​ 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

The Grinch and Fair Use
By Mark Litwak
 
On September 15, 2017, Judge Alvin K. Hellerstein of the United States District Court
for the Southern District of New York[1] issued an important fair use ruling about a play based on a children’s book. Playwright Matthew Lombardo wrote Who's Holiday! which makes fun of the characters, plot, and setting of the classic book, How the Grinch Stole Christmas! ("Grinch") by the late Theodor Seuss Geisel who went by the pen name
Dr. Seuss. The author created many of the most popular children's books of all time, selling more than 600 million copies.
 
The original Grinch book is about a green creature that lives in a cave on Mount Crumpit in the town of Who-Ville, home of the merry and cheerful Whos, who love Christmas.
The Grinch, who hates Christmas, decides to ruin the holiday by disguising himself as Santa Claus and stealing all of the communities’ Christmas trees and presents. While pursuing his evil deeds, he meets Cindy-Lou Who, a cute two-year old.  When she asks the Grinch why he is taking her family's tree, the Grinch lies by telling her that he needs to repair a light but will return it soon. Cindy-Lou goes back to bed. The next day, as the Grinch listens for the sound of despair from crying residents, he is surprised instead when he hears merry singing. The Grinch, upon learning that the residents could remain joyous even without presents or Christmas trees, realizes that Christmas means more than presents.

The play is a one woman 75-minute comedy presenting a destitute 45-year-old adult version of Cindy-Lou Who. It takes place at a 1970s-era trailer. Cindy-Lou speaks to the audience in rhyming couplets that are clearly intended to evoke the work of Dr. Seuss while waiting for guests to arrive for her Christmas party. She informs the audience, using bawdy rhymes, of the story of her life, beginning with her first encounter with the Grinch followed by sex, a marriage opposed by her parents, the birth of a child, and eventually divorce.

As she relates her story, Cindy-Lou swills hard alcohol, consumes prescription pills, and smokes a substance she calls “Who Hash," which she describes as just "like a prescription" which keeps her in check to avoid a "conniption." She engages in this self-medication following her realization that none of the guests she invited to her party is going to arrive, as they keep calling throughout the Play to cancel.
 
The key issue raised by the case was whether the Play is a fair use that comments on Grinch by imitating and ridiculing its characteristic style for comic effect, or unfairly exploits the characters, style and themes of Grinch to capitalize on the original. Under the fair use doctrine, authors can draw upon existing works to produce new works of authorship without violating the copyright of the original author. Such uses include fair comment and criticism, parody, news reporting, teaching, scholarship, and research. Thus, a movie or literary critic does not need permission to include a small quote from a work being reviewed. It is sometimes said of writers that if you borrow extensively from another’s work, you are a thief; but, if you borrow small amounts from many, you are a scholar. Of course, the scholar adds value by synthesizing information from prior works and creating something new. 
 
In determining whether the use of a copyrighted work is a fair use, courts weigh four factors: 1) the purpose and character of the work; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion borrowed in relation to copyrighted work as a whole; and 4) the potential adverse effect on the market for, and value of, the copyrighted work.
 
One type of fair use is a parody, which is a work that imitates the characteristic style of an author or a work for comic effect or ridicule. The work copied must be, at least in part, an object of the parody. The central question in many instances is “whether and to what extent the new work is 'transformative.’'' In other words, as the Supreme Court has explained, "whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message."[2]
​
After a detailed analysis, Judge Hellerstein found that the Play “recontextualizes Grinch's easily-recognizable plot and rhyming style by placing Cindy-Lou Who — a symbol of childhood innocence and naiveté — in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teen-age pregnancy, drug and alcohol abuse, prison culture, and murder. In so doing, the Play subverts the expectations of the Seussian genre, and lampoons the Grinch by making Cindy-Lou's naiveté, Who-Ville's endlessly-smiling, problem-free citizens, and Dr. Seuss' rhyming innocence, all appear ridiculous.”
 
This case is another in a recent series of cases[3] that further defines what is a fair use and expands protection for authors who parody pre-existing works. However, this past June, a motion to dismiss a case concerning the works of Dr. Seuss was decided by the United States District for Court for the Southern District of California with a different outcome.[4] Rather than dismiss the case, the court let the matter proceed forward.
 
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"), 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. Here, the court 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’ work. 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. Go! tells the tale of a young boy setting out on adventure and discovering and confronting many strange beings and circumstances along his path.” While the defendants were not successful in getting the court to dismiss the complaint with a preliminary ruling, the outcome of the case remains to be decided.
 
These two cases demonstrate the difficulty of determining whether a fair use defense is viable. One useful resource in determining fair use is the copyright office’s compilation of cases in its Fair Use Index found at: https://www.copyright.gov/fair-use/fair-index.html.
[1] Lombardo v. Dr. Seuss Enters., L.P., No. 16 Civ. 9974 (AKH), 2017 U.S. Dist. LEXIS 150213, (S.D.
N.Y. Sept. 15, 2017), available at https://advance.lexis.com/api/document/collection/cases/id/5PGM-YH61-F04F-03KC-00000-00?cite=2017%20U.S.%20Dist.%20LEXIS%20150213&context=1000516. 
 
[2] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994).

[3] See Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., 953 F. Supp. 3d 701, 712, where the court held that Woody Allen’s inclusion of a short quote (“The past is not dead! Actually, it’s not even past”) from William Faulkner’s Requiem for a Nun in the film Midnight in Paris was a fair use. In Seltzer v. Green Day, Inc., 725 F.3d 1170, 1179 ((9th Cir. 2013), the Ninth Circuit held that the popular band Green Day’s unauthorized use of street artists’ work as a video backdrop for its stage show did not violate the artists’ rights.

[4] Dr. Seuss Enters., L.P. v. ComicMix LLC, No. 16cv2779-JLS (BGS), 2017 U.S. Dist. LEXIS 89205, at *31 (S.D. Cal. June 9, 2017). 

According to a recent New York Appellate Division  decision, stories based on facts that have significant fictionalization may violate New York’s Civil Rights Law Section 51,  which contradicts precedent in other jurisdictions and has created uncertainty as to when one can produce a fictionalized movie based on true events without obtaining releases from the subjects of the story.
 
Several years ago, a New York court enjoined Lifetime Television from exhibiting the movie Romeo Killer: The Christopher Porco Story, which was based on the true story of Porco's murder of family members. Porco sued Lifetime, but Lifetime was able to vacate the injunction as a prior restraint of its first amendment right to free expression. This ruling was later upheld on appeal, and Porco's complaint dismissed. Now, however, the Appellate Division has reversed that dismissal.  
 
Porco, who is incarcerated, contended that the movie violated New York’s Civil Rights Law Section 51, the state's privacy law, which protects individuals from the use of their identity for advertising or trade without the prior written consent of the subject. New York's law, however, has an exception for stories considered newsworthy. Porco alleged that the story is a fictionalized account, and that it appropriates his name without his consent "for purposes of profit."  In a surprise decision, the appeals court ruled that the newsworthiness exception could be overcome by fictionalizing the story.
 
The decision is based in part on an earlier decision concerning a fictionalized biography of Warren Spahn, a well-known baseball player, who sued over the publication of an unauthorized biography alleging that his rights under New York’s misappropriation (privacy) statute had been invaded. In the purported biography, the author took great literary license, dramatizing incidents, inventing conversations, manipulating chronologies, attributing thoughts and feelings to Spahn, and fictionalizing events. The invented material depicted the Spahn’s childhood, his relationship with his father, the courtship of his wife, important events in their marriage, and his military experience.
 
The book’s author argued that the literary techniques he used were customary for juvenile books. The defendant never interviewed Spahn, any members of his family, or any baseball player who knew him. The author’s research was comprised of newspaper and magazine clippings, the veracity of which he rarely confirmed. The court held that the New York privacy statute protects a public person from fictionalized publication only if the work was published with knowledge of the falsification or with reckless disregard for the truth (actual malice). In the Spahn case, the court found that the author knowingly incorporated a lot of fictional and false material.
 
So, the precedent became that factual reporting of newsworthy persons and events is in the public interest and is protected, but the fictitious is not. But what happens when facts and fiction are combined, which is common?  Many films are based on true stories, but take considerable creative liberties in telling their tales, including fictionalizing persons and events to make the story more compelling.
 
The Reporters Committee for Freedom of the Press, as well as HBO and the Motion Picture Association of America, Inc. (MPAA) have filed petitions to submit amicus briefs in support of Lifetime and have asked for an immediate review by the Court of Appeals. They argue that the decision is inconsistent with other New York and other state decisions involving expressive works, and with protections for freedom of speech. They contend it threatens to chill creative expression and deter the creation of films and television shows based on real people and events.
 
The full decision can be read here:
 
Reporters Amicus motion: 
 
Lifetime’s motion:
 
HBO and MPAA motion:
​

Actresses often complain about age discrimination in the movie business. Even relatively young actresses claim they have experienced discrimination. Olivia Wilde was reportedly denied the role of Leonardo DiCaprio’s wife in The Wolf of Wall Street when she was 28 years-old, ten years DiCaprio’s junior, with the role given to Margot Robbie who was only 23. [1]

It is not always easy to determine the age of an actor by their appearance at a time when plastic surgery is ubiquitous.  One frequently used source to determine an actor’s age is IMDb.com and its professional version, IMDb pro.com, which are widely used for casting in the entertainment industry. Consequently, many actors do not want to reveal their true age on their IMDb profiles because they believe it may put them at a competitive disadvantage.

In 2013, actress, Huong “Junie” Hoang, initiated a suit   against IMDb based on age discrimination in the case of Huong Hoang v. Amazon.com, Inc. [2]As an aspiring actress, Hoang had signed up for IMDbPro in 2001 but wanted to conceal her real age of 30 so she represented that she was 23. In September 2007, she decided that she no longer wanted the false birth date, and began contacting IMDb, asking that her birth date to be removed from her profile. IMDb informed her it would take measures to remedy any confirmable inaccuracies. She then sent IMDb a number of documents purporting to show her listed birth date was incorrect, including a fake Texas ID, but none of these documents satisfied IMDb, which refused to remove her date of birth from her profile page.

Last year SAG-AFTRA advocated the passage of AB 1687 which was part of effort to mitigate age discrimination in Hollywood by requiring subscription-based entertainment casting databases like IMDb to remove subscribers’ date of birth information upon request. The bill was also backed by the Teamsters, DGA, WGA-West, the Association of Talent Agents, and AARP of California. The law passed through both houses of the California Legislature with an overwhelming majority. The law took effect on January 1, 2017. AB 1687 permits anyone who pays for IMDb Pro to have a date of birth or age removed from an IMDb profile.

IMDb.com, which is part of Amazon.com, has contested the constitutionality of the law and has filed a lawsuit against the State of California in United States District Court for the Northern District of California (Case No. 16-cv-06535-VC) seeking to have a judge void the law. IMDb.com argues that this law does not prohibit the discriminatory use of information, but forces the removal of factual information from the public, which it says is unconstitutional censorship.  

The court found the government had identified a compelling goal – preventing age discrimination in Hollywood. But the government had not shown how the law was necessary to advance that goal. In other words, the court found that it was unclear how preventing one website from publishing age information could meaningfully combat discrimination. Consequently, on February 22, 2017 United States District Judge Vince Chhabria granted the request for the injunction which will stop enforcement of the law while the lawsuit is pending. 

[1] http://www.jdsupra.com/legalnews/25-is-the-new-40-california-s-ab-1687-15211/

[2] Huong Hoang v. Amazon.com, Inc., 2013 U.S. Dist. LEXIS 190477 * (W.D. Wash. Mar. 18, 2013)

Mark was interviewed for Blog Talk Radio by Carole Dean on her show The Art of Film Funding.

The interview explored the details of film distribution.  Click to Listen. 

If you have a website that exhibits third party content, you should make sure you are in compliance Digital Millennium Copyright Act (DMCA) regulations. The rules have recently changed as the copyright office has implemented a new online registration system that replaces the prior paper system. Agents designated before December 1, 2016 must re-register before December 31, 2017 and renew such designations every three years to maintain safe harbor status.
 
The DMCA safe harbor provisions can shield you from liability for copyright infringement in the United States. So if you allow others to post comments, photos or other content on your website, and those materials infringe another person’s copyright, you can avoid liability if you follow the DMCA procedures. This is important because if you allow someone to post material on your website, and you don’t comply with these rules, you could be liable for copyright infringement even though you did nothing improper yourself.
 
To obtain the protection offered under the DMCA, you need to include on your website a DMCA notice informing visitors how to contact you to notify you of the presence of infringing material on your site. You will need to designate a person who will be your agent to receive notices of infringement and register that agent with the US Copyright Office's using their new online registry system.
 
A sample notice for a website is reproduced below which you can borrow from to create your own notice. Where there is a blank at the end after “Copyright Agent,” fill in your name, address, email and contact info of the person you are authorizing to accept any notices. You can serve as your own agent. This notice can be included in your terms and conditions portion of your website.
 
Then you need to register the agent with the copyright office. Go to: https://www.copyright.gov/dmca-directory/
 
There is a 6 dollar filing fee that can be paid online by credit card.
 
The copyright office has a help page with useful instructions at https://www.copyright.gov/dmca-directory/help.html
 
Sample Notice for website:
 
Notice and Procedure for Making Claims of Copyright Infringement
If you believe that your work has been copied in a way that constitutes copyright infringement, please submit your complaint with this information:

• A physical signature of the person authorized to act on behalf of the owner of the copyright interest;
• A description of the copyrighted work that you claim has been infringed upon;
• A description of where the material that you claim is infringing is located on the site;
• Your address, telephone number, and e-mail address;
• A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Our Copyright Agent for notice of claims of copyright infringement on its site can be reached as follows:
Copyright Agent:  ______________________ 

The death of actress Carrie Fisher raised the issue of whether her name and likness could be resurrected after her death for future Star War movies. 

Virtual characters have been used before such as when when Universal Pictures combined CGI and previous footage for Paul Walker's role in 2015's "Furious 7" after his  death in a car crash.

Disney gave a supporting role to a digital version of  actor Peter Cushing in Rogue One, after he died in 1994.

Read the full article here

Distribution of independent films has grown increasing difficult and complex. Today, a filmmaker needs to not only understand how to use social media to promote a film, but also needs to carefully orchestrate varied revenue streams essential to recoupment. These new sources include the Tugg theatrical platform, various Video On Demand (VOD) outlets, Electronic Sell-Through (EST) revenue, direct DVD sales from Amazon, and licensing to Subscription Video on Demand (SVOD) outlets such as Netflix and Hulu. Each year, a handful of films are auctioned off to the highest bidder at Sundance; however, for most films, the producer struggles to figure out how to split rights to maximize return. Reliable information about how best to distribute one’s film and how much can be expected from each source is hard to find.

That is why it is refreshing to be able to access this information for several documentary films. Last September at the International Documentary Association Getting Real Conference, Jon Reiss, the Senior Lab Leader at the IFP Filmmaker Labs presented a seminar called “So Your Film Didn’t Get into Sundance: Navigating the New Distribution Landscape.” The seminar included three documentary case studies: Hooligan Sparrow by Nanfu Wang, which follows a maverick activist Ye Haiyan in southern China as she seeks justice in the case of school girls allegedly sexually abused by their principal (which was at Sundance); Touch the Wall by Grant Barbeito & Christo Brock, which follows two Olympic Swimmers as they prepare for the 2012 London Olympics; and Age of Champions by Christopher Rufo & Keith Ochwat about seniors who compete in the National Senior Olympics.

Touch the Wall used social media and Kickstarter to raise awareness one year before the film premiered. The producers also partnered with various swimming organizations like USA Swimming to promote the film, which premiered at the Denver International Film Festival. The film was briefly released in NYC followed by 363 Tugg screenings, with an average of 153 attendees each and grossing $712,993. The producer also sold $169,000 of DVD’s from their website and through Amazon.com. The film is currently available on Amazon instant video, Vimeo, PlayStation, Google Play and Vudu.

These case studies disclose in detail with real numbers how these films were marketed and distributed and the amount of revenues from each window. This information is rarely made public.
​
You can access a free download of the presentation here: LINK

Dealmaking is the first "self-defense" book for everyone working in the film and television industry. Addressing a general, non-attorney readership, it is a fascinating, highly accessible guide to current entertainment law's peculiarities, "creative" practices, and practical applications.

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.  The first edition won the 1995 Kraszna-Krausz Foundation Book Award. Winning books have been those which make original and lasting educational, professional, historical and cultural contributions to the field.

Purchase your copy today!