Screenwriters should annotate their scripts to document the source of their work. A careful annotation will help a screenwriter defend against defamation and invasion of privacy lawsuits by showing that the writer acted carefully. Recall that when a public figure or public official sues for defamation they must prove that the defendant acted with "actual malice." Annotation shall specify the source of all script elements except those elements that are completely fictional and arise wholly from the writer’s imagination. Script elements include characters, events, settings and dialogue. Annotations are typically written in the margin of the script, or they are in the form of footnotes or endnotes to the text.
A continuity script is a script that conforms to the final cut of a film. Filmmakers will need a continuity script as a delivery item because for foreign sales in countries where English is not the primary language. It is needed for the foreign buyer to create a foreign language version which will either be a sub-titled version or a dubbed version. An annotated script is just a continuity script with notes on it and it will also help your lawyer clear the film and write a clearance letter which is often needed to obtain Errors and Omissions Insurance. You can create a continuity script yourself or hire a company to create it for you. If you just take the last draft of your script and conform it to the final cut, you will have a continuity script.
Annotations should include the following information:
1. CHARACTERS: For each character note the following information:
(a) Whether the character is a real person, a fictional or a composite character.
(b) For real characters, whether the actual person is living or dead.
(c) For composite characters, the name(s) of actual person(s) on whom the composite character is based, and what traits can be attributed to the real person(s).
2. SCENES: Note whether each script element portrays fact or fiction.
(a) If fact or an inference from fact, describe the source material for script elements, including the following:
(i) For books: title, author, publisher and page(s)
(ii) For newspaper or magazine articles: title, author, publisher, date and page.
(iii) For materials obtained from the Internet: author, title of article, web site address. If material has been repurposed from another medium, note the title, author, publication etc. of the underlying work.
(iv) For materials based on radio or television interviews or programs: date, time of broadcast, broadcast station or source, interviewer, program name.
(v) For interviews: Name of subject, whether notes or tapes exist, reference to tape or transcript page number.
(vi) For trial or deposition transcripts: the court or other forum, date, person testifying, and transcript page number.
(vii) To the extent possible, multiple sources should be identified for each script element.
(b) If a partly fact and partly fiction, indicate which portions are fact and which are fiction. For factual parts, describe source material as specified in Paragraph 2(a) above.
(a) Copies of reference materials referred to in annotations should be kept for at least five years after the film or program has been released. Materials should be cross-indexed by script page and scene numbers.
(b) If margin annotations are coded to avoid repeated lengthy references, a key to such coding should be provided.
(c) If a Writer's Guild member is asked to annotate a script, this request must be made at the outset of the assignment.
1) DERIVATIVE WORKS: If the screenplay is based on another work, a copyright report will need to be obtained to make sure all required rights have been obtained. There must be a written agreement between the creator(s) of all materials, including quotations from copyrighted work, granting permission to use the material in the production.
2) DEPICTION RELEASES: Written releases are required from all persons who are recognizable or whose name, image or likeness is used, and if such a person is a minor, the release should be binding (which may require court approval). If a subject is deceased, a release usually is not needed but may be required in some circumstances. Releases are not needed if the recognizable person is part of a crowd or background shot and is not shown for more than a few seconds or given special emphasis.
3) RESEMBLANCE TO LIVING INDIVIDUALS: Where work is fictional, names of all characters must generally be fictional. Take care to ensure that the names of fictional characters do not resemble the names of identifiable living individuals.
4) IDENTIFIABLE PRODUCTS: Where particular businesses, personal property or identifiable products are depicted, written releases must be obtained. Releases are not necessary if property is non-distinctive background.
5) RELEASES: All releases must:
(a) give right to edit and modify material.
(b) right to fictionalize people portrayed.
(c) right to market production in all media and markets.
6) TITLE: Title report for title must be obtained setting forth prior uses of title.
7) DEFAMATION/INVASION OF PRIVACY: Material should not contain any material that constitutes defamation or an invasion of privacy.
8) MERCHANDISING: If you are planning on any merchandising spin-offs, make sure your actor agreements grant you the right to depict the actor in merchandising.
I was recently asked to write an article on film financing for LexisNexis, a leading publisher of legal information for lawyers. Practical Guidance is a next generation tool for lawyers with enhanced technology that provides legal know-how, practical information, and forms on numerous topics.
For those who subscribe to the service, you can review it at: Film Financing Overview.
Or read a copy here: Published Articles by Mark Litwak
Crowdfunding with Donations: Crowdfunding refers to the process of raising money to fund a project or business through numerous small contributors, often using an online platform or funding portal to solicit their investment. Because investing is film is such a risky endeavor, being able to spread that risk among many people may substantially increase the amount of financing available for a film. Before the Jobs Act, crowdfunding could only be accomplished by seeking donations. Webportals like Kickstarter and Indiegogo could help filmmakers raise such donations. While those who made a donation could not share in any profits, they might receive certain benefits, such a screen credit on the film, a poster, T-shirts or other swag.
Crowdfunding Investments: With passage of the Jobs Act promoters are now able to offer a share of the profits in a project. This will likely encourage small investors who want to participate in film or other startup businesses, but can only afford to make a modest investment.
Funding portals are platforms that provide investors with information about investments being offered. These portals are designed to allow internet-based platforms or intermediaries to facilitate the offer and sale of securities without having to register with the SEC as brokers. Portals are required to register with the Commission and become a member of a national securities association (currently, FINRA). FINRA is an independent, non-governmental regulator for all securities firms doing business with the public in the United States. It is authorized by Congress to protect America’s investors by making sure the securities industry operates fairly and honestly.
The Securities and Exchange Commission (“SEC”), after a long delay, adopted rules to permit companies to offer and sell securities through crowdfunding. The new Regulations for Crowdfunding are to implement the requirements of the Jumpstart Our Business Startups Act (“JOBS Act”), enacted on April 5, 2012.
To qualify for equity crowdfunding one must meet specified requirements, including the following: the amount raised must not exceed $5,000,000 in a 12-month period; individual investments in all crowdfunding issuers in a 12-month period are limited to the greater of $2,500 or 5 percent of annual income or net worth, if annual income or net worth of the investor is less than $124,000; and 10 percent of annual income or net worth if annual income or net worth of the investor is $124.000 or more; and the funding portal must be registered and follow the rules that govern it. If you are an accredited investor, there are no limits on the amount you can invest.
For more information, see, https://www.sec.gov/oiea/investor-alerts-bulletins/ib-crowdfunding
One can only invest in a Regulation Crowdfunding offering through an online platform, such as a website or a mobile app, of a broker-dealer or a funding portal. Companies may not offer Regulation Crowdfunding investments to investors directly—they must use a broker-dealer or funding portal.
A list of portals can be found at: https://www.finra.org/about/firms-we-regulate/funding-portals-we-regulate
Companies that offer and sell securities to the public in reliance on an exemption from registration for securities-based crowdfunding must make filings on the Electronic Data Gathering, Analysis, and Retrieval system (EDGAR) which is the primary system for companies and others submitting documents under the Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Company Act of 1940. This database provides free public access to corporate information, allowing you to research a public company’s financial information and operations by reviewing the filings the company makes with the SEC. https://www.sec.gov/edgar/search-and-access
Unfortunately there are a lot of unethical persons attempting to raise funds. To avoid fraudsters, counsel should conduct some due diligence. There are ways to check on brokers and promoters in addition to checking court records.
FINRA offers a website called BrokerCheck. BrokerCheck is a free tool to research the background and experience of financial brokers, advisers, and firms. BrokerCheck gives you a snapshot of a broker's employment history, regulatory actions, and investment-related licensing information, arbitration and complaints including a list of brokers that are barred by FINRA. The website is at: https://brokercheck.finra.org/
The United States Copyright Office concluded recently that art created exclusively by Artificial Intelligence (AI) is not copyrightable. Artists can attempt to register works made with the assistance of AI, but they must prove significant “human authorship.”
In February 2023, the Copyright Office determined that a graphic novel comprised of human-authored text combined with images generated by the AI service Midjourney constituted a copyrightable work, but that the individual images themselves could not be protected under copyright. The Copyright Office has taken the view that copyright can protect only material that is the product of human creativity.
Applicants for registration have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide an explanation of the human author’s contributions to the work. The Copyright Office is in the midst of an initiative to examine the copyright law and policy issues raised by artificial intelligence. The office has published a new bulletin on the issue and set up a new webpage devoted to this topic: https://www.copyright.gov/ai/
SUPREME COURT RESTRICTS FAIR USE DOCTRINE ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. v. GOLDSMITH
In the past few decades, various decisions of the Supreme Court expanded the fair use doctrine which is a defense to copyright infringement claims. Under the fair use doctrine, creators can borrow from existing copyrighted works in creating their own transformative works without permission of the owner of the original works. For example, in Campbell v. Acuff-Rose Music, Inc. the owner of Roy Orbison's 1960's hit "Oh, Pretty Woman" sued the rap group 2 Live Crew over its unauthorized rap version of its song that they called "Big Hairy Woman." 2 Live Crew argued that its song was a parody mocking the banality of the original song and should be a fair use. A unanimous Supreme Court reversed the lower court’s decision, which had held that the rap song was a commercial use and not a fair use.
The Campbell Supreme Court opinion examined the fourth statutory fair use factor, namely, the effect of the subsequent use on the original's potential market and found that this factor was limited to realistic potential markets. The court explained that it was unlikely that the copyright owners of "Oh, Pretty Woman" would have released a parody rap version of their own song, and therefore the fourth fair use factor favored the defendants. Thus, the Court interpreted the fourth factor in a manner that favors a fair use.
As a reminder, the four factors to determine fair use are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
(4) the effect of the use upon the potential market for or value of the copyrighted work.
However, last week the Supreme Court appeared to go in the opposite direction by restricting the fair use defense in its decision of Andy Warhol Foundation v. Goldsmith. In 1984 Vanity Fair magazine wanted to license one of Lynn Goldsmith’s photographs of the musician Prince to illustrate a story about him. Goldsmith agreed on the condition that the use of her photo be a “one time use.” Vanity Fair then hired Andy Warhol to make a silkscreen based on Goldsmith’s photo, and then published this image with its article about Prince.
Without Goldsmith’s knowledge, Warhol also created 15 additional works based on her photograph, one of which is orange and called “Orange Prince.” After Prince died in 2016, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed Orange Prince to Condé Nast, for the purpose of illustrating a special magazine titled “The Genius of Prince.” AWF was paid $10,000 while Goldsmith received nothing. After Goldsmith informed AWF that she believed its use of her photograph infringed her copyright, AWF sued her for a declaratory judgment asking the court to find that that their use was not a fair use, which would not require a license. Goldsmith counterclaimed for copyright infringement.
The court found that the “purpose and character” of AWF’s use of Goldsmith’s photograph in commercially licensing the work to Condé Nast did not favor AWF’s fair use defense. The court stated:
As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same purpose. Moreover, AWF’s use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith’s photograph, in the context of the challenged use, the first fair use factor still favors Goldsmith…In sum, if an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying.
Justice Kagan and the Chief Justice issued a strong dissent stating that the majority opinion was not a continuation of existing copyright law and failed to acknowledge the importance of transformative copying. Citing the prior Campbell case, she argued that the first factor should concern whether the new work is transformative or not. “The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
Justice Kagan noted:
All of Warhol’s artistry and social commentary is negated by one thing: Warhol licensed his portrait to a magazine, and Goldsmith sometimes licensed her photos to magazines too. That is the sum and substance of the majority opinion. Over and over, the majority incants that “[b]oth [works] are portraits of Prince used in magazines to illustrate stories about Prince”; they therefore both “share substantially the same purpose”—meaning, a commercial one.
Of course, “Big Hairy Woman” and "Oh, Pretty Woman" are both songs that share the same purpose. This latest Supreme Court decision muddies the landscape and will make it more difficult to predict which uses are fair and which are not. Read the decision.
 114 S. Ct. 1164 (1994)
Writers and filmmakers need to understand their legal rights and how to defend themselves from those who may seek to exploit them or falsely claim their rights have been infringed. This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights, and by encouraging other parties to live up to agreements with performance incentives, audit rights, default penalties, and arbitration clauses. In the event of a dispute, participants learn what remedies are available to enforce their rights.
Other topics include defamation; invasion of privacy; protecting your stories and avoiding being sued when portraying others; typical compensation and terms of contracts; merchandising deals; and negotiating tactics and strategies.
This seminar includes more than 100 pages of useful contracts, checklists, forms, and materials. This class is for writers, filmmakers, content producers, attorneys, arts professionals and whoever is interested in the topic.
This program will be taught by Mark Litwak, Esq., Law Offices of Mark Litwak and Associates.Dates and Time (Participants should attend both days):
Day 1: Thursday, April 20, 2023, 1 - 4:30 PM EST
Day 2: Friday, April 21, 2023, 1 - 4:30 PM EST
Please note that this is a live webinar. A recording will not be available for those who cannot attend. Participants will receive an email in advance of this workshop with instructions to access the program. Please, therefore, make sure that you have regular access to the email address you use to register.
For more information on this program, please contact VLA at email@example.com.
For more information and to sign up: VLA
My son Michael's first feature film MOLLI AND MAX IN THE FUTURE will premiere at SXSW 2023.
Molli and Max in The Future is a sci-fi romantic comedy about a man and woman whose orbits repeatedly collide over the course of 12 years, 4 planets, 3 dimensions and one space-cult.
A grounded romantic comedy set in an absurd world, “Molli and Max” takes the character-driven romance of a movie like "When Harry Met Sally" and combines it with a sci-fi universe found in shows like “Futurama or “Rick and Morty." Through a combination of old-school practical visual effects (hand-built models, miniatures, puppets, stop-motion animation, and rear-projection) and cutting-edge technology (Unreal Engine and LED Volumes) the filmmakers have created a universe like no other. Tentacles! Robots! Glorp!
STARRING: Zosia Mamet (Girls, The Flight Attendant), Aristotle Athari (Saturday Night Live), Arturo Castro (Broad City), Okieriete Onaodowan (Broadway’s Hamilton), Erin Darke (Good Girls Revolt), Grace Kuhlenschmidt (Search Party), Michael Chernus (Severance), Aparna Nancherla (Bojack Horseman), Danny Burstein (Broadway’s Moulin Rouge), Paloma Garcia-Lee (West Side Story) and Matteo Lane (The Advice Special).
The film is the first feature directed by Michael Lukk Litwak whose thesis film won NYU Tisch’s top prizes and Deadline Hollywood voted it the #1 Short Film of 2014. He subsequently directed the entire third season of the series (Snatchers Season 3) for Warner Brothers and has directed numerous commercials and branded content including for Subway, Burger King, Keystone, Macy’s, Verizon, Yahoo, Applebee’s, Squarespace, Spotify and Snapchat. www.Michaellitwak.com.
Produced by Ben J. Murphy (Lucy and Desi), Candice Kuwahara (Milkwater), Mallory Schwartz (Before You Know It), Kate Geller (Casting Director, Shiva Baby), Executive Producers Ted Geogeghan (We Are Still Here) and Jeanne Elfant Festa (The Bee Gees).
Stateside Theatre on Saturday, March 11 at 11:30 AM
Violet Crown Cinema 2 on Tuesday, March 14 at 5:30 PM
Violet Crown Cinema 4 on Tuesday, March 14 at 6:00 PM
Alamo Lamar C on Saturday, March 18 at 11:15 AM
Donald Trump has filed suit against journalist Bob Woodward claiming that Woodward improperly published audio tapes of their interviews. The interviews were conducted with the understanding that that Woodward was authoring a book which was published in September 2021 with the title Rage. Woodward later decided to separately publish the audio tapes of his interviews with Trump.
Trump alleges that the publication of the audio tapes violates his rights because he only consented for the interviews to be used in the book although no written agreement exists to that effect. The lawsuit names Woodward, Simon & Schuster and the publisher’s parent Paramount Global as defendants and seeks damages of $49.98 million dollars. They have denounced the suit as “without merit.”
The case is likely to be thrown out like other Trump lawsuits. Trump’s lawyers do not seem to understand that one of the requirements for copyright is that the work has to be fixed in a tangible medium of expression to be copyrightable. Extemporaneous conversations are not copyrightable because they have not been fixed in a writing, on audio tape, or some other stable medium. Trump did not record these interviews, Woodward did.
Another requirement for copyright is originality. Here Woodward created his questions, but not Trump’s answers. So, Woodward may not own the copyright in Trump’s answers to his questions, but that does not mean that Trump has a copyright interest in them.
In the Estate of Hemingway v. Random House, Inc. (1966), book author A.E. Hotchner authored a book titled Papa Hemingway. It incorporated long conversations between the author and Ernest Hemingway. They had been close friends for 13 years and went on drinking escapades and travels together. Hotchner took notes and published several articles incorporating their conversations. Hemingway liked the articles. After Hemingway’s death, his estate sues Hotchner, seeking an injunction against the book and damages for infringement of common-law copyright. The court refused to find that Hemingway had any rights in their conversations.
In the case of Falwell v. Penthouse Int'l, Ltd., Jerry Falwell an evangelical fundamentalist minister objected when interviews with him were published in softcore porn magazine Penthouse. Falwell claimed that the interview appeared without his consent and contrary to specific conditions given orally to the defendants at the time of the interviews. Reverend Falwell objected to his interview appearing in this publication. However, the court found against Falwell stating:
Plaintiff's claim of copyright is not founded on any existing principle of law, nor is it even analogous to any of the circumstances which heretofore have been contemplated by the courts. Plaintiff's claim of copyright presupposes that every utterance he makes is a valuable property right. If this were true, the courts would be inundated with claims from celebrities and public figures all of whom may argue that their expressions should also be afforded the extraordinary protection of copyright. Such a result was never contemplated by the development of the law regarding common law copyright, and such a result would run counter to the firmly established constitutional guarantees of freedom of speech and of the press. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204, 1207-08 (W.D. Va. 1981).
Recently a Florida judge ordered Trump and his lawyer to pay nearly $1 million in sanctions to cover the legal costs of Hillary Clinton and others sued by Trump alleging a conspiracy to target him for criminal prosecution.
Read the Rage lawsuit.
The Copyright Office has announced its new system of electronic recording. Under the Copyright Act, the U.S. Copyright Office accepts certain types of documents for filing and indexing into the Office’s public records. There are three primary types of documents that may be submitted for recordation: transfers of copyright ownership, other documents pertaining to a copyright, and notices of termination. Once indexed by the Office, recorded documents become available for inspection by the general public.
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
For older posts, please visit The Litwak Blog.