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Entertainment Law Insider's Tips
Frequently Asked Questions
By Attorney Mark Litwak
Insider's Tips FAQ Pages
Ref 374. Dear Sir, My daughter wants to record an old song but we have no Idea how to go about the legal parts of doing so, how do you get permission to do so? Rhonda
Response to Ref 374. You should contact a music attorney and ask about the procedure for recording a "cover" of an existing song. This can be done for the statutory rate, or you may be able to negotiate a lower rate.
Mark Litwak
Ref 375. This topic came up in a classroom discussion. To settle some un-resolved points of tention could you please answer the following questions. We are not producers, just students curious about legal definations. Pornography (adult entertainment industry) must have a set of laws and procedures that govern it. Can you recommend any of those legal sources? As porn is considered obscene material, would it even qualify for any copyright protection? Thanks.
Response to Ref 375. The First Amendment does not protect obscene works. The difficulty that judges confront is understanding and defining what is obscene. The most useful definition is the three part test set forth in Miller v California:
(1) Whether the average person applying contemporary community standards would find the work taken as a whole appeals to prurient interest.
(2) Whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law.
(3) Whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.
Mark Litwak
Ref 376.
I am a Canadian citizen living and working in the United States on a TN-1 visa. I am wondering what kind of visa I need in order to become a full-time standup comedian (I already perform regularly on a pro bono basis). Also, would I need a company/agency to sponsor me in order to obtain such a visa?
Response to Ref 376. You need to contact an Immigration Lawyer.
Mark Litwak
Ref 377.
I am currently an undergraduate film/business major hoping to continue my education in entertainment law. Which law schools are strong in entertainment law? I have searched through rankings catalogues and found that little attention is paid to this type of program.
Response to Ref 377. Law schools don't specialize in entertainment law per se. However, certainly such law schools as NYU, USC and UCLA and Loyola have numerous entertainment related courses. Some schools have a course called "Entertainment Law," others may teach similar material under the rubric of intellectual property, copyright or trademarks. Of course basic contract law and torts are important in the entertainment law practice and these courses are taught in most law schools.
Mark Litwak
Ref 378.
I am currently a 1L at Cumberland School of Law in Birmingham, AL. My desire is to work in California, in the Entertainment Law Industry. I have no contacts in CA. My professors have said that I should attend a CA law school as a visiting student. If you think this is a good idea, please give me your opinion of the best school to visit. Also, I will be in CA for the Christmas holidays. Should I try to interview at some of the law firms, and if so, which ones do you recommend? I know these questions may seem elementary, but there is not a lot of information (from a law school point of view) about which schools and firms are considered the best in the entertainment law field.
Response to Ref 378. You should try to get your foot in the door anyway you can. You could consider becoming a visiting student at Pepperdine, Loyola, Southwestern, UCLA or USC law schools, all of which are in the L.A. area. Yes, you should try to intern or interview at various entertainment law firms.
Mark Litwak
Ref 380.
Can I secure legal copywrite protection of a movie title (and thus be in a position to sell such title) by attaching it to a low budget video production, the express function being simply to secure such protection for purposes of selling the title?
Response to Ref 380. One cannot copyright a title. In some instances titles may be protected under the laws of unfair competition or trademark law.
Mark Litwak
Ref 381. Some months ago I had an idea for a treatment. I invited a friend to develop the treatment with me. Later on I submitted the treatment to the copyright office and (silly me) included his name. Since then we have parted ways. I would like to request that he release his name from the copyright. How do I go about doing that? Is this a straightforward procedure?
Response to Ref 381. If your friend agrees to take his name off the material, you can simply file an amendment with the copyright office to change the information in the original filling. If he contests your claim to sole copyright ownership, the dispute will have to be resolved in court or arbitration regardless of what has been registered in the Copyright Office.
Mark Litwak
Ref 382. A Clip Clearance Agency does what exactly? i.e. magazine photos, music videos, film, tv, commercials? Is it a one stop place or a different agency for each need? Can you name any please?
Response to Ref 382> Clip clearance agency assists a producer in obtaining rights to clips of film footage for incorporation in another work. Some agencies also clear music. Try the Copyright ClearingHouse (818) 558-3480, or Suzzanne Vaughan and Associates (310) 556-2730.
Mark Litwak
Ref 383. Do I have the legal right to have staged a semi-fictional biographical musial on Marilyn Monroe that I have written?
I understand Elizabeth Taylor lost her suit against NBC for doing an uinauthorized movie on her because she is a Public Figure. I presume my semi-fictional work on Marilyn Monroe would fall into the same category.
Response to Ref 383
Generally speaking, under the First Amendment, you have a right to speak or write about other people, including celebrities. In dealing with celebrities and other public figures, much of their life is in the public domain. Consequently, it is more difficult for them to bring an action for invasion of privacy. Similarly, the Supreme Court has held that public figures have to show actual malice in order to recover for defamation. This makes it more difficult for a public figure to recover even if their reputation has been harmed. Nevertheless, it is possible for a public figure to recover if their reputation has been harmed or their privacy has been invaded.
In the case of Marilyn Monroe, you do not have much to worry about in regard to defamation or invasion of privacy since she is deceased. The right to bring a claim for defamation or invasion of privacy is personal, and it ceases to exist when the subject dies. However, her estate may have inherited certain rights of publicity. This would not preclude you from making a musical about Marilyn Monroe, but might prevent you from merchandising her image on products. Also, if you do a musical about Marilyn Monroe, you may have to clear the rights to the music.
Mark Litwak
Ref 385. I am a screenwriter who has written five screenplays to date. I am interested in starting a production company with a partner using one of the screenplays for the project. Question is, where would the best place be to look for financing? Also, would looking for financing be the first step or are there other matters I should be looking into first?
Response to Ref 385:
Probably the best place to look for financing would be family and friends. Typically, filmmakers get their start with backing from family and friends, not from a studio. I have just written an article on how to attract capital to a film project, which appears in the most recent issue of Movie Maker Magazine (December 1999).
Mark Litwak
Ref 386.
I own a small business and have hired a local writer to produce some radio spots for me. The spots he wrote are funny, but would require one of the local actors to impersonate a famous, non-living celebrity without ever using the celebrity's name. The voice is distinctive enough that listeners would recognize it, even though the celebrity has been dead for over 20 years. The character acts as an announcer for my store. The writer says there is no problem from a legal standpoint, but I don't want to start a legal battle that I can't afford to be in. Is he right?
Response to Ref 386:
This is a complicated question, and the answer will depend upon which state's law applies and the facts and circumstances involved. If this famous non-living celebrity was domiciled in a state whose law provided that the right of publicity would descend to one's heirs, then the heirs might have a cause of action against a commercial use of that celebrity's name.
Mark Litwak
Ref 387. Can an actor in a movie expositionally say something that can be construed as negative about a sports team or team members like " the Dallas Cowboys suck" or "Joe Montanna can't throw the ball anymore" or the New York Yankees are a piece of SH_T!!" If this occurrs in a movie would the producer, director, investors be liable or is this allowed since these are public figures and organizations?
Response to Ref 387: Such general derogatory comments will not be actionable unless you name a specific individual or a small group of identifiable people. The defamatory remark will not be considered "of and concerning" a large group, or a unidentified member of a large group. Moreover, it is doubtful that any listener would think that the person making such statements was expressing anything other than an opinion, which is protected under the First Amendment.
Mark Litwak
Ref 388. I have a small video production studio. I recently shot, edited and greatly improved with graphics five training and sales presentation for a large Multi-level Company. They are making thousands of copies for their Representatives but have taken out my trailer Company logo. Can they rightfully do that? What are my rights for credit and where can I get more specific info in this field?
Response to Ref 388:
You need to look at your contract with this large multi-level company. If you are guaranteed credit, then they are in breach of their agreement with you. There are cases in which the denial of credit to an actor, for example, was deemed to be a form of unfair competition.
Mark Litwak
Ref 390. More about submission releases: It seems to me that writers should refuse to sign them. Aren't they just a license to steal? Writers represented by agents who have "relationships" with producers don't ever sign releases, do they? Granted, a writer seeking to obtain consideration of unsolicited material would get nowhere if producers refuse to read material without a release. However, I've seen some very suspect language in several release forms. Couldn't someone come up with a release form that has language which protects the author from theft and the producer from crackpot litigation?
Response to Ref 390:
I agree with you that submission releases have very onerous terms. I would recommend that you not sign them if you can avoid it. Unfortunately, many studios and producers will insist upon a submission release before reading material submitted from someone with whom they do not have a pre-existing relationship, or who is not represented by an agency. It is not a matter of whether a better release could be drafted, it is a question of whether or not the recipient is willing to accept material on any other basis.
Mark Litwak
Ref 391. I have written a screenplay and am writing a novel on the same subject. My problem is I am using characters in both the novel and screenplay that were public figures such as President John Kennedy and Jacqueline Kennedy. The story line, set in 1963, centers around the kidnapping of the Jacqueline and her rescue. Can I use their real names in the script and novel? This would not be a matter of them just passing through so to speak but the characters would play a decent part. Also there is nothing derogatory just a "it could have happened" situation.
Response to Ref 391:
Generally speaking, you can take a certain amount of literary license even incorporating real people in a fictional story. If the individuals are deceased, there is much less to be concerned about, because actions for defamation and invasion of privacy cannot be brought after the death of the individual. You should have an entertainment attorney review the script before you go into production.
Mark Litwak
Ref 392. I am about to recive an "offer" from a production company of a "big" hollywood director (two $100 mill plus films to his credit). This director has a first look deal at a major studio and wants me to sign an option before presenting the script to the studio. Although I have not officially received the offer my producing partner has let me know they want go with a free option (maybe $1) for who knows how long. How legal is this? How prevalent is this? As this would be my first sale should I take it? What would you counsel your client? Also, the director (and would be producer) gave the script to a young director (with a 2 pic deal at a major studio) and he wants to do it. He and I met and want to work with him but I'm not sure if the prodcer is right (we meet for the first time tonite). Can I not legally go off with the director and set the pcture up at his studio deal? DOes this give me any power in negotiation? What is the industry standard for options (periods, low end $ etc.)?
Response to Ref 392:
In my opinion, it is generally a bad idea to give a free option. The buyer will often value the option for exactly what they paid for it. In other words, if they have not invested any money, they do not have much at stake. They are taking your property off the market and they are not assuming any risk themselves. Nevertheless, I am aware that in many instances, producers do take options for little or no money. These can be enforceable and binding agreements. If this producer has the relationships that can get your project made, that is certainly something of great value to you. Assuming there is no agreement between you and the producer, I do not see how you are precluded from working with the director. However, the producer may contend that there is an express or implied agreement that he would produce any project that he brought to this director.
Mark Litwak
Ref 393. I have co-developed a television series that has received very strong interest from several actors and organizations. They have stated that I need to find a "Show Runner" immediately for the project. The concept is truly unique and is based on fact with the potential to a never ending always "fresh" flow of story lines.
Can you offer any direction in finding and securing a Show Runner?
Response to Ref 393:
The Show Runner is the person responsible on a weekly basis for producing the show. It would be best if you can find someone who has experience as a show runner. Of course, many of the top people are highly sought after and often have their hands full running existing shows. Most television programs today are financed by divisions of the major studios or by the networks themselves. They may have a favorite show runner that they would prefer to use. You can ask them for their recommendations.
Mark Litwak
Ref 394. I've been asked to join an amateur band to play sing along music (mostly old favorites) at private parties, old folks homes, etc. They are not compensated for their peformances, but I'm concerned about copyright infringement. Does the band or the individual musicians & singers need performance licenses?
Response to Ref 394:
If you publicly perform music then you infringe the copyright owner's rights. If any of your venues have secured licenses from ASCAP, BMI or other public performance societies that will permit them to have music publicly performed on their premises.
Mark Litwak
Ref 396. A personal friend and I (50/50 partnership) started a record label over a year ago. The other
partner, for vengeful reasons, does not want to be in the partnership anymore. He also wants to take songs
that were created by him (tracks) and I (lyrics), and use them under another independent label created by him or have me
give up rights to the label already established. Can he actually do this & what are my rights as a partner?
Response to Ref 396:
You need to look to your partnership agreement to determine the respective rights and obligations of the partners. The partnership agreement may also provide for resolution of any disputes.
Mark Litwak
Ref 397. I want to integrate small sections (one to five second) of historic films of all types into an independantly produced film. They would be faintly multiple-exposed with my live action footage. How can I do this legally? Is it anything like quotations, footnotes/end notes in literature?
Response to Ref 397:
Assuming the work is copyrighted, you are precluded from incorporating it in your film unless it falls within the Fair Use Doctrine. The problem with the Fair Use Doctrine is that it is a big gray area. There are no bright yellow lines to tell you how much you can use of another work. It would be best for you to license any material you want to use or obtain material in the public domain.
Mark Litwak
Ref 398.
Our production company is based out of Ontario, Canada. We have just recently started development on a narrative film, the screenplay adapted from a book by an American living in Florida. The author of the book is working with us on the project. There are American investors interested presently. What is the best way to structure the picture from a legal stand point (i.e. Sole purpose company, limited partnership, shares, etc.) so our Canadian company has greatest creative control?
Response to Ref 398:
The most advantageous way to structure the picture from a legal point of view will depend upon the facts and circumstances of your particular situation. One cannot generalize. Nevertheless, in many instances, producers set up limited liability companies. This is a very flexible vehicle and it allows all the members to have limited liability. From a tax point of view, income passes through the LLC so that it is not taxed at the company level (other than the minimum tax in some states). Keep in mind that if you are raising money from private investors, you also need to comply with state and federal security laws. Generally speaking, you are required to make full disclosure of all the risks involved in the endeavor before the investor invests. In order to comply with American law, you should retain an experienced securities and entertainment attorney to draft a private placement memorandum (PPM).
Mark Litwak
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