In determining whether an individual providing service to another is an independent contractor or an employee, the "control" test, is often used initially to make this evaluation. To put it simply, an employee is an individual who the employer has the right to exercise control over the manner and means by which the individual performs his or her services.  

However on  April 30, 2018, the California Supreme Court adopted an expansive definition of "employee" and rejected the Borello test for determining whether workers should be classified as either employees or independent contractors for the purposes of the wage orders adopted by California’s Industrial Welfare Commission (“IWC”) in favor of a worker-friendly standard that may upend the existing independent contractor labor market.

Under the new so called ABC test, a worker will be deemed to have been “suffered or permitted to work,” and thus, an employee for wage order purposes, unless the employer proves:

(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

Each of these requirements need to be met in order for the presumption that a worker is an employee to be rebutted, and for a court to recognize that a worker has been properly classified as an independent contractor.

This new test will likely result in many “independent contractors” in the entertainment industry being reclassified as employees. 

In addition, under existing California Labor Code section 3351.5(c), if a service contract has “work made for hire” language, the worker is  deemed to be an employee, and almost all contracts in the industry have this kind of language vesting ownership in the employer.

More details.

Eight persons who are behind two of the largest illegal streaming services in the U.S. have been indicted on charges of conspiring to violate federal criminal copyright law, the Department of Justice has announced. 

According to the indictment, the defendants allegedly ran an entity called Jetflicks, an online subscription-based service based in Las Vegas, Nevada, that permitted users to stream and, sometimes download copyrighted television programs without the consent of the copyright holders.

The defendants copied thousands of copyrighted television episodes without authorization, and distributed the infringing programs to tens of thousands of paid subscribers located throughout the U.S.  At one point, Jetflicks claimed to have more than 183,200 different television episodes. Read the Department of Justice news release.

​The Music Modernization Act (aka the Orrin G. Hatch Music Modernization Act), was passed unanimously in the Senate. The bill is now waiting on a vote in the House of Representatives, where it is expected to pass and then be signed by President Trump and become law. At a time when bipartisan agreement is rare, this was an extraordinary compromise supported by both Democrats and Republicans as well as most of the music industry.
 
The bill is essentially a fix for some issues that have arisen from streaming music by companies like Spotify. The Music Licensing Collective it establishes will begin operating on Jan. 1, 2021. This clearinghouse will be run by the artists and publishers and be paid for by the digital streaming services. It will maintain a public database that will permit streaming music services to easily locate data about who owns music and ensure that the owners are compensated for it.  The Act updates licensing and royalties for streaming and provides that songwriters and artists receive royalties for pre-1972 songs.  

​As reported in the Los Angeles Times, the home video market for sales and rentals of movies continues to decline as more consumers turn to Netflix and other services for movies. Revenue from sales and rentals of movies and television shows totaled $12 billion in 2016, down seven percent from the prior year, according to data released Friday by trade organization Digital Entertainment Group. At the same time, subscription streaming services continued rapid growth, increasing nearly 23 percent to $6.23 billion in consumer spending. For the first quarter of 2017, Electronic Sell Through increased 13 percent. Consumer spending on home-video entertainment grew two percent from the same period in 2016. 

The Writers Guild of America (WGA) and the talent agencies represented by the Association of Talent Agents (ATA) are on a collision course. The WGA wants to stop agencies from having an interest in affiliated production companies and taking packaging fees.  Packaging is the practice of an agent putting together a script, star and director and presenting it as a bundled deal to a studio or network. The practice is largely dominated by the major talent agencies who can draw on their large pool of clients to assemble an attractive project.  Packaging is mostly a television phenomenon and is extremely lucrative for the agencies. Instead of taking a ten percent commission on their client’s earnings, the agency instead receives a percentage of the production budget and often a share of the profits.  While agents usually forego commissioning their clients when they take a packaging fee, the amount paid them reduces the funds that can be spent on production, including compensation paid to writers. And an agency receiving a package fee has less incentive to get their writer greater compensation because it does not affect the fee the agency receives.

What seems to be lost in the controversy is why packaging has become so dominant in the industry. It is not just that the big talent agencies are greedy. It is because the studios and networks have relinquished much of the creative control they used to exert.

When a studio finds a script it likes, it will not approve it for production without knowing who the director or showrunner will be, the identity of the principal cast and the of the budget. If the studio wants to package elements itself, it must option the script and expend the effort to assemble the other elements before the option expires. Unless the studio has commissioned the script and owns it, that means paying the writer an option fee to take the script off the market. That is often ten percent of the purchase price, which for a desirable script can be a significant sum. Then the studio must find a director or showrunner, and the most sought-after people are often in great demand. The studio will also want to secure a star or name actor or two before committing funds to its production. The truth is that studio executives often prefer to accept an agency package than to assemble one themselves.  It is a lot of work to find a good script and recruit a director and stars that want to collaborate. Let’s say you find a script you like and can interest a director. Now you approach stars, but it takes weeks for them to read the script and respond as most are in high demand and many will ultimately decline.  Or perhaps the star likes the script but wants changes made to it or who will direct it. Or their busy schedule means the shoot must be postponed until next spring, but that conflicts with commitments made by the director, the co-star or producer.  And while you are paying option and holding fees, you are taking a financial risk which will be a complete write off if the project collapses and never gets produced.  Herding cats may be easier than assembling elements into a package.  

Consequently, studio executives have found that it is much easier to let a big agency package a project and present all the elements on a silver platter to them. All the buyer has to say is yes or no. They don’t have to rush about trying to secure elements before their option expires or juggle personalities and schedules. The studios and networks complain about packaging fees, but no one is forcing them to accept packages.
The fact is the studios have evolved and become financiers and distributors rather than producers. They don’t exercise creative control like the old days when a mogul would staff a project by simply picking among the writers, directors and stars they employed under long term contracts. The studios today are more like banks considering a mortgage. Bring them the right paperwork, check the boxes and its approved. 

The WGA is correct that packaging poses a conflict of interest for agents. But agents are awash in conflicts of interests. The top agencies represent hundreds of stars, director and writers who compete for the same projects. And writers want to be represented by these agents because of their clout and relationships with studios as well as access to the stars and directors they represent. A writer given the choice of retaining an agent who would only represent her, or an agency that represents a lot of top talent, will usually choose the later.

The problem with this struggle between the WGA and ATA is that there is no middle ground. Unlike a labor negotiation which is a matter of haggling over work rules and minimums there is plenty of room to compromise. I don’t see the WGA backing down, and I think the agencies will strenuously resist losing a large portion of their income. Moreover, if the WGA is successful in banning the practice of packaging, that may only encourage more agents to become managers who are completely unregulated and often produce their client’s projects.  So, stay tuned. It is going to be interesting.

More about the controversy.

​Mark returns to NYC to present his one day seminar with Volunteer Lawyers for the Arts: SELF-DEFENSE FOR WRITERS AND FILMMAKERS 

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 by adding performance incentives, default penalties and arbitration clauses. In the event of a dispute, participants learn what remedies are available to enforce their rights. Related topics include protecting your stories, typical compensation and terms of contracts, merchandising deals, and negotiating tactics and strategies. The seminar includes more than 100 pages of useful contracts, checklists, forms and materials.

This seminar is for filmmakers and lawyers. Lawyers earn Seven (7) Continuing Legal Education  credits: 4 Areas of Professional Practice credits, 2 Skills credits, and 1 Ethics credit. 

When: Friday, April 26, 2019, 10 AM – 6 PM
Where: Skadden, Arps, Slate, Meagher & Flom, 4 Times Square, New York, NY 10036

Includes lunch. 
For more info and to Register

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).