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1. Film Industry 2. TV Industry 3. Music Industry 4. (Video Game Industry) 5. (Censorship) 6. Intellectual Property Story snippets that become source of piece CR law protects the expression of the idea in its fully realized version Trademarks are symbols/words used to designate a particular product a. The Law of Ideas i. Either pitched orally or submitted via written treatment [a short summary of story, plotlines and other important details] ii. Book proposals iii. Music pitches rare 1. Legally fall between no and full legal protection 2. Restricts the free use of ideas by others and delays the benefit to society of having free access to it 3. Grants creator the right to get paid from those who benefit 4. Purpose of $ is to reward the creator a. May be protected by either express or implied K i. Expressin words the terms of $ for disclosure & use of idea ii. Impliedconduct that indicates Ks existence iv. CR fictional characters are the most difficult to protect 1. To est conditions of an implied K, must be some semblance of confidentiality in the rela a. Disclosure of ideas in setting b. Must be worthy of protection v. NY Law 1. Pre 2000property interest in an idea to make it protectable a. To obtain a property interest, the idea must be i. Novel, original, and unique 2. Post 2000Novelty to the buyer standard adopted a. While a work may be nonorig or nonnovel generally, it may have substantial value to a particular buyer who is unaware of it and will enter into a K to acquire and exploit it

b. Much lower standard & easier to prove c. Thus, finding of novelty provides sufficient consideration to support K claims b. Copyright i. Old ruleStatute of Anne protected authors works for 14 years until it fell into public domain ii. US CR Act of 1790gave auths an initial 14 years with option to renew for another 14 iii. NOWlifetime of individual plus 70 years 1. Joint ownersCR expires 70 years after the death of the last surviving 2. Corporate/anonymous/pseudononymous and work for hires get 95 years of protection, flat. iv. Copyright RequirementsTHREE conjunctive: 1. CRable subject matter 2. Fixation in a tangible medium of expression 3. Originated with or created by the author a. Third prong is problematic i. Originality can have dual meanings re derivative works ii. Issuewhether the newcomer contributed anything new or novel to the first work? 1. Derivative works: higher originality standard imposed, requiring substantial differences between the original and derivative to make the latter CRable. v. Copyright Formalities 1. Requires notice that ownership is claimed in the work and 2. Registering the work with the CR office and 3. To give notice to the world by including on the work: a. Copyright (c), name, year 4. Pre 1989must give notice or it falls into public domain a. 5 years to cure by republishing with notice 5. Post 1989CR notice optional a. Automatically protected whether authors place a notice on them b. But incentives if you do:

i. Eliminate the innocent infringer defense by: fill out CR forms, pay fee, and deposit 2 copies of works best editions ii. Forms setup in categories 1. Form txbooks 2. Form paTV/film 3. Form srsounds 6. Registration optional, BUT is a prerequisite to bring suit in US courts a. Digital Millennium CR Act 1998foreign works are exempt from this requirement 7. Registration is PRIMA FACIE evidence that the author owns the work a. Depositing 2 copies also no longer a prereq, but u can get fined if the Library of Congress requests the work and u dont send it i. Fine will amount to how much it would cost them to buy 2 copies vi. Copyright Ownership the person who actually created it or: 1. Joint worksa work prepared by 2+ authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole a. Versus a collective workpermits auth to own his individual contribution: contributions constituting sep and independent works in themselves that are assembled in a collective whole 2. Works for Hire-- 101 of the US CR Statute a. A work prepared by an employee within the scope of employment OR b. A work specially ordered/commissioned for use as a contribution to a collective work....if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire i. Filmonce a screenwriter get credit and can CR the script individually, once they sell it their work becomes inc and becomes a w4h studio will CR the film in its corp name vii. Bundle of RightsCR holder entitled to exclusive rights under 106, subject to limitations in 107-121

1. Copy or Reproduce 2. Adapt or prepare derivatives 3. Distribute/transfer 4. Public perform 5. Public display, 6. Audio-digitally transmit a. Transfer & Assignment Rights i. In whole or in part by conveyance or law ii. Bequethed by will or inherited iii. Bundle can be tR individually or together b. Termination Right except for w4h: i. Grants, non/exclusive grant of tR or license if subject to termination made by: 1. Author or majority of joint 2. Surviving auths spouse/c/gc ii. May be effected at anytime during a 5 year period beginning at the end of 35 years from the date of grant execution, whichever is earlier: 1. Grant cover publication, the period begins at the end of 35 years from date of publication or 2. 40 years from the date of execution of the grant iii. To effect termination, u must serve advance notice in writing signed by owners/agents 1. Reversion of rights to the auths or whoever owns the termination int c. Performance Rights d. Moral Rights i. US only recognizes 2 of the 6 1. Right to Auth 2. Right of Integrity ii. Otherwise, US has its own laws protecting: 1. Right to Createno specific enforcement of personal service contracts 2. Libel laws 3. Lanham Act

a. Monty Python case: prevents misrep that injure Ps biz or personal rep viii. Copyright Infringement & Remedies 1. 501(a) anyone who violates any of the exclu rts of the CR owner is an infringerP must prove: a. P owns the CR work and b. D copied it or took another exclusive right of P i. Theft or plagarism: unauth taking ii. Unauth taking can be proven with direct or circumstantial evidence 1. Show that D had access and theres substantial similarity of ideas and expression 2. Test: D could only have produced his work by copying Ps a. Film Infringement b. TV Infringement c. Music Infringement d. Publishing Infringement c. Contributory infringement i. Secondary infringer must know or have reason to know of direct infringement 1. Knowledge a. Actual b. Constructive d. Direct Infringement i. Material contributions e. A private partys discontinuation of unlawful conduct doesnt make the dispute moot ix. Defenses 1. Fair Usebalancing test of FOUR factors: a. Purpose an character of usecommercial or nonprofit b. Nature of the CR work c. Amt and substantiality of portion used in rela to the CR work as a whole and d. Effect of use upon the potential market for or value of the CR work

i. Parodies: may be considered fair so long as the parodist took no more than necessary to conjure up & critique the original 1. Parody is OK if unlikely to be any market confusion between the two workds or any negative market impact 2. Innocent Infringer Defense a. Limited by 402(d): When CR notice appears in the published work to which D had access, then no defense applies to mitigate actual or statutory damages i. Ignorance of the law also not a defense x. Remedies 1. Temporary/Final Injunctions 2. Impound & Destroy 3. P may receive damages and any profits that accrued to D a. Profits can also be apportioned to account for the extent of Ps work in Ds final product 4. P may elect to get statuory damages instead of proving actual damages a. Only between $750 30,000 b. If ingringement wilfullaward up to $150k i. Can also arise to enhanced statutory damages and award a ratio 5. Successful P can get costs and attorneys fees, but @ CTs discretion 6. Criminal Sanctions for works > $1000 a. Fines up to $250k or 5 years b. Seized & forfeiture c. Trademarks & Merchandising i. Word, design, used by a manu to ID its goods, can also describe a good ii. Identifies the source, guarantee quality, advertise the manu, attract customers 1. Service/certification marks 2. Collective marks 3. Trade names iii. Notice of TM claim over a good 1. Unregistered at federal level uses common law trademark like TM or SM

2. Registered at federal level or Registered US Patent and Trademark Office or Reg. US Pat. And TM. Off. 3. Not mandatory, but nec to get damages and eliminate innocent infringer defense a. Elvis case: parody is not a defense for TM infringement, instead its a factor to determine whether there is likelihood of infringmentlook at Ds attempt to profit from Ps good will associated with the name & TM i. Uses likely to cause consumer confusion and lead them to think P is the official sponsor 7. Representing Entertainers a. Agentssolicit & obtain employment/materials i. CA cap: 10% ii. NY & others: 15% b. Managers i. Film pick scripts ii. Music everything iii. 5-25% of income c. Lawyers criminal & civil matters d. Unions negotiate minimum fees & working conditions i. CAK between an unlicensed agent & an artist are VOID 1. Agents duties to procure employment are distinct from managers responsibilities to advise & direct ii. NY 1. Incidental procurement of employment iii. Exemption for Music 1. CA iv. Severing bad clauses from an otherwise legal K to provide personal mgmt services 1. Blasi case: 8. Credits & Compensation a. Credits i. Film Credits 1. Story by developed the story but didnt write the screenplay 2. Written by screenwriters and can be more than 1

a. & means joint work b. and means authors contributed to the script after the first author finalized the original 3. Billing actors name placement before or after film title 4. Unions have a say a. SAG negotiates minimum credit requirements for actors who can, by K, negotiate for size & placement b. WGA ditto, and when several writers contribute to the final movie, WGA arbitrates to determine who is entitled to receive the writing credit i. Done before film releases, but lawsuit could happen after release esp if the film was a hit 5. Unworthy filmstalent wants to limit credit a. Stephen King case: The Lawnmower Man was a flop and P arg possessory credit was a misrep bc film was 180 to his short story and that based upon credit was misleading i. Lanham Act possessory credit was false on its face, but based upon credit was OK bc the core of the short story was the films basis ii. TV Credits iii. Music Credits 1. A co-auth claimant bears the burden of est that each of the putative co authors a. Made independently copyrightable contrib. to the work and b. Fully intended to become coauth i. Authors dont have to work in concert or even know eachotherits enough that they mean their contributions to be complementary in the sense that theyre to be embodied in a single work to be performed as such b. Compensation i. Above the title actors compensation based on a cut of box office gross receipts ii. Producers & Studio execs straight lining practices is a breach, cant allocate the same share of the licensing fee to every movie in the package for TV & cable rebroadcast regardless of its value to the licensee. 1. Film & TV

a. Pay or Play: actors with clout and are in demand i. If for any reason the project is cancelled, clause requires producers/studios to compensate the artists or provide a comparable substitute 1. Since actors turn down roles in order to commit to a project b. Net Compensation: THREE TYPES i. Guaranteed ii. Deferred iii. Contingent 1. Guaranteed & Deferred easier to calculate a. Guaranteedfixed and must be paid according to K schedule b. Deferreddelayed until the happening of a specified event c. Contingentcan be based upon gross or net revenues i. Gross is paid based upon the revenue generated at box office will receive a % of all box office and other revenues ii. Net is paid after a number of subtractionssometimes leaving the film/show in a negative balance iii. Thus, talent rarely receives anything additional in net participation iv. Film Accounting Box office revenue --Distribution fee --Distribution expenses --Gross Participation payouts =subtotal --production costs --direct overhead charge (x%)

--Interest =final balance (usually a negative) c. Net profits AKA backend profits i. Batman case : Just bc u made a bad deal and other people made millions and u got nothing is irrelevant the K may have been unfair, but fairness doesnt determine unconscionability ii. Now also called adjusted gross profits or modified adjusted gross iii. Music 1. Composers royalties off of their CR credits 2. Performers flat fee, % of box revenues, or combination 3. Merchandising TM the artist/band name and putting it on products 4. Record K get as much up front as u can a. Royalty paymentspercentage of sales rev look like nets above i. Each K has a laundry list of deductions that must be negotiated 9. Entertainment Ks a. Film i. Insuranceguarantee that the picture will be completed 1. Death of an actor excuses performance of K a. It was up to the parties to include a provision contingent upon drug use, etc ii. Talent 1. Actorterms must include: a. Term of the engagement b. Renumeration c. Expense payments d. Actors services and obligations 2. Writer a. Term of engagement b. Credits c. Up front $ d. Sequels e. Performance standards

f.

Ownership rights

3. Director a. Working title b. Term of engagement c. Services to be rendered i. Preproduction ii. Production iii. Post production d. Pay or play provision b. TV i. No one can give away more rights than he has c. Music d. Publishing 10. Celebrity Status a. RightsAre protected by State laws and can be of FOUR distinct torts i. Privacy 1. Intrusion upon seclusion or solitude a. Ps claim must allege conduct demonstrating an intentional intrusion upon the seclusion of their private concerns which was substantial and highly offensive to a reasonable person and must have sufficient facts establishing that the info disclosed wouldve caused mental suffering, shame, humiliation to person of ordinary sensibilities. 2. Pubic disclosure of embarrassing private facts 3. Publicity placing P in a false light in the public eye and 4. expires upon death and cannot be evoked on behalf of the deceased by his survivors ii. Publicity Rights 1. Appropriation for Ds advantage of Ps name and likeness a. When someone else profits from from talents name/image/voice, and celeb loses some control over his image [particularly when the use presents false material] b. Protects property interests: i. State Statutes 1. CA Civil Code Sec 3344(a)Publicity Rights

a. 1984: Prohibits any unauth use on or in products/merchandise/goods of celebs name/likeness b. Anyone who knowingly uses persons name, voice, signature, photo or likeness in any manner or in said products for purposes of advertising or soliciting purchases without celebs prior consent c. Shall be liable for any damages sustained by celeb injured as a result ii. Duration of the right to publicity depends on State Statute 1. NY: expires upon death 2. CA: 50 years following celebs last curtain call iii. Common Law 1. Johnny Carson case 2. Vanna White case: the right of publicity extends to the name, likeness, voice, signature AND anything else that evokes the persons identity iv. Federal Unfair Competition Act c. Delicate balance between right of publicity and 1st ame i. Tiger Woods case: a persons image or likeness cannot function as a trademark 1. Identity is protected, thus your birthname is an integral elementcannot be bestowed for commercial purposes and deemed abandoned when celeb stops using it iii. Defamation

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5/8/2013 9:58:00 AM