The Law Offices of Mark Litwak and Associates has offered its clients high quality legal and business solutions for more than thirty years. We serve a global clientele in transactions involving financing, producing, and distributing motion picture, television, and new media projects. We represent numerous writers, directors, producers and production companies.
The firm has served as production counsel for numerous television and new media programs and series produced by independent filmmakers as well as productions made for major studios, networks, and content providers including Netflix, Warner Bros., 2oth Century Fox, Cartoon Network, HBO, IFC, Yahoo!, Disney/ABC, Hulu, Paramount, Seeso/NBC, Comedy Central, Verizon, YouTube, Facebook and MTV. See IMDB.com.
Mark is the author of six books, numerous articles and
has been cited as an authority by many scholarly publications. He has been an adjunct professor at U.S.C. law school since 2013 teaching entertainment law. He previously taught at U.C.L.A. for more than twenty years. He also has worked as an expert witness and serves as an IFTA arbitrator. The firm has won millions of dollars in damages for filmmakers who have been defrauded by distributors.
Effective September 1, 2020 our new address is:
Law Offices of Mark Litwak & Associates
201 Santa Monica Blvd., Suite 300
Santa Monica, CA 90401
Phone: (310) 859-9595
E Mail: Law3@marklitwak.com
Mark Litwak has been named to the Southern California Super Lawyers list as one of the top attorneys in Southern California for 2023. No more than 5 percent of the lawyers in the state are selected to be designated Super Lawyers. This is the 14th year Mark has been honored with this award which is based on anonymous peer evaluations by other lawyers.
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70
practice areas who have attained a high degree of peer
recognition and professional achievement. The annual selections are made using a rigorous multi‐phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.
The Super Lawyers lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, go to superlawyers.com or click Here.
Mark has for more than a decade has received an AV preeminent peer review rating from Martindale-Hubbell. This is the highest rating given a lawyer and is indicator of a lawyer's high ethical standards and professional ability, generated from evaluations of lawyers by other members of the bar and the judiciary in the United States and Canada.
Podcast: FILM MAKING PITFALLS IN DEAL-MAKING AND DISTRIBUTION
Listen to Cinema of Change Podcast interview of Mark Litwak
MexFusion FZ, LLC v. Kevuru Games Ltd.
We recently won an arbitration award against a video game producer for having failed to deliver a video-game on time and on budget. We represented MexFusion FZ, LLC in its claim against Kevuru Games Ltd. The Arbitration ended with a monetary award of $793,644.00 for our client including reimbursement of attorney fees of $34,980.00, interest and costs of the arbitration.
Aletheia Films: Mark Litwak represented Claimant Aletheia Films (Robert Rippberger) in an arbitration against Respondent Raging Nations Films whose principal is Dale Resteghini. The parties had agreed to collaborate in the production of a pilot called “Cracka.” Claimant asserted that Raging Nations had deviated from the production plan, refused to reimburse Claimant its expenses, failed to provide a screen credit, denied Claimant its equity interest and tried to remove it from the project.
After four days of hearings, Claimant was determined to be the prevailing party. Respondent counter claim was dismissed. The arbitrator found: “Raging Nation tried to cut Aletheia Films out of the Cracka Project after production and tried to keep Aletheia from receiving any benefits under the signed MOU contract.” The arbitrator restored all of Claimant’s rights under the agreement including its copyright interest and its profit participation.
Claimant was awarded compensatory damages of $16,742, costs of $11,257.91, and reimbursement of attorney fees of $75,579.35 for a total award of $103,579.26.
Sydon GMBH: We are pleased to have won a $43,811.94 award for our producer client Sydon GMBH against Los Angles based sales agent Spotlight Pictures, Inc. Sydon had entered into a distribution agreement with Spotlight for distribution of its feature film Falsely Accused. Mark Litwak represented Sydon. The arbitrator found that Spotlight failed to communicate with Sydon after the notice of default and once the third quarter 2016 report was issued showing a payment due, Spotlight represented that the payment would be paid but failed to do so. The award included interest and reimbursement of Claimant attorney fees.
Employing Minors and Ensuring their Contracts are Enforceable
by Diana Budninskiy, Esq.
In California, a contract with a minor (anyone under the age of 18) can generally be disaffirmed by the minor. A disaffirmed contract is not enforceable. This law is meant to prevent adults from taking advantage of minors and is based on the belief that minors are easily exploitable because they may not fully understand a contract they have signed. Needless to say, a contract invalidated by a child actor could jeopardize distribution of the motion picture in which the minor appears. click to read entire article
CREATIVE ACCOUNTING REVISITED
Several recent cases have provided insight into creative accounting disputes and the rights of profit participants to contest inaccurate reporting. One case concerns the Columbo television series, a show in the 1970s created by William Link and Richard Levinson. The program starred Peter Falk playing a disheveled bumbling detective who outwits the bad guys who always underestimate him. The series began in 1971 and was a hit both in the United States and abroad having been broadcast in forty-four countries. The heirs of the creators say it took 45 years for them to receive their first accounting report for the series. The statement was issued in November 2016 along with a check for $2.3 million. In 2017, they sued Universal claiming they were due much more.
click to read entire article
Areas of Practice
□ Entertainment Law
□ Contract Law
□ Copyright and Clearances
□ Trademark and Unfair Competition
□ Business Transactions and Formation
□ Motion Picture Finance and Distribution
□ Television and Film Production
□ Book and New Media publishing
□ Defamation, Rights of Privacy and Publicity
□ Intellectual Property acquisition and licensing
□ Court confirmation of contracts with minors
Expert Witness Services
Mark Litwak has served as an expert witness for both
plaintiffs and defendants in state and federal courts, as well as in arbitration. He is an authority on customs and
practices in the movie industry, entertainment law, deal
making, economic damages, chain of title, and the
financing and distribution of films.
Mark has published a new article for LexisNexis legal research service that provides a comprehensive look at film financing.
Mark cited by IndieWire on Top Gun lawsuit.
Mark quoted in Newsweek about Johnny Depp v. Amber Heard defamation trial.
Mark quoted in Variety on trademark claim against indie film India Sweets and Spices.
Texas Supreme Court reverses lower courts and agrees with expert opinion offered by Mark Litwak who was retained by the Attorney General of Texas to testify on behalf of the Texas Comptroller in its suit against AMC theaters. Read Texas v. AMC.
Mark interviewed on Art of Film Funding podcast about AB 5 which is the new law regarding classification of employees and independent contractors.
Mark quoted in IndieWire about Apple's acquisition of The Banker after allegations of sexual abuse.
Mark quoted in The Economist about ownership of ideas and plots.
Mark quoted in the New York Post in article about the Rev. Al Sharpton and a deal he made with his non-profit for his life story rights. You can read the article here.
We have enhanced our store and now if you purchase contract templates from the books we sell, you can download them immediately. You no longer have to wait for a CD-R to arrive by mail. The contracts are in Word format and fully editable. Store
The 4th Edition is Available
The Fourth Edition updates the existing text and adds more than 100 pages of new material covering changes occurring in the movie industry such as the growth of new media outlets like Netflix and You Tube. Purchase your copy today!
Why You Need A Production Attorney
Many independent low budget filmmakers try to conserve their funds by not retaining a production attorney to handle their contracts and releases. They often rely on forms from prior productions and assume that these agreements will suffice to secure all the rights they need. Sometimes they are lucky, and the forms are sufficient. Most of the time, however, the forms are not suited for the circumstances and are deficient. Actor agreements, for example, vary significantly. There are different templates for union and non-union deals. There are diverse terms for principal players, day players and extras. Moreover, releases may be needed for non-actors in the background or interview subjects for a documentary. If a producer does not use the proper agreement, she may belatedly discover that they have not adequately secured rights to their film in a manner that is acceptable to distributors.
Filmmakers may not realize that today virtually all distributors in the United States require Errors and Omissions (E & O) Insurance before they will release a motion picture. A producer can create a fabulous award-winning movie and find themselves pursued by multiple distributors bidding to acquire their films. But if the producer cannot secure E & O insurance, no deal will be made. Almost all distributors require this insurance. This includes not only distributors that release films in theaters, but also smaller home video companies and aggregators who license motion pictures to digital platforms like Amazon or iTunes.
When filmmakers apply for E & O Insurance, they will see a line on the application asking for the name of their production attorney and his/her phone number. That is because insurance companies want your premium dollar but don’t want to take on any unnecessary risk. They want to make sure your contracts have fully secured all necessary rights. They will often call the production attorney to ensure that she understands the insurers clearance requirements and has made sure that the production has complied.
E & O Insurance, sometimes referred to as Filmmaker Malpractice Insurance, is a type of insurance that protects a filmmaker (and distributors) if the filmmaker negligently fails to secure rights to a film. It protects against copyright and trademark suits for infringement, as well as action claiming defamation, invasion of privacy, violation of rights of publicity and other violations of intellectual property. If a filmmaker has violated a third-party’s right, such as using music that has not been properly licensed, not only will the filmmaker be liable but everyone in the chain of distribution may be liable as well. That means sales agents, distributors, exhibitors and retailers can each be sued even if they had no role in producing the movie. A theater owner, for example, does not have a good defense by blaming the filmmaker for his failure to license music on the soundtrack. The filmmaker may be the individual who dropped the ball, but everyone who has duplicated or exhibited the film is also liable. Statutory damages for copyright infringement can be as much as $150,000 for a single infringement of one work.
The distribution contract will usually provide that if a filmmaker fails to fully secure all rights, and the distributor is sued, that the filmmaker must indemnify (reimburse) the distributor its legal fees and any award rendered against it. But distributors understand that most independent filmmakers have limited resources, and after a film has been completed, they are often broke. The indemnity may not be worth much practically speaking. That is why distributors want the filmmaker to add them as additional insureds under their E & O insurance policy to ensure that the insurance company assumes any liability and pays attorney fees to defend against a suit.
The Law Offices of Mark Litwak & Associates provides affordable legal services for many independent low budget filmmakers. Contact us if you would like to discuss your production legal needs.
What’s in the Public Domain
Many people are confused about which works are in the public domain and which are not. Materials protected by copyright, such as books, articles, photos, videos and artwork, enter the public domain when their copyright term expires. At that time, material previously protected is free to use without seeking any permission.
click to read the entire article