Entertainment law

CRPR 312 with Vance

Desny v. Wilder

Plaintiff called the assistant twice to tell her about his original take on a true story. On the second call he said he wanted to be fairly compensated for his idea. Defendant makes the movie that uses the original idea mentioned by the Plaintiff. Plaintiff wins the lawsuit; court ruled it as a proxy for Defendant.

Carriage agreement

The kind of agreement that is involved when a Network makes a deal with a multi-channel video distributor

Pay-or-Play clause

You have to pay the creative no matter if the production is made or not. Pro is that it can get talent on board more easily. Con is sometimes it pushes a project to get made when it isn’t ready.

The three primary types of overall development deals

Exclusive, first look, and housekeeping

Exclusive deal

A development advance and studio office to only make things for that one studio.

First look deal

The studio you made the deal with gets to look at/purchase before anyone else, if they pass you have the right to pitch elsewhere.

Housekeeping deal

No advance, but an office on the studio lot and maybe a secretary

Subscriber fees + ad revenue

The two primary sources of revenue for entertainment content

Option contract

A contract to buy time before possibly buying the rights to something. Includes the purchasing agreement

Blaustien v. Burton

Plaintiff gave the Defendant his casting ideas for a movie at a part. The Defendant made the movie without the Plaintiff. Plaintiff won because of an implied verbal contract since the Plaintiff was an established producer.

Implied contracts

Desny v Wilder and Blaustien v Burton'; the behavior of the individuals or laws imply that there is a contract between two or more individuals

Express contracts

A written contract

Copyright, trademark, patent, and trade secrets

The four types of IP

Terms, Offer, Acceptance, Consideration, Legal purpose, Good faith, Written or verbal

The main elements of a contract

Terms in a contract

The provisions of the agreement need to be SPECIFIC, not vague or ambiguous

Offer in a contract

A promise to do or refrain from doing something in exchange for something of value

Acceptance in a contract

Must have clear acceptance to the offer. A response to an offer that changes the terms is a counter-offer, not acceptance

Consideration in a contract

What each party gives or gets form entering the contract

Legal purpose in a contract

The intention of the contract has to be legal

Good faith in a contract

The court will imply a covenant of good faith and fair dealing’ between the parties

Two parts of an option to purchase contract

Option and purchase agreement

Written or verbal contracts

Many contracts in the entertainment industry MUST be in writing

Shopping agreement

An agreement that allows a producer to get a buyer for material; shorter than an option agreement

Attachment agreement

An agreement between an element that brings value to a project and a producer that attaches them to the project

Waterfall

Refers to the revenue stream of a film from box office receipts through all forms of exploitation

Gross Receipts

The same as box office receipts

Gross adjusted receipts

A negotiated term meaning gross receipts minus certain deductions

Gross participants

Those who negotiate a percentage interest in the film’s gross receipts (ie Tom Cruise)

Net profit participation

Those who negotiate a percentage of the film’s net profits

Distribution fee

A negotiated percentage of the Gross Receipts retained by the distributor

Equity

Investors in a film are considered this kind of investors since they only get paid back from the exploitation of the film

Negative pick up

A contract between a producer and distributor in which the distributor commits to distribute the film for an agreed price, and the producers that contract to obtain production money from a bank

Pre-sales

Selling particular film rights for a fixed payment to be paid upon deliver of the completed film

ATL

The uppermost categories of a budget that encompass all the costs relating to the rights of the screenplay, writing, producers, director, editor, CD, and principal cast

BTL

The lower portion of the budget that encompasses everything else

Distribution rights

All the exploitation rights the producer has to grant to each distributor

Theatrical distribution rights

The right to exhibit the work in theaters open to the general public on a regularly scheduled, admission fee basis

Basic television

The transmission of programming via television for which a recurring regularly scheduled fee is paid by subscribers

Pay television

Distribution via an advertisement-free subscription service and programming is sequentially schedules in a-linear format among all subscribers

TVOD (transaction video on demand)

Allows the consumer to screen the film for a distinct fee at a time and place determined by the consumer

VOD (video on demand)

Allows the consumer to request a program that is sent via some signal directly to the consumer and not to the general public

Pay per view (PPV)

Can be part of a TVOD platform, but where the consumer buys a program for viewing at variable times

SVOD (subscription video on demand)

The consumer pays a fee to subscribe to a service that gives the consumer access to a library of works at consumer’s choice

AVOD (ad sponsored video on demand)

A platform, similar to SVOD, that inserts advertising spots into the works

Home video

The rental or sale of tangible/physical copies of the work to consumers by so-called ‘video devices’

Non-theatrical distribution

Exhibition of the work to audiences by organizations not engaged in the business of exhibiting films to the public (airlines, military, and schools)

Exclusivity

An essential term which must be carefully delimited by producer among territories, media, languages, and time

Consideration

The numerous forms of payment that can depend on the nature of the distributor (advance, royalty, share of revenues, flat buy-out fee)

No

Is the right to privacy and publicity outlined in the constitution

Research, BATNA, role playing, setting reasonably high aspirations, consider the process

The 5 steps to prepare for a negotiation

Research for negotiations

Know background on the person, company, past deals, etc.

BATNA

The best alternative to a negotiated agreement

Role playing in negotiations

Practice with anyone you know and prepare to answer questions you might be asked

Setting reasonably high aspirations

Be hopeful and credible

Consider the process in negotiations

How are you going to approach the negotiation?

Email/text

The best medium to negotiate

Radar not armor, focus on interests, treat the other side as part of your negotiating team, don’t get angry get creative, don’t easily cave to quid-pro-quo, control the drafting, make the other side look good

The 7 elements of a reflective negotiator

Put on your radar, not armor

Listen, ask questions, learn what they really want

Focus on interests, not on positions

What do they really want

Treat the other side as part of your negotiating team

Emphasize the common goal, “we” not “me”

Don’t get angry, get creative

Think outside the box

Don’t easily offer quid-pro-quo

Don’t cave into split the difference

Control the drafting

Know the contract and negotiation in and out, communicate with your lawyer

Try to make the other side look good

Appeal to the other side

Legal fees are paid for, lower burden of proof that you’re the author, establishes publication date, statutory damages are covered

Four benefits of registering copyrighted work

Parody

Critiques or comments on copyrighted works

Satire

Critiques or comments on social standards or trademarks

it becomes it’s own new copyrightable work by critiquing or commenting on the original

The use of a copyrighted work will be considered ‘transformative’ when:

Yes

Can one ever parody a trademark?

Abandoned works, expired copyright, raw data, government created material, historical events, titles/names/slogans/short phrases, scenes a faire

Seven examples of public domain material

The right to grant non-exclusive licenses to others, equal undivided interest in copyright, required to pay other joint authors an equal share of any sale or license, all have the duty to avoid destroying the joint work

The four rules of joint authors of copyright

Commercial vs. non-commercial, the amount taken, the nature of the work, the market impact on the original work

The four factors a court will use in determining fair use

Life of the author +70 years

Work for hire (whichever is shorter)

• 95 years from the publication

• 120 years from creation

How long copyright protection lasts

The original works of authorship that are fixed to a tangible medium of expression. It doesn’t protect ideas, only the unique expression of an idea

What does copyright protect?

Creator of the work, whoever is paying the ‘work for hire’, and joint authors

Three types of copyright authors

Make copies, distribute the work, perform the work, create derivative works, publicly display the work

The five exclusive rights of a copyright author

Based on a copyrighted work, not a parody itself. Classic example is a song sung off key by an intoxicated singer with the intention of being funny. NOT copyrightable

What is a joke?

Gross receipts minus the distribution fees, prints and advertising, distribution costs, residuals, gross participants, overhead, interest, negative costs

Net profits

Distributor fee, marketing, distribution cost, residuals, gross participants, interest, overhead, negative costs

Deduction categories the distributor takes

Copyright the musical composition and copyright the recording itself

The two copyrights on a piece of music

The use of copyrighted work for criticism, comment, news reporting, teaching, scholarship, and research are not in violation of copyright law

What is fair use?

De minimus use

There is such a small (minimus) amount of the copyrightable work used, that there’s no harm. There is typically commentary over it

True

If an image is capture incidentally as part of an un-staged scene, it should be permissible to use.

False (in the USA)

Regardless of the existence of a written contract stating that the commissioned work is to be a “work for hire”, the author for copyright purposes is always the one who wrote the work

Compensatory damages, restitution relief, and liquidated damages

The three remedies for breach of contract

Reserved rights

Rights an owner keeps for themselves when allowing their material to be optioned

Boiler plate

Standard terms and conditions. The fine print in the contract

Force measure

The ability to cancel a contract if something out of your control happens, like war

Compensation for economic loss. Expectation + consequential + incidental damages - mitigation

Compensatory damages

Loss in value + other loss - cost avoided - loss avoided

Expectation damages formula

Direct damages. The gap between the promised performance and what was actually received

Loss in value

Consequential and incidental damages for reasonably foreseeable losses from the breach. Incidental damages are not typically reasonably foreseeable

Other loss

The court can’t force you to do someting against their will (slavery)

Injunctive relief

Define the work, option period, permitted activities, exercise mechanics

Key provisions in a contract

Flat fee, budget-based, TV/series fee

Ways to purchase IP/rights

Publication rights, sequel rights, stage rights, radio/podcast

Typical author reserve

Define the scope, third party releases, source materials, retain creative control

Contracts for life story rights

Liquidated damages

Pre agreed upon contractual amounts paid if a party breaks the contract to compensate the injured party.

Restitutionary relief

To restore the Plaintiff to their pre-contractual position and often applies when a contract is voided, unenforceable, or breached

To secure rights to a book, screenplay, graphic novel, or treatment before comitting to the full purchase price

Why producers use option contracts