In Dr. Seuss Enters., L.P. v. ComicMix LLC, Defendants created a Kickstarter campaign in order to fund printing and distribution of an allegedly infringing work, Oh, the Places You'll Boldly Go! ("Boldly"), a mashup which combines aspects of various Dr. Seuss works with certain characters, imagery, and other elements from Star Trek, the science fiction entertainment franchise created by Gene Roddenberry.
 
The U.S. District Court for the Southern District of California dismissed the trademark claims but refused to dismiss the copyright infringement claim on the grounds that there was insufficient evidence of whether this work would affect the market for Dr. Seuss works.  The court found that Boldly failed to qualify as a parody even though it was transformative, explaining “it combines into a completely unique work the two disparate worlds of Dr. Seuss and Star Trek. [Boldly] tells the tale of a young boy setting out on adventure and discovering and confronting many strange beings and circumstances along his path.” The court has now made its decision and dismissed the entire suit. This is another in a recent line of cases enhancing the right of fair use.
 
While the defendants were found to take various elements from Dr. Seuss works, including cross-hatching, object placements, certain distinctive facial features and lines written in anapestic tetrameter, they did not use any words, characters or the universe of the original. The Court concluded that Plaintiff had failed to sustain its burden to demonstrate that Boldly is likely substantially to harm the market for Boldly. Instead, the “potential harm to Plaintiff’s market” was found to be “hypothetical.”
 
The court found the work was "highly creative" and that took no more than was necessary even though it was a commercial endeavor that may or may not harm the marketplace for the original.
 
You can view a sample of the book here

You can read the court decision here.
 
 One useful resource in determining fair use is the copyright office’s compilation of cases in its Fair Use Index . 

​Congratulations to our client Steven Fine whose feature directorial debut Love Shot will be released today on Comcast, Directv, iTunes, Prime Video, Redbox, Barnes & Noble, Walmart and numerous other platforms and stores.
 
Gravitas Ventures acquired domestic rights while Cinetel Films has acquired international rights.

The film won the audience choice award at the Culver City Music Festival. Watch the trailer Here

The Michael Jackson estate has sued HBO over its new and very controversial documentary Leaving Neverland  that recently premiered at the recent Sundance Film Festival.  The documentary tells the story of Michael Jackson’s long-running relationships with two boys, aged 7 and 10, and their families. Now in their 30s, the men claim they were sexually abused by Jackson. The four-hour film is set to air March 3rd and 4th on HBO. 

The film has been called both shocking and brutal in its revelations. It has also been criticized for being one sided by not allowing the Jackson’s estate and family an opportunity to refute the allegations. The documentary pays little attention to the fact that the alleged victims’ lawsuits against the Jackson estate were dismissed although on appeal. Moreover, Jackson was acquitted of allegations of child molestation back in 2005 with a unanimous jury verdict after a trial in Santa Maria, California.  The Plaintiffs contend that HBO and the filmmaker failed to contact two other persons identified as victims of Jackson’s abuse who have publicly stated that the allegations that they were abused are false. 

Since Michael Jackson died in 2009, his estate cannot sue for defamation as the right to protect one’s reputation is considered a personal right that is not inherited by one’s heirs.  Essentially anyone can defame the dead with impunity. This is one reason why scandalous tell all books about celebrities are often published after their subjects die.  Furthermore, celebrities have a much higher burden to bear to prevail in a defamation action. They must prove that the defendant acted with actual malice, meaning that the defendant intentionally defamed another or acted with reckless disregard for the truth.  Plaintiffs often find it difficult to prove that a defendant acted with actual malice.  So even if Michael Jackson was alive, he might have a difficult time proving he has been defamed.

While the Jackson estate acknowledges it cannot sue for defamation, it pins its case on allegations that HBO violated a non-disparagement clause that was part of a license to air Jackson’s first-ever televised concert performance back in 1992. According to the Plaintiffs, that  two-hour television show was HBO’s highest-rated special ever, with approximately 3.7 million U.S. households tuning in.  

In the agreement for that show, HBO promised that it “shall not make any disparaging remarks concerning Performer or any of his representatives, agents, or business practices or do any act that may harm or disparage or cause to lower in esteem the reputation or public image of Performer...”  This provision was attached as part of a confidentiality exhibit to the license. It is not clear whether a court would deem such a provision to preclude HBO from ever saying anything disparaging of Michael Jackson, including matters unrelated to that concert. The lawsuit alleges that HBO is so desperate to catch up with new competitors like Netflix that it is willing to ignore journalistic standards and violate its agreement with Jackson in order to air compelling content. 

Read the lawsuit here.
 

Mark has once again achieved a brief moment of fame on the big screen in Hollywood. Disney recently released Ralph Breaks the Internet, a sequel to its “Wreck-it Ralph movie,” and once again, Litwak’s Video Arcade is included in the movie.  One of the film’s writers was inspired to give the arcade this name after attending one of Mark’s lectures at Cal-Arts many years ago. In the film, Mr. (Stan) Litwak is the friendly owner and operator of Litwak’s video arcade. Released during Thanksgiving the animated film has already grossed 285 million at the box office. More about the character:
http://disney.wikia.com/wiki/Stan_Litwak

 
Hollywood is a strange place with its own customs and practices. One custom that often confuses newcomers is when a studio executive or producer tells them that he or she would love to read their script but can only do so if it comes in from an attorney or an agent. The caller then seeks to obtain such representation because they think the intended recipient is genuinely interested in reading their script. Unfortunately, that is usually not the case. The executive is just looking for a way to get off the call without offending the caller. They know most novices do not have representation, so this is a diplomatic way of saying, “No thanks.”

The truth is that most studio executives do not want to spend time reading material that comes over the transom from people who may not have experience or expertise in the craft of storytelling. Studio executives believe that 99% of the time such material from novice writers is not worthy of consideration.  Since there are plenty of scripts to consider from the major talent agencies, there is little need to consider work from beginners trying to break into the industry.

Executives are also concerned about being sued for story theft.  They are afraid that if they read a script and pass on it, and later develop something similar, they will open themselves to being sued.  There have certainly been many such suits filed and more than a few of them have been found to be without merit.

Consequently, most studio executives and producers will not accept unsolicited submissions, especially from persons they do not know and those without a track record. Consequently, it is very difficult for newcomers to the entertainment industry to have their scripts read by industry insiders if they do not have representation. In the rare instance that an executive is willing to accept a script from a novice writer, the writer is often asked to sign a submission release or waiver making it more difficult for the writer to sue for theft of their material.
​
There is no law that requires that the material be submitted by an agent or attorney.  You can be sure that if George Clooney calls Universal, they will be delighted to receive material directly from him. In fact, they will send over a messenger to pick up the script. The fact is, a filmmaker with a successful track record can get a commitment just by pitching an idea for a film because the studio wants to work with that person.
 
Even if an unknown writer can submit a script to a studio, the chances of a bare script being given serious consideration is not likely. That is because nowadays studios and networks often prefer packaged projects. They want a star and director attached. When agencies submit scripts, they often are packaged with other elements which make the project more desirable in the eyes of a studio.
 
So then how does an unknown writer break into the industry?  There is no easy answer. But often you break in because of a relationship with someone who already has a foot in the industry, such as your friend from film school or a producer who has access. Or if you produce something yourself that is so exceptional that it receives attention at a film festival or with critics.  
 
Going the independent route has become more viable because the cost of production has gone down. In the days when making a film meant purchasing film stock and developing it, you needed some serious cash to get into the game.  Nowadays, talented filmmakers can make films with low cost digital cameras, edit them on a computer, and then upload it to YouTube. For an enterprising person willing to hustle, a film can be made for very little. 

Stormy Daniels aka Stephanie Clifford has had her defamation case against President Trump tossed out of court on the grounds that Trump’s statements were “rhetorical hyperbole.” In defamation law, the phrase “rhetorical hyperbole” encompasses a variety of communications, including epithets, insults, and name-calling, all of which may be protected expression. So what exactly is “rhetorical hyperbole” and how does this doctrine insulate one from making statements that might otherwise be considered defamatory?

To recap the circumstances surrounding this case, Clifford is a porn star who had an affair with Donald Trump. In May of 2011, she agreed to cooperate with In Touch Magazine in connection with an article about her relationship with Mr. Trump. She agreed to speak to the magazine after her ex-husband approached the magazine without her approval. Several weeks later she says she was approached by a man who threatened herself and her daughter. The man said, “Leave Trump alone. Forget the story.”

Ms. Clifford later worked with a sketch artist to render a sketch of what the man who made the threat looked like. Ms. Clifford released the sketch on April 17, 2018. The next day, Mr. Trump, from his Twitter account, posted a purportedly false statement regarding Ms. Clifford, and her account of the threatening incident.  Mr. Trump's tweet stated: "A sketch years later about a nonexistent man.  A total con job, playing the Fake News Media for Fools (but they know it)!"

Clifford filed a defamation lawsuit against Trump.  She argues that the tweet attacks the truth of her account of the threatening incident and suggests that she is falsely accusing an individual of committing a crime against her. In other words, Trump is saying she “is a liar, someone who should not be trusted, that her claims about the threatening encounter are false, and that she was falsely accusing the individual depicted in the sketch of committing a crime, where no crime had been committed."

Ms. Clifford alleges that Mr. Trump acted with actual malice in issuing the tweet because he knew the falsity of his statement because the person who threatened her acted at the direction of Mr. Trump or Mr. Trump's attorney, Michael Cohen.

If the lawsuit was allowed to proceed, Trump could be compelled to testify under oath which might create a dilemma for him, just like it did for Bill Clinton when he was sued by Paula Jones. Whether a president has immunity from a civil suit for actions before taking office and unrelated to his office, was decided by the Supreme Court in Clinton v. Jones.[1] In a unanimous opinion by Justice John Paul Stevens, the Court ruled that separation of powers does not mandate that federal courts delay all private civil lawsuits against the President until the end of his term of office.  Therefore, if Clifford’s suit against Trump is able to proceed, he might face a dilemma. If he lies under oath, he commits perjury. If he tells the truth, well that might be embarrassing.

A defamatory statement is one that is both false and that tends to “harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”  Usually statements that are “merely unflattering, annoying, irksome, or embarrassing, or that hurt only the plaintiff’ s feelings” do not support a defamation claim.  Humor or parody is generally protected by the First Amendment and is considered a form of protected opinion. There is no libel when the material is clearly understood as parody, satire, humor, or fantasy and is not capable of a defamatory meaning.[2] Similarly, statements that reflect a point of view, or opinion, rather than specific allegations of fact are not considered defamatory. “Vigorous epithets,” “rhetorical hyperbole,” “loose, figurative language,” or “lusty and imaginative expressions” are also not considered defamatory.

In one case,[3] cartoonist, Paul Conrad of the Los Angeles Times was sued by Los Angeles Mayor Sam Yorty for a cartoon lampooning his desire to be appointed to President Nixon’s cabinet. The caricature depicted him as he is about to be placed into a strait jacket and taken by medical orderlies. The caption read, “I’ve got to go now … I’ve been appointed Secretary of Defense and the Secret Service men are here!” Although the court held that a cartoon could be libelous if it presented as fact defamatory material which is false, it found the cartoon to be “no more than rhetorical hyperbole, a vigorous expression of opinion by those who considered Mayor Yorty’s aspiration for high national office preposterous.” As such it was a form of protected editorial comment which was not reasonably susceptible to a defamatory meaning.

One court[4] held that the “lunacy of the statements themselves” was a factor in finding the statements not defamatory as a matter of law. Rhetorical hyperbole is part of the larger opinion-fact distinction in defamation law.  To be defamatory, a statement must be one of fact. Consequently, neither statements of opinion, which do not imply assertions of fact, nor statements that are not to be taken literally, such as rhetorical hyperbole, are considered defamatory.

In dismissing Stormy Daniels suit, the court held:

Mr. Trump's tweet served as a public rejoinder to allegations made by Plaintiff.  If this Court were to prevent Mr. Trump from engaging in this type of "rhetorical hyperbole" against a political adversary, it would significantly hamper the office of the President.  Any strongly-worded response by a president to another politician or public figure could constitute an action for defamation. This would deprive this country of the "discourse" common to the political process.  In short, should Plaintiff publicly voice her opinions about Mr. Trump, Mr. Trump is entitled to publicly voice non-actionable opinions about Plaintiff.
 
 
Clifford’s attorney has filed an appeal seeking to overturn the dismissal.
 
You can read the judge’s opinion here.
 


[1] Clinton v. Jones, 520 U.S. 681 (1997).

[2] Salek v. Passaic Collegiate School, 255 N.J. Super. 355 (N. J. Super. Ct. App. Div. 1992).

[3] Yorty v. Chandler, 91 Cal. Rptr. 709, 715 (Cal. Ct. App. 1970).

[4] Frank v. National Broadcasting Co., Inc., 506 N.Y.S.2d 869, 875 (N.Y. App. Div. 1986).

​Shopping refers to the practice of producers pitching a story that they do not own or have not optioned.  Let’s say you are a writer. You go in to see a producer and pitch your project. The producer says “Interesting. Let me think about it for a few days and get back to you.” After you depart, the producer calls his buddy, an executive at ABC, and pitches your story without your knowledge. If there is interest, the producer takes an option on your project. If there is no interest, he passes. He never tells you that behind your back he pitched your material and it was rejected. 
 
You go on your merry way and pitch your story to a more ethical person.  Let’s call him producer Bob. He takes an option on your story before pitching it. When he goes in to ABC they inform him that they already heard your story and passed on it. Producer Bob is unhappy that you did not disclose this fact to him. 
 
Shopping without permission of the writer is unethical.  Producers who do not risk any money on an option tend to hastily package and pitch a project. The tendency is to throw the project up against the wall to see if it will stick. A more careful approach developing the project and attaching elements would likely produce better results. Shopping can tarnish a project. Once ABC has heard and passed on your story, it is unlikely that they will reconsider, even if your story is better the second time.
 
While bestselling authors and acclaimed screenwriter are not likely to enter into shopping agreements, there are many novice writers who are open to have an experienced producer pitch their script even without being paid an option fee.  Many writers don’t have connections to production companies, networks, studios or platforms. A novice writer may feel fortunate to have her material presented by a legitimate producer with a track record and access to those who have the power to get a script produced. Moreover, producers may be reluctant to spend money optioning material from an unknown and unproven writer.  Sometimes the material is so original and unique that it is clearly a longshot to get it set up. 
 
Furthermore, the number of producers who have first look or exclusive deals at studios have declined. Under those deals, the studio typically would provide development money that could be used as option money. Producers who do not have such an arrangement with a studio have to pay option fees out of their own pocket. Consequently, shopping agreements have become increasingly common in the industry.
 
Producers like to have the opportunity to present the material without making a significant financial commitment up front. Writers hope that having an experienced producer shop and package the script with other attractive elements will increase its chances of getting produced. There is nothing improper about such an agreement provided the arrangement is disclosed and everyone understands the nature of the deal. 
 
A shopping agreement typically provides that the producer can bring the material to potential studios and networks, and, if there is interest, the writer and producer will each negotiate their own deal. This arrangement has some benefits for each party but also some potential pitfalls. If, for example, either party is unreasonable in their demands when negotiating their deal with a network, the other party cannot proceed without them. The producer has wasted his time and effort. 
 
With an option agreement, the producer has much more control over the project. The producer typically has the right to exercise the option, at which time the purchase agreement, which has been negotiated already, kicks in. The terms for the sale of the script have already been agreed upon so the writer has very little leverage and cannot prevent the project from moving forward as long as the producer abides by the terms of the option purchase agreement.
 
Shopping agreements are sometimes referred to as producer attachment agreements. The producer is helping prepare the project to be presented and may also attached other elements such as a star that will make the project more appealing. The producer typically has a track record, and a network takes comfort in knowing that they are dealing with someone who has the proven ability to produce a project. 
 
Shopping agreements tend to have shorter terms than option purchase agreements. The term is often less than one year; although, if the project is set up it may automatically be extended. The producer is protected by having a written agreement that prevents the writer from pursuing the project with a studio or network introduced by the producer. The writer is often precluded, even after the term, from pursuing the project with a third party that the producer has brought the project to. Producers sometimes pay a fee to the writer to compensate him from taking the project out of the market.
 
 

Congratulations to Devin Hume and Bruce Robinson. Their new crime mystery feature film Making A Killing  will premiere this Friday in Beverly Hills. It based on a true story involving a murder trial that recently concluded in Otero County, Colorado. 
 
The film tells the story of Arthur Herring who serves as the mayor, priest and mortician in a small town. A pillar of the community, he and his brother are accused of theft of a coin collection and the murder of a fellow mortician who is a convicted felon recently released from prison. The brothers struggle to keep their ambitions in check while a detective, Orlando Hudson, dives head deep into trying to find out what happened and why.
 
After meeting resistance in his investigation, Orlando presses on and soon uncovers a case with buried treasure, gold mining in dead bodies and a tangled love affair that is sure to rock the small town. 
 
The film stars Michael Jai White, Mike Starr, Sally Kirkland, Aida Turturro and Christopher Lloyd.  Writer/Director Devin Hume is known for his award winning short films and work as a cinematographer. This is his debut feature film.
 
The film will premiere in Los Angeles at the Laemmle Music Hall at 9036 Wilshire Blvd
in Beverly Hills on Friday August at 9:55 PM. Tickets can be purchased at: tickets
​​

​ A lawsuit has been filed claiming that “The Shape of Water” which won best-picture at this year’s Oscars, infringes the copyright of a play by a famous playwright. The estate of Paul Zindel, a Pulitzer prize-winning American playwright alleges  that Guillermo del Toro’s film “brazenly copies the story, elements, characters and themes” of Zindel’s play “Let Me Hear You Whisper” (1969).

As the Economist explains: 

Both stories are set in a government-controlled laboratory during the cold war. Both feature a cleaner who develops a relationship with a captive sea creature, dancing in front of its tank with a mop to a love song and devising a plan to smuggle it to safety in a laundry cart after she learns of plans to kill and dissect it.

However, there are many differences in the stories, and ideas are not copyrightable. While a detailed plot and characters can be protected under copyright law, the fact that two works share certain similarities does not mean one infringes the copyright of the other. It's complicated.

As Mark explains, "Unlike patent law, the first person to publish a creative concept does not own it. “If two people come up with the same story independently, without borrowing from the other one, they both get the copyright in their work,” 

Read he full article here .  

Congratulations to our clients producer Bruce Robinson and Director Devin Hume whose film Making a Killing will be shown at the  Santa Fe Film Festival on February  10th at 8.00 pm at The Screen theater, and at the Garden State film which runs from March 22nd to the 25th.  The film is being distributed by Shoreline Entertainment.

Making A Killing based on a true story revealed during a murder trial that recently concluded in Otero County, Colorado.
 
The film tells the story of Arthur Herring who serves as the mayor, priest and mortician in a small town. A pillar of the community, he and his brother are accused of theft of a coin collection and the murder of a fellow mortician who is a convicted felon recently released from prison. The brothers struggle to keep their ambitions in check while a detective, Orlando Hudson, dives head deep into trying to find out what happened and why.
 
After meeting resistance in his investigation, Orlando presses on and soon uncovers a case with buried treasure, gold mining in dead bodies and a tangled love affair that is sure to rock the small town.  
 
The film stars Michael Jai White, Mike Starr, Sally Kirkland, Aida Turturro and Christopher Lloyd.  Writer/Director Devin Hume is known for his award winning short films and work as a cinematographer. This is his debut feature film.

​Many bloggers and social media users may be surprised to learn that truth in advertising laws apply to them just as they do to television broadcasters and magazine publishers. Endorsements must be honest and not misleading. The endorser must disclose if they have a financial interest in the product they are promoting or if they are being paid to promote it.
 
Recently, the Federal Trade Commission (FTC) for the first time went after social media influencers who did not disclose their interest in a website that they promoted to their subscribers.  Trevor Martin and Thomas Cassell are popular social media influencers in the online gaming community. They posted videos on their YouTube channels (with 3.3 million and 10 million subscribers respectively) showing them participating in an online gambling service without disclosing that each had a 42.5% ownership interest in the online gambling company, thereby violating FTC disclosure laws. The FTC’s complaint can be read here.  
 
The case was settled with a Consent Agreement that requires the parties to:
 

• Comply with FTC disclosure guidelines, with an additional burden to properly monitor and ensure compliance by any endorsers they partner with for promotional purposes in the future;
• Submit a compliance report in one year;
• Keep records of activities related to the business for up to 10 years; and
• Submit to ongoing compliance monitoring by the FTC for a period of up to 10 years.

  
The FTC is troubled with endorsements that are made on behalf of a sponsoring advertiser. For example, an endorsement by a blogger would be covered by the FTC Act if he or she was paid to mention a product. Even if not paid, if one receives free products or other benefits with the expectation that the blogger will promote a product in a  blog, the blogger is potentially violating the law.  Such practices may constitute unfair or deceptive acts affecting commerce in violation of Section 5(a) of the Federal Trade Commission Act.
 
The FTC publishes endorsement guides  to provide guidance as to the rules and laws that apply. A single disclosure on a home page may not be adequate to insulate yourself from liability if visitors would not see the disclosure when reading a review or watching a video on your site.
 
 Mark Litwak