, you can also look up our Q&A blog at http://filmtvlaw.com/entertainment-lawyer-qa/.

Format Choices

First, the format of the series is critical. If you want to develop a scripted one-hour drama or a half-hour sitcom, the odds of success will increase if you pursue the traditional route of television development. That means focusing on cast and the material. A solid, professionally written pilot teleplay, one or two A-list cast members, and network quality development materials are essential. A sizzle-reel can help, but only if it is broadcast quality. From there our firm can help to pitch to production companies who will work with you to produce a pilot and set up the series at a network.

Reality television, however, is wide open for independent production. But independent production does not mean Youtube.com or a web series. The problem with web series are two-fold. First, if a producer wants to approach a network about a web series, that web series must have over 100K, and preferably over 1M views before the networks will even start to take notice. If a producer puts the series or pilot onto a public video service like Youtube and it only acquires a few thousand views, then the producer is actually making a case for the project having no market.

Second, the Networks are fighting like crazy right now to stay relevant, and not to end up being considered just another Youtube channel themselves. That relevance means seeing fresh, unique content that is not available anywhere else. So network executives will run the other direction when you bring web content to them, unless of course the series has several million views.

However, independently producing a pilot for reality TV (broadcast quality, of course), can be a ticket to a network deal. Content is critical, and budget is also key. Make sure that the series does not cost millions of dollars per episode to produce, and also do not produce something that requires major tie-ins from other organizations or events. Keep it simple and really compelling. And make sure you know what Networks want before you start shooting. No reason to spend a few hundred-thousand on a pilot, only to realize the concept was last year’s trend for reality TV. We can help clients zero in on what is hot now at networks.

Children’s programming can also be produced independently. Both animated and live-action can work, but be sure that you are producing for the appropriate demographic, since children’s programming needs to fit certain criteria to find a place on the networks. Is there an educational component? What is the age range for the programming? Make sure you have a clear idea for the market before moving into production.

Choose Your Network

Second, consider what type of network distribution you want. The big four television networks are going to be the most challenging, and produce most content in-house, or with a few major studio production companies. Independent television production is not realistic for this category of networks.

Premium cable is another class where independent series are a long shot. Although you could certainly independently produce a film, or even a short mini-series for a premium cable network, full season scripted series are going to need to be developed in the more traditional way.

Cable television is certainly home to much independently produced content, from reality television to mini-series, movie-of-the-week, children’s programming and fully-sponsored content. This is the place where independent television production is taking off. However, every network has a very particular style. Our firm can help pin-point the market before a lot of money goes into production.

Video On Demand

Third, video-on-demand is huge right now and many viewers are abandoning the linear broadcast channel format altogether for exclusively paid and subscription VOD. However, even here there are two tracks. There is the content that is featured and/or produced in-house by Netflix, Amazon, Hulu and others, and then there is the vast thumbnail wasteland of acquired content. Our clients produce content that is promoted and watched, not just placed at the end of a scroll list.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. At BLAKE & WANG P.A. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

A novel was published in the mid '90s and became a best seller. A studio paid a small fortune and purchased the book. Over several years they hired writers who adapted the book but the studio never went forward to make the picture. They put it into turnaround. No other studio picked it up.

 The original writer of the novel, frustrated, adapted his own novel and submitted it to the studio. They loved it but much time passed, nothing happened and it was once again put into turnaround.

 I would like to make a deal with the novel/screenwriter and acquire the novel rights and his screenplay adaptation. I understand that turnaround costs generally have to be reimbursed. If I commit to pay the author for the book rights and for the screenplay, who is responsible to reimburse the studio?

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for a great question about a very complicated part of the option-acquisition process. While the terms of a Turnaround Agreement can vary substantially from one project to another, since it is the writer’s job to initially negotiate a turnaround agreement as part of the purchase of the property, there are many elements that most turnaround agreements share.

First, it is important to realize that turnaround is not the same thing as an expired option agreement. When an option agreement expires, and of course depending on the terms of that document, usually the writer at that point is free and clear to thereafter do anything the writer wants with the project, including selling it to a new production company. There can be some strings attached to development materials produced by the option holder, but that is a separate article.

However, a turnaround agreement only becomes applicable after the work has been purchased by the studio or production company. In other words, the acquisition price has already been paid and now the studio is the owner of the work.

So why would a studio ever want to enter into a turnaround agreement, given that the whole acquisition price had already been paid?

The reason is generally because a decision is made at some point to abandon development of the project. While that can be a costly decision, since the whole acquisition price would be lost, it is sometimes better to let that fee go, rather than produce a film that the studio decides will not be profitable.

So turnaround then ends up being to the studio’s advantage. It is too late to get the money back from the writer of the script, but the studio can offer the writer a period of time in which the writer can go out and find a new buyer for the property. Basically the studio is using the writer to try to recoup the costs that the studio spent on the script. Writers have an incentive to do this work because the writer wants to see a script get produced, and besides the career benefits to that, there are also usually bonuses and backend participation that will only be paid if the film actually gets produced.

Now back to the question, which is, who gets paid under a turnaround agreement? It is the original studio that has to be paid, because the studio is the one that actually owns the rights to the project. However, the right to re-purchase the rights owned by the studio are actually held by the writer, so both parties must be negotiated with to complete the deal. The new producer or studio must ensure that the turnaround is conducted correctly, or else there will be a problem with the chain-of-title with the project.

The price to be paid for the turnaround is specified by the turnaround agreement, but is generally more than the initial payments made to the writer for the option and acquisition. How much more will be decided by the initial negotiations the writer or his agent or attorney did when the studio purchased the script in the first place.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

I know the Section 181 Film Tax Deduction expires this year, but I am still confused about what exactly is required by the law and what deadlines there are, if any. A producer friend of mine suggested I set up an offering, but I also heard that in some cases a tax filing is required. Any help would be great.

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for following up on Section 181. The regulations that the Internal Revenue Service enacted were never extremely detailed, which is the source of much of the confusion about the Section 181 Film and Television Tax Deduction. However, over the years precedents have been established for how to best take advantage of the tax deduction.

In order to avoid IRS tax penalties and securities fraud liability to the investors for a failure to secure the tax deduction, a number of things must be done. The following is not an exhaustive list, but gets to the core of what is required to both comply with the regulations and provide the investors and their accountants with what is needed to take advantage of the tax deduction:

1)    Set up an offering of securities for the film or television series before January 1, 2017;

2)    File the offering with the SEC and with the States where investors reside, not more than 15 days after the first sale of securities (in some states earlier), and not later than January 1, 2017

3)    Shoot at least one day of principal photography before January 1, 2017;

4)    Elect to take the IRS Section 181 Tax Deduction before March 15, 2017;

5)    Provide the investors with a K-1, tax opinion letter, and copy of the tax election before March 15, 2017.

Now I will give a little more detail about each of the above.

First, a Section 181 compliant securities offering is required since it allows private equity investors to both invest in the film or television series in question, and then, to take a loss when the production company files for the Section 181 Deduction. Any time a production has passive investors in a film or television project, meaning the investors are not actively working on the project, a securities offering is required.

Second, once a sale of securities has been completed, the SEC requires that the exemption form be filed with the SEC. The time for this filing is not later than 15 days after the first sale. However, some States require a filing before the first sale, so consult with a securities firm like ours to determine when investments in a particular state must be filed. It is my opinion that an offering that has not been filed with the SEC cannot be grandfathered in for subsequent years, since there would be no evidence that the investment had even been offered before the expiration of the Section 181 Tax Deduction.

Third, the IRS regulations specifically require that at least one day of principal photography be shot before the expiration of Section 181, which is January 1, 2017. Moreover, that day of photography must be in the ordinary course of production. So in order to lock in the deduction for your production, both for 2016 and also for 2017 and subsequent years if needed, at least a day’s production must be completed this year, and it needs to be part of a larger plan of production.

Fourth, the election must be made by the production company to actually take the tax deduction as part of the corporate tax statements the company must file in 2017. There is no specific form or “check the box” available, so it will not show up as a line item in the company’s annual returns. If the company does not properly elect to take the deduction, then all expenses of the company will be treated in the ordinary way for the life of the production company.

Fifth, the investors will need to get a copy of the K-1 from the company, showing the investors share of the loss, as well as a copy of the tax election to take Section 181, and finally, a copy of an opinion letter from an attorney that specifies that the company qualifies for Section 181. Not every film qualifies under the rules that Congress set up, as it is supposed to promote domestic film and television production. So an opinion letter stating that the production qualifies for the deduction and that the offering has been conducted pursuant to the regulations is required.

Since it takes about eight weeks to file an exemption with the SEC, do not wait until December 1 to lock in the Section 181 Deduction for a film or television production. Now would be the best time to get started, to ensure everything is completed and filed in time.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

Is it true that you automatically have the trademark rights to a name as soon as you have used it in trade? For example, If I make a movie or a comic book with a character named “Dr. Doomsday,” do I then have legal trademark rights to the name “Dr. doomsday” in the United States? Do I have the same trademark rights as a registered name, or what is the difference?

Answer by Brandon Blake, Entertainment Lawyer:

Thank you for a great question about common law trademark. Yes, it is true that there is something called common law trademark. In some states there are also statutes that codify these trademark rights. Additionally, a number of states even allow for a State trademark filing, where the mark is filed with the state rather than with the US Patent and Trademark Office.

Common law trademark works in much the same way as Federal trademark. Titles of single works and names of characters are not protectable in and of themselves. For example, if your comic book was titled “Dr. Doomsday” and it was an ongoing series, then that would qualify for trademark protection, provided the series was being sold commercially. However, if a movie or a single graphic novel was titled “Dr. Doomsday”, that would not allow for trademark protection. Likewise, the mere fact of having a character named “Dr. Doomsday” would not qualify for trademark protection, unless consumers related that character to some product or service. These basic principles of trademark law will apply regardless of whether we are discussing Federal or common law trademark.

Common law trademark, whether it is filed with a State or not, is acquired by using the mark in commerce. That means that the mark must be used to designate a product or service that is currently being sold in the market. There is no way to preserve the future right to use the mark.

There are some limitations to common law trademark. The first limitation is that the mark will be strictly limited to a particular geographic area. The geographic area is limited to where the product or service is actually sold. So if you only actually market the comic book in California, then you will only own the mark in California, and others throughout the country could use the same mark, provided they did not offer their comic book for sale in California.

Another limitation is that a Federal trademark filing will typically be given precedence over a common law trademark. That is not to say that the Federal filing will preempt the common law filing, but proving use in commerce can be difficult without a filing to provide a presumption of use.

The benefits of a Federal trademark filing include national coverage regardless of the actual scope of use in commerce, the ability to recover profits, increased damages and costs due to infringement, incontestability of the Federal mark after five years, the right to sue in federal court, the right to have the Customs Service block import of infringing goods, among many other benefits.

The most likely area where common law trademark law becomes important is when a cease and desist letter is received from a Federal trademark owner. At that point, the common law mark owner can assert his or her common law rights to protect the use. However, it makes a lot more sense to pre-empt this kind of situation by having a Federal trademark filed, and securing your rights throughout the United States.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

I’m working on a television pilot and want to use a 10 second clip from an old black and white movie from the 1950s. A producer friend of mine says the movie is in the public domain, but I heard pd starts in the 1920s. Help!

Answer by Brandon Blake, Entertainment Lawyer:

With all of the extensions of copyright law in the United States, it is easy to get confused about when exactly a work is officially in the public domain. It is true that there are in fact movies from the 1950s and even the 1970s that are in the public domain, while other works from the early 1920’s are still solidly protected by copyright law. Let’s start with the basics first and then analyze how things got so mixed up.

The term of U.S copyright is presently the author’s life plus 70 years, or for works made for hire 95 years from publication or 120 years from creation, whichever is shorter. That being said, this is only the most recent term of copyright, and the term in the past has been substantially shorter. If a work is privileged enough to get in under one of the many extensions of copyright, the term can be extended, provided that the work is not yet in the public domain. However, this process creates a huge diversity of copyright terms between various works.

So, now that we have gotten the basics out of the way, lets dig into the details of how to determine if a work is in the public domain. To do that, we need to distinguish between works first filing copyright registrations after January 1, 1978, versus works that already had a copyright before 1978.

Works Copyrighted Since 1978

For works created after January 1, 1978, copyright automatically affixes to the work, no filing is necessary (although many benefits come from copyright filing).  For these works, the start of the copyright clock is the moment of creation, and the term is the life of the author plus 70 years. For a joint work, the term is the life of the last surviving author plus 70 years. For works-made-for-hire, the term is 95 years from first publication or 120 years from creation, whichever is shorter (unless the author’s identity is later revealed in Copyright Office records, which then reverts the term to the life of the author plus 70 years.)

A second category of works are those that were created before 1978, but not copyrighted or published. Long lost Mark Twain manuscripts and re-discovered Beetles compositions can fall within this category. In general, the term is the same as above, but all works in this category are guaranteed at least 25 years of statutory protection. In addition, if a work in this category was published before December 31, 2002, the term extends another 45 years, through the end of 2047. 

Works Copyrighted Before 1978

Provided you have followed along to this point without problem, here is where it starts to get tricky. That is because the copyright term of older works is determined by the particular copyright act in existence at the time the work was created, unless the term was specially extended by a subsequent act. These works breakdown between the 1909 Copyright Act, the 1976 Copyright Act, and the 1998 Copyright Term Extension Act.

Duration Under 1909 Copyright Act

Under the 1909 Act, the work was not automatically protected by copyright, but instead copyright protection dated from either the first publishing of the work, or otherwise from the first registration of the work. The term of copyright was only a single 28 year period, but that could be extended for a second 28 year term in the 28th year of the preceding term. So that is why early works vary so much in the term of copyright protection. Many works in fact were not correctly extended for a second term, and at that point the works entered the public domain.

Duration Under 1976 Copyright Act

The 1976 Copyright Act continued the system of the 1909 copyright act, requiring a second renewal of copyright in the 28th year. However, the length of the renewal term was increased from 28 years to 47 years. 

Duration Under 1998 Copyright Term Extension Act

The 1998 Copyright Term Extension Act increased the renewal term another 20 years, to 67 years. The effect of this second Copyright Extension Act was to increase the copyright protection for works already copyrighted by January 1, 1978, from the original 56 years, to 95 years (a first term plus 67 years). 

So The copyright term for any one work will depend on the date that it was either created, published, or filed for copyright, and for works before 1978, whether or not the copyright was properly extended for a second term. However, one thing is certain, which is that all works published in the United States before January 1, 1923 are in the public domain. That is not based on the present term of extended copyright, which would actually protect a work through 2018, but instead on the fact that a work with a copyright that expired by 1997 must now be in the public domain, because it missed the 1998 extension.

 In addition to these rules regarding the maximum term of copyright, there are many works, including feature films, music, books and even television shows that have fallen into the public domain since 1923, including works created as recently as the early 1970s. 

To determine with certainty the length of copyright in any one particular work, some substantial copyright research is required. As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

Thanks for all the great insights every month. My question - What rights do extended family have in terms of a bio pic on a deceased public figure? How long does someone have to be deceased for their story to be considered public domain?

Answer by Brandon Blake, Entertainment Lawyer:

A great question about life story rights, how long after death those rights can extend, and who holds the rights to a deceased celebrity. First, the phrase “public domain” only legally applies to the copyrights in a creative work. Terry Gene Bollea (aka Hulk Hogan), had his entire copyright case against Gawker dismissed and yet went on to win $140.1 million under the same claims that can be brought against a producer for failing to obtain life rights to a project.

Copyrights are important, and copyrights often form part of a life story grant of rights, but such rights are only a portion of what is being acquired in a life rights deal. Why is that matter? Because while U.S. copyrights have a specific duration that can be calculated based upon when the work was first created and whether the term of copyright was renewed or extended, other rights have no such fixed duration, and cannot be so easily be measured in a number of years.

The term of U.S copyright is presently the author’s life plus 70 years, or for works made for hire 95 years from publication or 120 years from creation, whichever is shorter. Due to the number of questions I get about copyright duration, and the complexity of the subject, I am planning a separate article in two weeks that delves into the specifics of U.S. copyright duration, so please be sure to follow us on Linkedin, Facebook or Twitter so you do not miss our next issue.

The second term that is probably incorrectly used in the question is “public figure.” Unless the person in question was a former President or Congressmen, then the term public figure probably does not apply. The reason is that the term “public figure” applies to a particular constitutional test for defamation, limiting the claims that public figures can bring. So public figures are typically political figures, or those that have become involved in a public issue or debate. While cases have found some celebrities at some times to be public figures, the vast majority of defamation cases involving celebrities do not involve constitutional questions.

So what rights do extended families hold to a deceased celebrity’s life story? The answer is basically in two parts. First, we should address the rights that the family members may have inherited from the celebrity. Many rights to intellectual properties, including life stories, can be transferred by will or inheritance in the same way as any other property. So copyrights, trademarks, and rights of publicity can all be held by extended family, provided that such rights were transferred to them from the deceased.

The second part addresses what rights that extended family member might hold personally, by being part of the story. So, for example, if the extended family member appears in the story being told as a character, then that person will have privacy rights, defamation rights, and their own potentially copyrightable stories, which they acquire by basically being in the right place at the right time. These rights are not going to be administered by the Estate of the deceased celebrity, because the rights are personally owned by the relatives. This can be a benefit to a project, because it is sometimes possible to acquire the same story rights from another family member, rather than through the Estate.

Regarding the duration of protection for life story rights, I already mentioned the general standard for copyright duration above. However, trademarks do not ever terminate, provided the marks are continually renewed. This can apply both to celebrities’ names and likenesses, as well as characters in famous works. So, for example, the character of Peter Rabbit was first published in 1902, and is officially in the “public domain”, yet in August of 2003 a publisher (in China no less) was fined $42,200 for publishing an un-licensed Peter Rabbit book based on trademark law, not copyright infringement. UK based Frederick Warne & Co Ltd holds international trademarks on the Peter Rabbit character.

Likewise, the Estate of Mark Twain still protects the likeness, name and signature of Mark Twain, and exercises considerable control over publishing works by the author that died in 1910.

While there are some rights that will terminate on the death of the celebrity, such as the rights of privacy held by the celebrity him or herself, other rights can theoretically last perpetually, such as the right of publicity. Certainly there are many Estates, including those of Marilyn Monroe, Elvis Presley, and even Salvador Dali, who will protect the images, likenesses and stories for as long as there are fans that remember them.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

Been working for several years to raise the budget for an indie feature I plan to direct. At one point had full budget raised through private investors but it fell through. Now we’ve got about 20% committed but no other investors lined up. Two questions: 1) How can we find financing for the remainder and 2) Can we lock in the Section 181 deduction even if the investors only come up with partial financing?

Answer by Brandon Blake, Entertainment Lawyer:

One of the big changes to effect film and television finance since 2008 is that now days it is rare for any one form of financing to make up 100% of the budget of the project. From studio features and network television to SAG Ultra Low Budget projects, producers need to turn to hybrid financing to get the project made.  Most investors and financiers are looking to spread risk and minimize losses, while still being exposed to the potential high returns of a blockbuster feature film or television series.

Private equity financing for feature films is picking up, and there is quite a bit of investor interest being stirred up by the renewal of the American Jobs Creation Act, (AJCA) Section 181 tax deduction. The magic figure for investor or private equity financing is about 20% of the total budget. If a producer can raise 20% of the budget of the film, our firm can generally help find industry financing to fill in the “gap” left over. While 80% seems like a large gap to fill, between State and International tax incentives, debt financing and collateralization, co-production partners, and foreign pre-sales that 80% can often be covered.

Looking in more detail at the hybrid funding options, the first step of course will be State and International tax incentives. Certain countries around the world are still offering tax incentives and credits as high as 50% of the budget of the film, if produced entirely with local talent, while states like Louisiana have added new tax incentives that can add up to 40% of the budget of a film shot with all-Louisiana crews. Even California introduced a 25% tax credit for relocating a television series to California. Moreover, there are more opportunities than ever today to monetize state tax credits and incentives, so that those funds can be spent as part of the budget, or even for pre-production costs.

Debt financing has become increasingly important to financing feature films and television series, and collateralization has replaced the old negative pick up deal. What does that mean? By shopping a feature film or television series to studios and networks, producers can convert the interest of distributors and networks in the project into cash for the production budget. With more banks then ever willing to lend against films and television series collateralized with Network deals and distribution guarantees, it is possible to raise a substantial portion of the budget through debt financing. Additionally, collateralization need not be exclusively provided by the distributor of the projects, and many creative deals are possible through other forms of collateralization.

Additionally, foreign co-production partners can provide either financing or in-kind service to projects, eliminating much of the below-the-line cost of producing a film. Large studio productions have used foreign co-production partners for years, and the trend is only increasing as many Asian markets become primary markets for film and television projects.

Finally, foreign pre-sales can still be a valuable source of finishing funds, with perhaps 10% to 20% of the budget available through foreign pre-sales. While lenders now typically discount the pre-sales agreements, there are still many funding opportunities available through pre-sales arranged at major film and television markets.

Regarding the second question about the American Jobs Creation Act Section 181 tax deduction, there is no requirement that equity financing make up 100% of the budget of the film. Provided that at least one day of principal photography starts in 2016, Section 181 tax deductions can be locked in for subsequent years of production. However, the project must qualify for Section 181 and the offering must be organized in such a way that the investors can take the deduction against their taxes.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

We have been following your Q&A for some time. You were recommended to us a few years back and basically have not even considered anyone else for legal service.

We have a writer who wrote a screenplay in 2007, based on his life, it is WGA registered only. In 2014 this writer became legally blind. He asks a friend to help him polish and embellish the script. This friend is not a WGA writer nor a professional writer. This friend was unprofessional, difficult to work with and rewrote the script with content that the original writer disapproved of. This friend also drew up a writer’s agreement, based on the basic WGA contract, it was full of errors, but the blind writer signed and agreed. After 9 months, they parted ways. The friend then took it upon himself to re-title and copyright the unfinished script in his own name, even though it was not complete nor approved by the original writer.

Are there any repercussions to the writer going back to the original script and title to file a copyright? Also, since the script was based on actual events and people, can the friend in anyway sell the unapproved script without having the 'rights' to the original writer’s story? Thank you.

Answer by Brandon Blake, Entertainment Lawyer:

Thank you for the kind words. Always hate to hear about writing disputes of this kind, and especially when it sounds as though the writer in this case was taken advantage of at a particularly difficult time in his life. I will go through several ideas based on the issues above.

Regarding the lack of a copyright filing, there is no legal requirement to file a copyright with the United States Copyright Office for a screenplay in order to have copyright protection for the work. Although filing a copyright is relatively easy now that the filing is online (www.copyright.gov/eco/), many writers still prefer not to file because of concerns about choosing the correct form, uncertainty about how to deal with source material, and sometimes privacy concerns since U.S. copyright filings are public record. All that being said, the writer is still protected by copyright law despite not having filed. However, there is an evidentiary question now regarding the differences between the 2007 version and the 2014 version.

I continue to be critical of the WGA for only maintaining scripts on file for five years, since so many writers do opt for WGA registration rather than a copyright filing. As the WGA states here (www.wgawregistry.org/regfaqs.html#quest3):

“What does the registration fee cover? The registration fee provides five years of legal evidence for your material. It also helps maintain the overhead for the department, including the maintenance of the confidential facility where the material is stored for its five-year term.”

Five years is a blink of an eye in the life of many screenplays, so unless the writer is re-registering the material regularly, that evidence is going to be lost. However, that does not mean the content of the original script cannot be proved by other evidence, but it is more difficult.

Regarding the WGA contract signed, if the writer was tricked into signing the contract or literally did not know what he was signing because of his disability, then there may be contract and tort remedies available. Short of that, the WGA contract will be controlling regarding the rights that the friend now has in the screenplay. In January of this year I answered questions about a WGA Collaboration Agreement (www.filmtvlaw.com/blog/2016/1/19/wga-writers-collaboration-agreement). Rather than discussing those points again, please feel free to read this previous article where I go into more detail about WGA Collaboration Agreements and which rights are typically transferred.

Regarding filing a copyright for the original version of the script, that idea probably makes sense, but make sure that this is done truthfully and accurately. There are substantial penalties for knowingly making fraudulent representations on copyright filings. Additionally, if the contract signed transferred the underlying rights to the two screenwriters jointly, then filing a copyright now under just the name of the original writer could be a misstatement. During the online registration process with the US Copyright Office the application will ask if there are any other claimants to the copyright.

Regarding the life story rights, it sounds like this point will be solidly in favor of the original writer. Again, provided that the agreement signed did not transfer any rights to the underlying property or the life rights, the friend is not going to be able to sell or develop this new script. Moreover, there is not a production company or distributor of any size that I know of that would even consider getting involved in a true life story without seeing the paperwork for the underlying rights.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

Hello. I would like to know the ways of working with an agency legally. How can I work with them and make sure I am not ripped off? How do I know if they are actual and legitimate and not con artists?

Answer by Brandon Blake, Entertainment Lawyer:

Many of my clients have talent agents and talent managers, and each can be indispensable for helping to advance a career in film, television and music. So knowing how to check out a prospective agent or manager is valuable knowledge that can save a lot of time in the long run.

First off, it is important to know that there is a difference between agents and managers. Many states, including California and New York, have statutes to regulate talent agencies, including the maximum commission rate a licensed talent agent can take, as well as requirements that the talent agent post a bond and maintain a license with the state.

Talent managers, on the other hand, are not directly regulated by the state, and therefore can charge a higher commission and are not as limited in the type of business arrangements that can be entered into with clients. There are also business managers that might be primarily involved with the management of successful client’s businesses, including maintaining investment portfolios, maximizing profits from libraries of properties, and making sure royalties are paid and accounted for by distributors and publishers.

In many states talent managers are prohibited from directly “soliciting employment” for clients. That does not mean a talent manager cannot help find work for a client, but it does mean that either the client will be asked to also have a licensed talent agent, or otherwise the offers for employment must be handled as introductions to projects and producers. For this reason, talent managers generally are more involved in long-term career building, rather than day-to-day submission for roles or writing jobs.

Deciding on the type of representation that is best to work with really depends upon where you are in your career. Many young writers and actors will opt for a talent manager, because, first, there are more of them and talent managers are sometimes more willing to take a risk on young talent, and second, the talent manager might spend more time with a new client than an agent.

If you have an established career with some solid experience, a talent agency might be able to push your career to the next level. Talent agents generally need to see existing, commissionable work before signing, since talent agents in most states are prohibited from taking part directly in film, television, and music projects with clients. Generally, the larger the talent agency, the bigger the projects the agent can find for a client, but beware of getting on the bottom of the list of a big agency, as you might get very few calls if bigger clients are keeping your agent busy.

Finally, every client would like to be in the position to also have a business manager, to help oversee a library of properties and maintain the revenue stream coming in from royalties and residuals. However, many business managers have a monthly maintenance fee, and for many younger artists that minimum might be larger than the total revenue coming in each month. So make sure you ask about fees and minimums upfront.

When it comes to verifying that someone is a licensed talent agent in California, that is relatively straightforward. The State of California maintains this website that can be searched for licensed talent agents: www.dir.ca.gov/databases/dlselr/talag.html.

In the State of New York, search the following database: https://a858-elpaca.nyc.gov/CitizenAccess/. Other states also maintain databases of licensed talent agencies.

Remember that no such databases exist for talent managers or business managers, because no special license is required in most states.

Before signing a representation contract with a talent agent or talent manager, you should have the contract reviewed by an entertainment law firm like ours. The best way to make sure that you are going to be fairly represented, and are signing a good deal, is to have the agreement reviewed, and since we work with many talent agencies and management companies, we can also provide our own feedback about the reputation of the agency.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

In simple non-specific terms, if an investor contractually agrees to provide funding for a movie in exchange for certain profit participation, and subsequently reneges upon that agreement by failing to deliver said finance, thus leaving the film only able to finish by seeking alternative funding, what rights to the finished film will the reneging investor retain if any? Does a breach of contract provide entitlement to the filmmakers to seek reparation in the form of damages?   

Answer by Brandon Blake, Entertainment Lawyer:

There is no more important issue facing independent producers than how to successfully arrange investor financing for a film or television project and the renewed IRC Section 181 tax deduction for film and television productions is bringing fresh interest from private equity investors. Not only was Section 181 extended again through December 2016, but for the first time live theatrical productions are also covered by the IRC Section 181 tax deduction.

I am not sure what structure you are using to raise the investor financing, so I will discuss a few different options for what can happen when investors renege on investor financing. There are two main questions above: First, what rights will the investor keep in the project if the investor does not deliver financing, and second, what damages can the producers pursue against the investor.

The investment structure will determine what happens to the rights in the project if an investor leaves, and what liability the investor will face. The following structures would each have different consequences on these two questions.

Development or Production Offering: If a producer has set up a development or production offering with the intent of relying on the Section 181 tax deduction, the producer should file for exemption from registration with the SEC and each of the states where investors reside. If the offering paperwork is set up correctly, the investors will not get any interest in the underlying rights to the film, and the investors failure to provide the funds will be a straight-forward matter of cancelling the subscription agreements. No rights will transfer to the investors.

Moreover, there really should not be a problem with investors reneging, because the offering cannot close until the producers raise the minimum. The investors will not be granted any interests until the check or wire transfer has cleared. There would be no liability for the investors either, because only by signing the subscription agreements and sending payment can the investor make a binding pledge of funds to the film or television series. Most states allow a 5-day period after that to cancel the subscription, after which time the investment becomes irrevocable.

Co-Production: In a co-production situation where both companies are in the film or television business, it will depend entirely on the terms of the co-production agreement. In general, if the financing was one of the conditions of the co-production agreement then if the financing is not raised, the rights will simply transfer back to the producer. Regarding investor liability, that liability should be specified in the contract, and if the contract is breached, then both compensatory and punitive damages may be available to the producer.

Investment Contract: The investment contract can be problematic in this situation for a couple of reasons. If the investor is a private individual and not a company that is in the business of financing feature films, then the investor is owed the SEC and State disclosure statements. The SEC also requires certain financial statements and informational filings about the issuer, and the state where the investor resides will also usually separately require much of this same information.

When an investor is only provided an investment contract, the investor typically has the right under federal and state securities laws to renege on the investment. So in this case, there might not be any liability at all for the investor breach. The investor can easily raise the issue of insufficient disclosures, or even make a claim against the producer for securities fraud, in order to get out of the investor’s commitment.

Investment LLC or Partnership: Once the investor becomes a member of the LLC or partnership that investor will have an interest in the rights of the film, regardless of whether or not the investment funds have been transferred. There should be some way specified in the operating agreement for removing members, although such action might require a majority or unanimous vote of the members.

Much like the investment contract mentioned above, when the producer sets up an LLC or partnership with the intention of raising investment money for a film or television show, the investor often does not receive the required SEC and state disclosures. So for private investors, there may be no liability at all for reneging on the investment. In many ways this is the worst way to set up a film or television investment.

There can be reasons to set up an arrangement like this, and sometimes when both parties are sophisticated investors it makes sense, but there is nothing in the basic structure of the LLC that will protect the producer from an investor who does not deliver on the promised funds.

The renewed IRC Section 181 tax deduction has given a huge gift to producers who missed out in 2014 on starting a fully tax deductible production. If producers set up a compliant offering and shoot at least 1 day of principal photography this year, the deductibility of the production can continue on into 2017 or longer, provided the photography continues in the ordinary course of production. A development or minimum/ maximum offering will allow the initial funds raised to start production, thereby locking in IRC Section 181. The best way to avoid issues like the ones discussed above is to set up an offering, protecting both the investors and the producer.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects and television series for more than 16 years. Please feel free to contact my office about a quote.

- by Brandon Blake, Entertainment Lawyer

Question:

I have a multi-part question:

1) Am I legally able to write a spec script on an existing work (book) to gain producer interest with the goal of the producer liking the script so much that the producer purchases the available rights to the existing work?

2) What is the difference between a work ‘inspired by’ and ‘based on’ an existing work?

3) I would also love to know if your firm can represent a writer (who does not have an agent) to a producer whose acquisitions specialty has expressed an interest in looking at my project as long as it is presented to them by an agent?

Answer by Brandon Blake, Entertainment Lawyer:

 A couple of important rights questions that I get a lot of comments about from clients. Every film and television project starts with a written work so I try to provide as much assistance as possible for writers, whether they are hired to write projects or are writer-directors or writer-producers. Let me answer your questions in order:

1. Spec Adaptations

When it comes to spec scripts to existing works, there are a number of considerations to keep in mind before starting. I will point out that the question here does not deal with selling the spec script to the author or owner of the property, but doing so for the purpose of facilitating a sale of the underlying work to a third party. This is a different approach than the typical spec project where the writer wants to contact the original owner with the new adaptation. I still do not think this is a great approach, for a number of legal and strategic reasons that I will detail below.

First, with respect to the legal considerations, most adaptations of existing works will end up being infringing works under US copyright law, as well as in any country that is part of the Berne Convention, which includes Europe and most of Asia, 170 countries in total around the world.

While it is possible to create an adaptation so tangential from the original as to not constitute a copyright infringement, another consideration would be trademark law. Many of the famous characters in animation and publishing also have trademarks that protect use, so it is possible for an adaptation to not constitute a copyright infringement, but still be a trademark violation.

Finally, in this case, you are essentially “publishing” your adaptation to at least one other person besides the owner, and this would increase the possibility that the work would be an infringement.

Second, writers should consider the strategic position that writing an unauthorized adaptation of a work puts the writer. In this case, the producer does not yet own the underlying rights, so the writer is not in as bad a situation as usual, because the producer would have to hire another writer to avoid acquiring the writer’s adaptation. So from a strategic position it is not as poor an idea as when approaching the original owner, but would still be a tough place to negotiate from.

Third, it goes against industry custom to adapt a work that the writer does not have authorization to write. If a writer approaches agents or producers with the idea to write a spec adaptation, most of them will not want to discuss it. The exception of course, and this is a big exception, is if a producer or author has asked the writer to write a spec script, but without a formal agreement being signed. This can certainly happen, and some producers are very informal, but given that there was a request made for the work, that separates the situation in my mind from the purely spec situation. Also in this case, presumably even if the producer asked the writer to prepare the adaptation, the producer does not actually have the rights either.

2. ‘Inspired By’ versus ‘Based On’

There is not a legal difference between stories that are ‘inspired by’ versus ‘based on’ some other material. Also in reference to the above question, a writer is not free to write a work ‘inspired by’ another work of fiction such as a book or movie. Generally, when a film uses the ‘inspired by’ phrasing in its marketing and promotion, it is trying to create a marketing link to some popular real life story or event. It often indicates that the rights to that story have been fictionalized and that no first-hand works or life-stories have been acquired.

‘Based on’ generally means that the producers or production company did acquire the rights to the real life story, and suggests the work is in some way authorized by some of the participants in the events. However, there is not a legal distinction between the two phrases, and using the phrase ‘inspired by’ does not relieve the writer from needing to consider acquiring the rights to the story.

3. Representation of Projects

One of the things that a law firm like ours can do is to serve as representation for a project, so that it can be submitted to a production company or studio. I have published a number of articles about the various legal reason why producers, production companies and studios do require the script, story or treatment to be represented by an agent or entertainment attorney, so I will not go through those again. Feel free to visit http://filmtvlaw.com/blog/2015/12/30/agent-and-lawyer-submissions where I have a fairly detailed explanation of the situation.

When we represent a project, we do so as part of a package of services, which allows us to review the material, help with any needed legal issues, and also submit the project to production companies and studios that might be interested in the work. We do not provide one-off type of assistance such as sending one letter for a client, as that would mean that the project was not really represented by our firm.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects and television series for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer  

Question:

I have used many google images (photos of mass shooters and serial killers) in my documentary. How do I get permission to use them? Is this FAIR USE?

Answer by Brandon Blake, Entertainment Lawyer:

A great question about images sourced from the Internet, and from Google in particular. Having worked with many documentary filmmakers over the years, I know that one of the most problematic issues is often images and videos sourced from Google and other search engines that are perfect for the project but are of unknown and sometimes unknowable ownership.

Over the years a number of advances have been made in terms of royalty free and flat fee image and video houses, most of which are pay or subscription based. However, most of these do not have the massive volume and variety of images available that search engines can provide.

However, a lot of producers do not realize that Google can now be used to search for free-to-use images.  Google will filter for images with a Creative Commons license, public domain material, and images with a GNU Free Documentation license. This feature can be used as part of an “Advanced Search” or “Advanced Image Search.” While the licenses sometimes take a little research to find because you must click through to the actual website (the license is not listed by Google), it is less work than going to multiple stock image sites and searching for the royalty free images on each site.

As Google makes clear, online licenses are not 100% certain, since an image might be a collage or composite of multiple images, and it might occur that the artist or webmaster did not license the underlying rights to the work. Moreover, it is possible that a webmaster might make mistakes or that certain images might be filed under a free license by someone without actual authorization to clear the image. However, this is a big step in the right direction and even stock image and footage houses have problems with chain-of-title for images in their libraries.

Youtube also includes a user license that permits re-use of content when the material is not downloaded but simply linked on a website. In this case the key is that the footage cannot be downloaded, but must be linked to in whole, and there cannot be custom code used that blocks cookies or advertising from the linked content. This is useful for website use, although paid commercial use is restricted.

In principle, stock footage can be searched on Google in the same way as discussed above for images, which would include the right to modify the content and download it. However, because most of the video on Google is from Youtube, the same restrictions on downloading and reuse apply that are discussed above. Alternatively, archive.org, Flickr, and Vimeo all provide license based searching of video archives. Again, the same restrictions and limitations would apply regarding the chain-of-title and reliability of the licensing information included.

When preparing a commercial project, it would be advisable to do all of the following:

First, download and print to pdf the licenses. Do not rely on the fact the images and footage were found in a free-to-use image search. Go the extra step of actually saving the documentation for each of the images used.

Second, try to verify public domain claims by actually searching the image source materials or the author with the United States Copyright Office. The largest source of confusion surrounding image and footage licenses involves mistaken claims of “public domain” status. There is no one date before which a copyrighted work must have been made to be in the public domain. There are films from the 1970s that have fallen into the public domain due to errors with the copyright registrations, while other movies from the 1930s are still firmly copyrighted and aggressively protected by studios and distributors.

Third, if you are preparing a work intended for studio or network distribution, have a law firm such as ours provide a clearance letter for the material. As part of the final delivery requirements by any major television or feature film distributor, a clearance letter from a law firm will be required by both the distributor and also by the E&O insurance company. Filmmakers can save a lot of time by first, saving the licenses to all materials used, so that additional research does not need to be done later, and second, by clearing key images and footage early on with a law firm, so that the content does not need to be removed later. The costly part of licensing mistakes is usually the editing time required to remove images and footage that turn out not being available. Contrary to some wishful thinking, in 16 years I have never worked with a distributor or network that licensed the content of a finished project on behalf of the filmmaker as part of the distribution or acquisition agreement. Licensing is always the producer’s obligation.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects and television series for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

I have written a dramatized musical on the story of the lives of the founders of a well-known organization (now run by a foundation). There are four founders in the story – one is still alive and three are deceased. There are also three children in the story who are still alive. I have the following questions about life story rights:

1) I have been told that if a person is, ‘famous’ or ‘a public figure’, I can tell their story as long as I do not defame them in any way, shape or form. I have been told that in this circumstance their life stories are public and therefore no rights are needed to tell their story. Is this correct and if so how do I determine if a person is famous?

2) If I need to get Life Story rights for the deceased founders, do I have to get them from the foundation or their surviving children (all eight of them) and must it be individually or on one document?

3) Do I still have to get life story rights for the children who appear in the story?

4) As the writer do I have to get all of the above arranged prior to getting a Producer on board or will a Producer take care of it?

Answer by Brandon Blake, Entertainment Lawyer:

Thank you for some great questions about life rights and when life rights need to be obtained. Probably more than ever, studios, networks and publishers are seeking out dramatic, real life stories as the foundation for new movies, television series and books, so the acquisition of those rights is becoming increasingly important. Having represented both sides, working both for the rights holders and at other times producers looking to acquire the rights, I have a great perspective on the legal and negotiation issues involved. Because this is a multi-part question, I will answer each question in order.

1) Public Figures and Defamation: Nothing causes more confusion among writers and producers than laws regarding defamation. The United States Supreme Court created special rules regarding how “public figures” can bring defamation suits against media defendants. While these court decisions are somewhat complex, the relevance to the entertainment industry is limited.

The limitation comes from the fact that these rules only deal with defamation, and there is a lot more at stake in life rights than merely releases from defamation claims. Life rights are a collection of federal, state and common law rights that the life rights holder owns or controls, including defamation, false light, invasion of privacy, right of publicity, copyright and even trademark. Of all those rights, the constitutional rules regarding defamation only apply to one set of rights held by the rights holder. It is also not true that public figures have no protection from defamation, although there is a much higher standard to be met by the public figure plaintiff than by an ordinary citizen.

However, for the public figure, there is much more likelihood that such a person will hold a right of publicity to his or her likeness and biography rights. For a media production about the public figure, these rights of publicity would need to be acquired, regardless of whether or not the work was defamatory.  This issue is not merely academic either. The estates for deceased celebrities like Elvis Presley, Marilyn Monroe, and even Mark Twain are out there actively protecting the publicity rights of thousands of noteworthy individuals of the past.

2) Where to Acquire Life Rights: Generally, the estates for celebrities will maintain the life rights and be the principle source for licensing the rights for entertainment projects. However, the estate is not necessarily the only source, and the children, family, and even friends of the individuals might be sources of rights. When dealing with sources other than the estate, care must be taken that the party being negotiated with really has the rights needed for the story. There might be a need to exclude or fictionalize certain characters and parts of the story when the rights holder does not have all the rights to the story a producer wants to tell.

3) Rights From Celebrity Children: Celebrity children are treated like any other person. If the child is going to be part of the story, then their story rights must be acquired. It all depends on the story and whether or not those rights are necessary for telling the larger story of the work.

4) The Writer’s Responsibilities: This is more of a business question than a legal question. I will say that the most successful writers I have worked with do take on the task of acquiring the underlying rights themselves, because that is where a lot of the power of the story comes from actually. Letting a producer go out and acquire the life story rights might put the writer in the position of being kicked out of the project by a thorough re-write, while if the writer has acquired the life rights, the writer becomes absolute controller of the project.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects and television series for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question: 

First of all I have ideas for projects that are Disney related. How can I present them to Disney and other filmmakers and writers who have worked with Disney? Mind you I have experience in filmmaking. I ask because I would like to know if you do know of any agents that will represent me? Especially if I would like to work with Disney.

Answer by Brandon Blake, Entertainment Lawyer:

First off thanks to all the contributors last week. With so many responses it is hard to know where to start but I am trying to answer the most representative questions first.

I have had the good fortune of working with Disney on a number of recent projects, and actually represented the estate responsible for such classics as “Dumbo” and “101 Dalmatians”. In answer to your question, let’s first talk about the way agencies and studios work with each other to get feature film and television projects produced.

Major agencies supply a constant stream of scripts and stories to studios, production companies and networks, and often package those projects first before presenting the scripts. Packaging means getting an A-list performer, director, or other celebrity with broad name recognition and an existing fan base interested in a script or story. Agencies typically shop the project internally first, in order to find current clients who would be interested in attaching to the project.

Once the agency feels that it has enough interest from talent attached to the script, the agency will then present the project to studios, focusing on producers at the studios who are known to be looking for particular stories for production. If there is interest at the studio in the script, a similar kind of internal shopping process begins, where a producer or acquisitions executive will approach others at the studio and try to build up interest in the project at the studio. Eventually the President and CEO of the studio will get involved, deciding to green light projects that have been internally developed.

So the question is how to become a part of this process, when so much of the development and shopping work is being done internally at major agencies and studios, and television networks. There are a couple of solutions for independent producers who want to bring scripts into the Hollywood system.

The first way is to work on packaging the project during development, and make attaching cast, director, or other celebrities the first step in getting the project made. In one project I represented that later was picked up by a major agency, my client and I worked to create substantial publicity around the story during the development phase, which attracted Keanu Reeves and David Ayer to the project.

At that point a major agency got involved, which began shopping the project to studios. Basically we saved the agency a lot of time, because not only was there a story with an existing audience, but talent already attached. Agencies can find out about projects indirectly, based on clients who are cast members, writers, or directors on the project, or the filmmakers might plan a promotional strategy that indirectly lets the agencies know about the project.

The second approach for agency representation is the more traditional way. Clients with an established track record of commercial projects can be shopped directly to the agencies. In this situation the agency is looking for a client, not a script or package, because the agency is looking to represent a writer or director’s whole career. The agency, in this case, will try to find the client work on existing projects at studios and production companies.

Regarding advice for how to get projects seen by agencies, I would offer the following specific ideas:

1) Produce great promotional materials. The look book/ pitch book, website, poster and one-sheet should be the highest possible quality. After 16 years in the entertainment business, I can spot projects that will get agency and studio attention from the poster alone. It really is that important. I get a lot of questions about trailers, demo reels, sizzle reels, and pilots, and my answer is always the same; if the material is broadcast quality and exactly reproduces your intention for the series or movie, then yes, the more material the better. But anything where you are asking the agent or studio executive to “imagine” what you can do with a bigger budget, do not include it. For various reasons, television and studio executives do not have very good imaginations. Show them what you can do right now or do not include it.

2) Consider hiring a publicist. Never underestimate the power of some well-placed news articles about the project. There are a myriad of ways to build a story around a prospective film or television project. If your story rights are not strong enough to get a publicist interested, then chances are the story will not impress the agents or studios either. Work on ways to make the story newsworthy.

3) Package the project. Most producers, after spending a few years in the entertainment business, will have at least one or two celebrity contacts to approach about the project. Do not save those for “the next project.” Put everything you have into the project that is ready to develop.

I have helped numerous clients package and develop projects for film and television. Please feel free to contact me about your project and I would be happy to discuss ideas.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects and television series for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question: 

I have written a true story screenplay based on my life. WGA registered only. I brought in a co-writer to help polish. He wants to use a WGA Writer's Collaboration Agreement. Neither of us are WGA members. If there is a resulting dispute, will the WGA mediate? If the other writer buys me out of the 50/50 agreement, will he still have to purchase my life story rights? Thank you.

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for contacting us. A couple of great questions here about the WGA Writer's Collaboration Agreement, rights in screenplays, and life story rights.

First of all, I will briefly respond to the issue of WGA registration. Unless you are a WGA member, registration with the WGA is not required, and in fact unless you renew regularly it expires after a period of years. I do not find the WGA application any easier than the United State copyright application, and it always surprises me how often writers opt for WGA registration when it is also possible to file a copyright online.

I do not discourage the WGA registration, and any evidence regarding the creation and ownership of a screenplay is valuable, but WGA registration does not allow for statutory damages and before any litigation, the US copyright registration will need to be completed. Given that the registration lasts for the life of the copyright, it makes a lot of sense to invest the time in a real copyright filing.

Regarding WGA arbitration, the production would need to be subject to the WGA Theatrical and Television Basic Agreement (MBA) in order for WGA arbitration to apply. If the production company is a signatory with the WGA, then WGA arbitration would apply, and if either writers are WGA members then the production company would have to become a signatory with WGA.

Regarding a buyout under the WGA Writer's Collaboration Agreement, the terms of such a buyout would be determined entirely by the way that the agreement was amended and completed before signing. If the underlying life story rights were made part of the WGA Writer's Collaboration Agreement, then it is conceivable that any buyout could deal with both the underlying rights and also the screenplay rights.

However, typically a WGA Writer's Collaboration Agreement would not deal with all of the rights and approval issues that come up in a life story license. Life story rights are generally dealt with like any other underlying rights to a project, meaning that they are kept separate from the rights of the screenplay and are acquired directly from the underlying rights holder. From a producer’s standpoint, it would not be advisable to rely on the typical rights acquisition language in a WGA Writer's Collaboration Agreement to also acquire life rights.

As with any legal matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects and television series for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

Just finished my first feature film and got it picked up for world DVD distribution. When it was sold to the UK the distributors released it with an incorrectly transferred music track causing it to sound like a jumping dirty CD throughout the entire movie. Many customers have complained about this and returned the disc. The UK distributor has warned me not to bring up the problem publicly and refused to fix it. Being a first time director what can I do? It's now affecting my second feature as my film's quality is now being called into question.

Answer by Brandon Blake, Entertainment Lawyer:  

Great question. Having worked with feature film distributors for more than 16 years, representing filmmakers and working to get the best deal possible for both independent and studio projects, this is certainly not the first time I have heard of similar problems with distributors. Once the distribution agreement has been signed there is not much that can be done unless there is some provision in the contract that guarantees some level of performance from the distributor. In order to fully address this question, I will go through some ways to prevent this type of problem from occurring and then I will discuss some ideas for how to address it after the contract is signed.

Although it seems obvious, the easiest way to deal with a problem like this is to work with a reputable film distributor. Most distributors do not like returns any more than the filmmaker and will work to make sure that the sound and video quality are as good as possible before release. In fact, I often have clients complain about having to remaster their audio tracks as part of the delivery requirements, which ends up being quite expensive. One of the things that a good entertainment lawyer should do for a client is to know the reputation of a distributor before starting negotiations. I have worked with most of the film distributors worldwide so I can generally warn a client about problems like these before even beginning to negotiate the deal.

The second thing that can be done is to make sure that the distributor duties are specified in the distribution agreement. Often at first there is little or nothing in the agreement that specifies that the distributor must do anything other than pay royalties. I worked with a major studio last year that did not even specify they had a duty to release the film! Fortunately I pointed out the issue to the business affairs person and he was happy to correct the problem, but I wonder whether he ever changed the template or just our deal. I have found that distributors are generally very amenable to making changes to agreements, but only if the problems are brought up before the deal is signed. After signing it is typically hard to get anyone to even return a call.

Finally, once the contract has been signed and the film has been released, go over the agreement carefully and see whether there are any provisions dealing with distributor duties. There should at least be an obligation to distribute the film, and you may have negotiated for the distributor to complete certain delivery items. What you will not find is any right to stop the distribution of the film, because in any commercial distribution agreement one of the most important provisions from the distributor side is what is called a “waiver of equitable relief,” meaning the filmmaker is waiving any right to get an “injunction” or to stop the distribution of the film for any reason.

Please consider retaining our firm to review the agreement and find out your legal rights. BLAKE & WANG P.A. (www.blakewang.com) has a number of package rates that can help make our services affordable even on independent film budgets.

Question:

For a fiction feature film: How identifiable do people on the street (not in the cast) have to be to require signed releases?

Answer by Brandon Blake, Entertainment Lawyer: 

Over the years I have gotten more questions about releases than almost any other type of contract. Often among student filmmakers or first-time independent producers the release becomes one of the only documents on set. So in responding to questions about releases first I like to discuss how to define a release, second, where the legal basis for a release comes from, and third, I will comment on when a release of some kind is usually used.

At the most basic level all contracts are the same. A contract is an agreement between two parties where both want something out of the relationship. There is the concept of “consideration”, meaning both sides are getting something of value out of the arrangement. Generally courts hold there must be consideration on both sides to enforce an agreement. 

So what is the releasing party getting out of the release? Theoretically, the party signing the release is getting the privilege of being in a film or TV show as some kind of background player. But to the surprise of some producers not everyone wants to appear in a movie or television show. So that is where the legal basis for releases begins. 

The legal requirement for releases comes from a number of different laws. Most basically is the right of privacy. The right of privacy may be codified, as it is in California or New York, or it may be a common law principle. California Civil Code, Section 3344 addresses the rights of privacy and publicity in commercial film and television productions in California.

The right of privacy, as it relates to film and television, states that a person has the right to not have their name, voice or likeness used commercially. In addition to the right of privacy, the torts of defamation and false light are both applicable. When someone is recorded there may be certain facts implied by the production. For example, if a person was filmed outside of a demonstration, that might imply he or she was part of the protest. Finally, the right of publicity disallows use of someone’s name or likeness as an endorsement or ad without consent.

So when is a release required? States like California and New York have made it fairly clear that for commercial film and television productions, a person cannot appear recognizably without prior consent. Other states rely on common law standards, so the laws will vary by state and use. But in general, it is by far the standard that everyone appearing recognizably in a feature film should have signed a release or otherwise clearly expressed consent to being recorded. 

The definition of terms like “commercial” and “recognizable” are unfortunately subject to dispute, and even in states with well-defined Codes, the application to any particular production is difficult. But producers hoping to get their project commercially distributed, and therefore requiring E&O insurance, should error on the side of more documentation and try to get signed releases from just about anyone possible.

As an entertainment law firm, our firm offers a number of packages that can help make it affordable to get the contract and legal help needed on any size of film or television production. Feel free to contact BLAKE & WANG P.A. (www.blakewang.com) about how we can help make sure your project has the legal documentation required by distributors and E&O insurance companies.

Question:

Why do television networks and film studios require film producers and television producers to submit projects through either agents or an entertainment lawyer?

Answer by Brandon Blake, Entertainment Lawyer: 

There are a number of different rationales for why entertainment companies of all kinds require film producers and television producers to submit new projects through an agent or entertainment lawyer, which range from the practical to the obstructionist.

For practical purposes, entertainment companies have a legitimate concern about liability. Copyright infringement suits are common, and once an entertainment company has received a pitch for a television series or film production it is going to be potentially more liable for a copyright infringement lawsuit. In order to reduce this risk, entertainment companies want a trusted third-party to have documented the pitch. If the film producer or television producer has a well-known agency or an entertainment lawyer submit the project, there is going to be a record of exactly what was submitted, by whom, and when. If a lawsuit ever materializes, there will be a third-party with evidence as to what happened. That is also beneficial for the film producer or television producer.

From a convenience stand point, television networks and film studios have another motive. This rationale is based on understanding what it is like to receive 10 to 20 thousand submissions per year from film producers or television producers, looking to get an entertainment project made.  It is a daunting task to review so much material, so television networks and film studios want the agent or entertainment lawyer to do some of the work for them. By requiring submission through an agent or entertainment lawyer, the television network or film studio is making the producer do part of the work, having an experienced entertainment representative review the material and quite probably make suggestions and changes before the materials is submitted.

Finally, the requirement to submit through an agent or entertainment lawyer creates another hurdle to surmount before the material gets reviewed. This reduces the number of submissions as some percentage of television producers and film producers will lack the time and financial resources to obtain an entertainment representative to submit the project.

Rightly or wrongly, agent or entertainment lawyer representation has become a necessity when dealing with the large, bureaucratic media companies today.

Question: 

I am wondering if you can comment on this: Let's say I had some "great idea" for a story (film, TV, whatever) and I worked on it for months, perhaps a year even. I developed it and got it to a point I liked. Then, after all that, I learn about a project that was done more than 30 years ago that has a lot of the same elements. It's not exact, but the basis is extremely similar.

Now, to be clear, I had no idea this other project existed at all - and it's only by happenstance that I stumbled across it. So, LEGALLY - what do I need to do to protect the fact that I really did have the idea on my own?

Answer by Brandon Blake, Entertainment Lawyer:  

At one time I would sit and answer legal questions for hours in the evenings as legal advisor to IFP/West. Eventually my practice got too busy to keep helping in this way, but this question about independent development of an existing project came up fairly often.

I am going to run through several different ways to look at the question based on different areas of the law that apply. Some of these might seem obvious, but I do this because you did not provide the name of the property. Years ago I spent about a half hour explaining these same points to an eager young filmmaker who took a lot of notes. At the end of his half hour I finally asked him what property he was talking about, since he did not offer it earlier. His answer: Superman!

The first area of the law that you should consider is trademark. While copyright is an important and relevant question, many filmmakers do not know that trademarks apply to many different well-known characters. So many famous characters, whether they are from comic books, cartoons, or even live-action films can and are trademarked. Trademark law does not deal at all with authorship or ideas versus tangible expression. The sole question is whether a trademark or servicemark is a source identifier and whether the infringing work would create consumer confusion. So a man in tights with an “S” on his chest is going to be a problem, no matter what.

The second area of the law that is relevant would be the right of privacy and the right of publicity. If this work unintentionally copies or repeats elements of a real life story there may be a problem, even if there is no copyright infringement. That is the reason why clients will perform a script clearance on a project after the script has been finished. If a film that is absolutely fictional accidentally uses names or characters that are the same or similar to real life people and their stories, there can still be liability, even if the work was truly fictional. Now during trial it might be proved that you never had any relationship or knowledge of the real people involved, but by the time you have reached trial you or the distributor may have already spent hundreds-of-thousands of dollars defending what could be a frivolous suit. So filmmakers and distributors do what they can to avoid any unintentional copying of real life stories, too.

Finally, copyright will of course also be an important consideration. Again, during a copyright infringement trial, access to the infringed work is one of the elements of the test for copyright infringement. However, the access test would typically be applied after the film was released to the general public and a lawsuit had been brought. By that point, by your own admission, you would have had access to the work. Moreover, because proving or disproving real access is difficult (Can you show you just came out of a cryogenic freezer? And if so, for how long were you in?) courts generally look at whether the defendant could have theoretically accessed the work. For an unpublished work with a claim of infringement, that means showing that this unpublished work had somehow been submitted to or otherwise obtained by the producer. I once had a would-be client suggest that a producer mounted hidden cameras throughout his house. Needless to say, I did not take the case.

But when it comes to a published work, such as a feature film that has been distributed, a court would generally assume that access was possible and would not stay up late at night considering whether you had bought a ticket for this film or perhaps a different one on the weekend in question.

So the practical answer is that a work that was independently developed but ends up being similar to an existing, published work is probably going to be a candidate for litigation, and the technicalities of the Copyright Act will not protect the producer. That might seem unfair, and I happen to personally agree that copyright law is overbearing and shrinking or killing parts of the American film and entertainment industry, but producers need to know the law first. Then maybe you can join with others to help make changes. 

I have been representing film and television producers for over 16 years with the law firm of BLAKE & WANG P.A. (www.blakewang.com). Feel free to contact us for a quote.

Question:

What does it mean to "package" a project? Do big studios only look at packaged projects?

Answer by Brandon Blake, Entertainment Lawyer:  

Most simply put a packaged project is a feature film project or a television series in development that has one or more well-known performs attached to the project and possibly also a famous director. A packaged project is in between the script stage and the pre-production stage. As an entertainment lawyer I have been helping filmmakers and producers package projects for many years.

While many screenwriters feel that a really great script will sell itself to a production company or studio, the truth is that the vast majority of projects that a studio or major production company will look at are already packaged projects. This is done for multiple reasons on the studio side, some of which actually make a lot of business sense.

Studios and television networks realize that getting a-list performers attached to a project takes time. Actors and actresses are looking for different things in projects. In general a-list performers want to play heroic parts, or at least parts that the audience will empathize with in the story. They usually want to be portrayed as attractive and they want a good story. If there is little money in the role, such as with an independent film, the actor or actress will want to be associated with a film that has potential for good reviews and a strong festival run. Then there are idiosyncratic traits. I once submitted a project to an actor that had recently decided he only wanted to star in a western. The agent loved our project but there was no convincing the actor otherwise.

Studios and television networks also often want to see that somebody "important" likes the script or concept before they get involved. A studio development executive might be nervous about bringing a script to his or her boss, because maybe the studio president will not like the idea. So if an a-list actor or major director is attached nobody can be blamed if the project fails.

The documentation of the attachment will vary depending on whether you are producing a feature film or television series. When it comes to television development, especially reality television, the attachment of the performer or celebrity host is even more important and is often the most important single factor. Therefore a contract may need to be signed with the host to protect the producer's place in the television development process before going to the network.

While agents and managers are often blamed for getting in the way of the development of scripts and television series, I have found in my own practice that the opposite is true. Often agents and managers are quite excited about a variety of projects, and it is actually the talent who really makes the decisions.

When approaching agencies and management companies, most will require that the producer be represented by an agent or an entertainment lawyer, and our firm has represented many producers who have successfully packaged film and television projects. Feel free to contact BLAKE & WANG P.A. (www.blakewang.com) for a quote for affordable, high quality legal service.