Filmmakers often ask if they need a release when they are shooting in public and capturing the images of people without their consent. Usually, persons photographed in a public place do not have a legal right to stop you  from taking pictures of them to use in your film. But that is not always the case depending on the circumstances and how you use the images.  If a  photo is used, for instance,  to promote the sale of spaghetti sauce, you likely will  need to secure a release because while you are not violating the subjects’ rights of privacy by taking their photo, you may be violating their rights of publicity by using their photo to sell merchandise. That  same photo if used on the front page of New York Times in a newsworthy context would not provide grounds for invasion of privacy or right of publicity. However, if the subject was mistakenly identified to readers as a criminal, you might be liable for defamation.

Whether one needs a release or not is often a complex issue.  When evaluating whether or not you need a release, you should consider:

Right of Publicity

The right of publicity recognizes the right of every person  to control the use of his or her name and likeness. Because publicity rights are governed by state law, they vary across the nation.[i]  Up until 2020,  New York only recognized this right for those living, and  not for the deceased.  In other words, this right  was considered personal,  and when a person  died, the right expired  and did not pass to one’s  heirs.  However, on November 30, 2020, the governor signed into law a provision, which for the first time, adds a postmortem right in  New York  which lasts  for 40 years after death. The new law[ii] also  prohibits  the use of a “deceased performer’s digital replica in a scripted audiovisual work as a fictional character or for the live performance of a musical work . . . if the use is likely to deceive the public into thinking it was authorized by the person” or their heirs. This provision allows an exception when there is  a “conspicuous disclaimer in the credits” and in advertisements stating that the use is not authorized.  The law, like many other state laws,  is limited to those persons domiciled in the state  at the time of their death. A domicile is a person’s permanent residence.

In California, Civil Code Section 3344.1   provides that the right of publicity descends and lasts for 70 years after the death of the person. A similar statute, Civil Code Section 3344, prohibits the unauthorized use of the name, voice, signature, photograph, or likeness on or in products, merchandise, or goods for those who are living.  But these rights, like the laws in other states, do not apply to use of a photo for newsworthy purposes. Otherwise, subjects could prevent any critical coverage of their activities. When one person’s right of publicity conflicts with another person’s rights under the First Amendment, the rights under the First Amendment are often, but not always, the paramount right.

Defamation

Defamation is a communication that harms the reputation of another, so as to lower him in the opinion of the community or to deter third persons from associating or dealing with him. For example, those communications that expose another to hatred, ridicule, or contempt, or reflect unfavorably upon one's personal morality or integrity are defamatory. One who is defamed may suffer embarrassment and humiliation, as well as economic damages, such as the loss of a job or the ability to earn a living.

The law of defamation can be complex  because the common law rules (judge made law or law of precedent)  that have developed over the centuries are subject to constitutional limitations if they conflict with rights under the First Amendment. 

If the person defamed is a public figure or public official,  the individual has to meet a higher standard and must show that the defamer acted with actual malice, that is, the defamer knew the statement was false or acted in reckless disregard to its truth.[iii] A private individual, on the other hand, may need to only show negligence to recover.

There are a number of defenses and privileges to defamation.  Consequently, sometimes a  person can publish a defamatory remark with impunity. Why? Because protecting a person’s reputation is not the only value we cherish in a democratic society. When the right to protect a reputation conflicts with a more important policy like letting people express the truth,  the defamed person may be denied recovery for the harm suffered. Therefore, if your remarks hurt someone's reputation, but your remarks are true, you are absolutely privileged. An absolute privilege cannot be lost through bad faith or abuse. So, even if you defame another person intending to harm them, you will be privileged if the statement is true. Truth is an absolute privilege because our society values truth more than a person's reputation. But sometimes the burden of proving the truth is on the defamer.

Rights of Privacy

The United States Constitution does not explicitly mention a right of privacy. According to the United States Supreme Court, however, such a right is implicit in the Constitution and the Bill of Rights. The right of privacy has been defined as the right to live one’s life in seclusion, without being subjected to unwarranted and undesired publicity. In other words, it is the right to be left alone.

Like defamation, the right of privacy is subject to constitutional restrictions. The news media, for example, is not liable for defamatory statements that are newsworthy unless they are made with knowing or reckless disregard of the truth (i.e., actual malice). Unlike defamation, a cause of action for invasion of privacy does not require an injury to one’s reputation.

Many defenses to defamation apply to invasion of privacy, but truth is not a defense. Revealing matters of public record cannot be the basis for an invasion of privacy action because the information is already public. Express and implied consent are also valid defenses. If you voluntarily reveal private facts to others, you cannot recover for invasion of your privacy.

If a subject has a reasonable expectation of privacy, such as when they are in a bedroom  or bathroom, taking a picture of them may well be a violation of their rights. On the other hand, if you go out in public view and wear a revealing dress, you may not be able to claim your right to privacy was  invaded  because you voluntarily displayed  yourself in that manner to the public. 

Usually,  a production company cannot enter or film the interior of a private residence without the permission of the occupant. Doing so  would be considered trespass.  The exterior of a building and the land surrounding it, however, can usually be filmed or photographed if it is visible from a place open to the public. However, this is more complicated in California because it has enacted an anti-paparazzi law [iv] that prohibits the filming, photographing, or recording of private property, even from a public place, such as a street or sidewalk, if made possible only with technologically advanced equipment and the subject has a reasonable expectation of privacy.  A filmmaker can be liable if he attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of a person  engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass.

Trademarks

What if you film a scene with a character drinking a bottle of Coca-Cola and the company’s logo is clearly visible? Do you need a release? Usually, this type of use would not give rise to liability because you are not using the Coca-Cola logo as a trademark to market soda or your movie. However, if you used the logo to indicate to the audience that somehow Coca-Cola  was a sponsor or was affiliated with the production, then that would require a release.

To prevail on a trademark infringement claim, a plaintiff must show that it not only has a valid, protectable trademark,” but that the infringer’s use of the mark is likely to confuse consumers as to the origin of the product or service.  

Usually,  showing trademarks in passing does  not infringe the trademark owners’ rights.  However, if you show a character drinking their brand of soda,  and then going into convulsions, that might be considered disparagement of the product, which is akin to defamation of a person. That might create liability separate and distinct from violating any trademark rights.

Copyright

Suppose you capture an image with your camera and that image is of artwork that is protected under copyright law?  While reproducing artwork might be considered copyright infringement, if the image was shown only briefly in the background, it might be considered a fair use. 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.

In applying these factors to a specific factual situation, it can often be difficult to predict whether a use will fall within the doctrine. In one case,[v]  a court found that the use of numerous clips from movies produced by American International Pictures (AIP) in a documentary about AIP’s founders was likely a fair use because while the original films aimed to entertain their audience, the documentary was meant to educate the viewing public of the impact the founders  had on the movie industry.

Because the question of whether one needs a release often requires a complicated assessment, it is often the best policy to obtain a release if you can.  In order to minimize liability, filmmakers should consider the following guidelines:

1. Be especially careful if you disclose information about private living individuals who are not public figures or public officials.
2. Obtain written releases from people on-camera that might be identifiable to an audience whenever possible.
3. Purchase Errors & Omissions Insurance (E & O Insurance) for your company and add yourself as a named insured.
4. Avoid the use of hidden cameras and microphones.
5. To the extent possible, base the information in your film on matters of public record, such as court transcripts. Revealing matters of public record cannot be the basis for an invasion of privacy action because they are already public.
6. Have an experienced attorney review your completed film before it is released.

[i] A summary of different state laws regarding right of publicity can be found at: https://rightofpublicity.com/statutes

[ii]https://www.nyassembly.gov

[iii] N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).

[iv] Cal.Civ.Code § 1708.8

[v] Hofheinz v. AMC, 147 F. Supp. 2d 127 (E.D.N.Y. 2001)

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.

Continuing Legal Education through VLA: Seven (7) New York Continuing Legal Education credits awarded for attorneys: 4 Areas of Professional Practice Credits, 2 Skills credits, and 1 Ethics credit. This program qualifies as “transitional” for newly admitted attorneys.

​Participants will receive an email in advance of this workshop with instructions to access. Please, therefore, make sure that you have regular access to the email address you use to register.

Date And TimesThu, Apr 29, 2021, 10:00 AM –1:30 PM PDT
Fri, Apr 30, 2021, 10:00 AM –1:30 PM PDT


While the seminar in the past a been a full day seminar, it is broken into two parts for the webinar of 3.5 hours each day. 

For more information on this program, please contact VLA at registrations@vlany.org.

​More info and to Register.

Cuyuga Nation Loses Defamation Lawsuit Against Showtime’s Billions
 
The Indian tribe Cuyaga Nation and tribal council member Clint Halftown sued Showtime alleging that an episode of the television series Billions falsely portrayed them as having been involved in an illegal casino land deal, bribery of a public official, and blackmail. Defamation is a communication that harms the reputation of another so as to lower the person in the opinion of the community. 

In July 2020, New York Trial Judge Kathryn E. Freed dismissed the suit, finding the Cayuga Nation cannot sue for defamation in response to the series because the allegedly defamatory material involved the tribe as a governing body, not its individual members.
This case is known as a libel-in-fiction case, where a story allegedly defames a person even though it is fictional. Here, there was a character identified in the show as "council member Jane Halftown" who is portrayed as engaging in criminal behavior. In real life, there is a male member of the council with the name Clint Halftown.

The court found that the allegedly defamatory matter in the episode was not "of and concerning" Halftown, because the fictional character Jane Halftown was not "so closely akin" to plaintiff Clint Halftown that a viewer "would have no difficulty linking the two.” Moreover, a disclaimer plays during the end credits stating “The events and characters depicted in this motion picture are fictitious. Any similarity to actual persons, living or dead, or to actual events, is purely coincidental." On February 23, 2021, the dismissal was upheld on appeal by the New York Appellate Division.
​
In 1964, in the landmark case of New York Times Co. v. Sullivan, the U.S. Supreme Court stated that the requirement of a defamatory publication must be published in such a manner that they “reasonably relate to specific individuals."   The defamatory statement need not name or identify the plaintiff specifically, but the plaintiff bears the burden to show that the publication was "of and concerning" him.   For example, extrinsic facts can be used to connect the statement to a plaintiff where the plaintiff is not identified by name.  When the publication identifies a group, the statements "must reasonably relate to a certain individual member or members."   Statements about a large group as a whole—without more specificity—are usually not actionable.  
 
Filmmakers can protect themselves by making sure fictional characters cannot be mistaken for real people. They can give characters unusual names that no living individual would have, such as “Pussy Galore” in the James Bond film Goldfinger. They can check the phone book to see if any person with their character's name reside at the location portrayed in their story. If there is a person in that community with the same name or a similar one, they can consider setting the story in a fictional locale.  Also, filmmakers should always remember to add a disclaimer stating that any resemblance to persons living or dead is purely coincidental.
 
Read the case. 

After 14 years of negotiations, the Copyright Alternative in Small-Claims Enforcement Act (CASE) was signed into law by President Trump. The legislation was buried in the omnibus bill that includes $900 billion in coronavirus relief and stimulus spending, and another $1.4 trillion to run the government through September. This new law means that those who post copyrighted material without permission can face up to $30,000 in penalties.  

The Act essentially creates a small claims process that makes it easier for photographers, designers, songwriters, and other creatives to protect their work against copyright infringement. The new law creates a Copyright Claims Board within the Copyright Office that will have the authority to adjudicate copyright infringement claims unless the defendant receives notice and opts out. The Board may issue monetary awards based on actual or statutory damages. The parties bear their own attorneys' fees and costs except where there is bad faith misconduct.

The Board’s final determination precludes relitigating the claims in court or at the Board. Parties may challenge a Board decision in federal district court only if (1) the decision was a result of fraud, corruption, or other misconduct; (2) the Board exceeded its authority or failed to render a final determination; or (3) in a default ruling or failure to prosecute, the default or failure was excusable.

The law was sponsored by Representative Hakeem Jeffries, a New York Democrat with 152 co-sponsors (107 Democrats and 45 Republicans in the House). But it is somewhat controversial and has been harshly criticized by the Electronic Frontier Foundation  which opines that only Big Tech Internet companies will have the resources to be able to keep on the “right” side of the law.  It also creates new ways for major studios and record labels to go after those who use their content without permission.

The Act includes recommendations set forth in the Copyright Offices Small Claims Report issued in 2013. That report mentioned that many artists could not afford the costs of obtaining counsel to bring a federal court lawsuit to protect their work.  

Read the full text of the act here. 
 

Actor Johnny Depp has lost his lawsuit against the British newspaper The Sun, which had claimed he had beaten his former wife Amber Heard.
 
The couple met in 2011 during production of "The Rum Diary," and married in 2015. She was 22 and he was 45. Heard filed for divorce about a year later. She had obtained a temporary restraining order against Depp after claiming he had struck her. However, she later withdrew the claim and in 2017 agreed to a 7 million dollar divorce settlement.
 
Defamation is a communication that harms the reputation of another, so as to lower him in the opinion of the community or to deter third persons from associating or dealing with him. For example, those communications that expose another to hatred, ridicule, or contempt, or reflect unfavorably upon one's personal morality or integrity are defamatory. One who is defamed may suffer embarrassment and humiliation, as well as economic damages, such as the loss of a job or the ability to earn a living. There are a number of defenses and privileges in defamation law in both the United States and the United Kingdom. Perhaps the most important privilege is truth.
 
If your remarks hurt someone's reputation, but your remarks are true, you are absolutely privileged in the United States. An absolute privilege cannot be lost through bad faith or abuse. So, even if you maliciously defame another person, you will be privileged if the statement is true. Truth is an absolute privilege because our society values truth more than a person's reputation.
 
In general, it is easier for a plaintiff to prevail in the United Kingdom on a defamation claim than in the United States. In the United Kingdom the burden of proof to prove the libel (written defamation) is substantially true rests on the defendant. In the United States, the burden is on the plaintiff who has to prove the statement is false in cases involving matters of public concern or public figures, and  that it was made recklessly or intentionally knowing it was false. This is why celebrities rarely sue for defamation in the United States.
 
Because this case was under United Kingdom law, the burden was on The Sun newspaper to prove that the defamatory remark was true. And it was successful at that task by introducing photos, audio recordings and text messages as evidence that Depp beat his wife, causing her significant injuries, and on occasion, leading her to fear for her life. In addition,  Heard testified that he had assaulted her.
 
Depp admitted long-term problems with drugs and alcohol but said the allegations that he was violent toward Heard were "completely untrue." Depp described a troubled childhood. His home life, he said, was not stable or safe and he had been beaten as a child for trivial matters. He said that experience had turned him against violence of any sort. Heard also gave an account of a troubled home life. She said that both her parents were alcoholics. She said that her father had been violent to her mother.
 
After a long trial, the court found for the publisher on the basis that the statement alleging Depp had beaten Heard was substantially true. Depp's attorneys claim they plan to appeal. He is also suing Heard in a U.S. court, after she published an op-ed in The Washington Post identifying herself as a survivor of sexual and physical violence.
 
Read the Full Decision. 
 

Mark was recently interviewed as a top professional by Backstage Magazine.  He discusses the role of a production lawyer.  The article is titled: How Entertainment Lawyers Assist Filmmakers + Legal Issues You Should Know About.  

Read the complete article here.

​We are moving to Santa Monica.  Effective September 1, 2020 we will be at our new  offices in Santa Monica.
 
Our new address will be:
 
Law Offices of Mark Litwak & Associates
201 Santa Monica Blvd., Suite 300
Santa Monica, CA 90401
Phone: (310) 859-9595
E Mail: Law3@marklitwak.com
Website: www.marklitwak.com
 
Our phone numbers and email remain the same.

​Congratulations to our client Walden Media which produced the The Baby-Sitters Club which premieres on Netflix on July 3, 2020. We were pleased to provide production legal services on this series.
 
The series has been garnering rave reviews. See, NY Times. https://www.nytimes.com/2020/07/02/arts/television/review-the-baby-sitters-club-netflix.html
 

Christian Charles, a writer and director, and well-known comedian Jerry Seinfeld, had collaborated on various projects. During one of their conversations, Charles suggested to Seinfeld that they create a television show based on the concept of two friends talking and driving. In 2011, Seinfeld allegedly mentioned to Charles that he was considering a talk show about "comedians driving in a car to a coffee place and just 'chatting,'" as his next project. They then purportedly agreed to work together on the endeavor.
 
Charles then generated a treatment which he claims captures the "look and feel" of Comedians in Cars Getting Coffee as well as a "synopsis, camera shot list with visual camera angles, and a script." He claimed he had an understanding with Seinfeld that his company would produce the series and was concerned when Seinfeld brought in a subsidiary of Sony Pictures Television to produce it. According to Charles when he requested compensation and a share of backend profits, Seinfeld objected to giving him anything other than paying him to direct some episodes.
 
Charles alleges that "Seinfeld did not claim authorship or ownership of the Pilot" even though "Charles had often reminded Seinfeld" that the idea for the show came from him.
 
In 2017, Netflix inked a lucrative new deal for the show, leading Charles to contact Seinfeld. Seinfeld's lawyer responded, stating that Seinfeld was the creator and owner of the show.
 
Seinfeld and other Defendants went on to produce and distribute the show without giving any credit to Charles. The Netflix deal has been reported to have a $100 million-dollar production budget with Seinfeld earning about half a million dollars per episode. More than 80 episodes have been produced. Charles filed suit in 2018 claiming among other things, copyright infringement.
 
Seinfeld argued that this lawsuit was a frivolous attempt to capitalize on the success of the show and that Charles requested compensation “five-and-a-half years after the Show premiered” “claiming for the first time to be its creator. As far back as February 2012, Seinfeld claimed he had rejected Charles's requests and made it clear that his involvement would be as a paid hand on a work-for-hire basis. Moreover, the show premiered in July 2012 without crediting Charles, at which point it should have been clear to Charles that Seinfeld was disputing any copyright claim he might have.
 
This delay, Seinfeld argued, barred Charles claims. Claims under the Copyright Act must be brought within three years after the claim has accrued" under 17 U.S.C. § 507(b). The District Court agreed, and on appeal, the Court of Appeals affirmed that dismissal. 
 
This case is a good example of why it is important that if you have a claim, do not delay pursuing it.
 
Read the District Court opinion.
 
Read the Court of Appeals decision.

California has given the green light to resume production under new health protocols meant to minimize transmission of the Coronavirus. The protocols were agreed to by a task force of studios and union officials who drafted a 22-page White Paper setting forth guidelines.
 
However, shooting is subject to approval by county public health officials at the locations for each shoot.  The changes in production include elimination of buffet-style meals, greater sanitation and disinfection of equipment, and social distancing. 
 
Other changes include:
 
Disposable masks will need to be replaced each day and reusable masks will be cleaned each day.  There will also be increased access to hand washing stations and sanitizer.
 
Regular, periodic testing of the cast and crew will be used to mitigate the risk of the spread of COVID-19.
 
The use of face coverings when feasible on set or at production/studio facilities workspaces.
 
Crew lists, call sheets, production reports and other similar documents should be electronic, not paper, whenever possible.
 
Mealtimes should be staggered to avoid the gathering of large groups in the same location at the same time.
 
One or more COVID-19 Compliance Officer(s) with specialized training, responsibility and authority for COVID-19 safety compliance and enforcement will be in the workplace at all times during work hours. These officers shall be in charge of monitoring physical distancing, testing, symptom monitoring, disinfecting protocols, and PPE education.  All personnel will  have access to the COVID-19 Compliance Officer(s)  and know how to contact them.
 
Download the full white paper report here.
 
Download the Covid-10 Health Department guidelines here

I am again presenting  my Risky Business seminar for the New York Volunteer Lawyers for the Arts. However, this year because of the Covid-19 crisis the seminar will be in the form of an online webinar on Zoom. The seminar will be presented over two days, 3 hours each day. For those of you who have wanted to attend this seminar but could not come to New York, now is your chance to participate remotely.
 
This comprehensive seminar is for new attorneys, attorneys transitioning to entertainment law, and filmmakers. It explores how independent films are financed and produced.
 
Particular attention will be paid to how producers and filmmakers can protect themselves, including:
 
·       Criteria for selecting a distributor;
·       Investigating distributors;
·       Adding contract provisions and understanding terms;   
·       Dealing with investors, and more

Other topics will include compliance with state and federal laws regarding investors, retaining an attorney, producer's rep, and publicist, and confirming awards and enforcing judgments.

Participants will receive a 149-page detailed handout with a distribution contract, articles, forms and a self-defense checklist, as well as a 150 slide powerpoint of the presentation. 

This program is a two-day online seminar offering up to 7 Continuing Legal Education credits to attorneys.

Dates and Time:
Thursday, June 18, 2020:  1 - 4:30 PM EST
Friday, June 19, 2020: 1 - 4:30 PM EST
 
​For additional information and to register.

Mark was recently interviewed on the National Public Radio's program Marketplace about the exhibition of films on Amazon Prime that were selected to be screened at the SXSW festival, before it was cancelled due to COVID-19.
 
While Amazon is to be commended for offering this showcase, participating in such a virtual film festival is a mixed blessing for filmmakers.  For some filmmakers, especially those with short films, it might give them exposure they otherwise would never receive, plus a fee for participating.  However, for many filmmakers this offer poses a dilemma, because participating could preclude them from appearing at other top festivals in the future and may make it more difficult to secure a deal with a distributor or sales agent. Moreover, it would likely eliminate any chance for a theatrical release and the revenue that might result. Perhaps that is why so few filmmakers elected to participate. The Amazon screenings are comprised of only 39 films including only four narrative features and three documentary features.  
 
One's leverage in negotiating a distribution deal depends on whether distributors perceive the film as desirable. There is no substitute for having your film screen at a top festival in the presence of acquisition executives who can witness firsthand an audience enjoying your film. Moreover, if your film is shown at a top tier festival, you may also benefit by having your film reviewed by the New York Times or other major media. Most publications only review films screened at such festivals, or films that have already secured distribution and are about to be released in theaters.  A positive review from a major publication can in turn attract distributors and assist in marketing your film.
 
Not only do top festivals compete to premiere the best films, many distributors also demand to show films first. It usually is next to impossible to convince theaters to exhibit a film that has already been shown on television or Video on Demand. Indeed, most theaters demand that films they exhibit are not shown in other media for 90 days after the theatrical run ends. Some platforms like Netflix may require an exclusive first run to consider acquiring a film.
 
The SXSW virtual film festival will stream from April 27 to May 6, 2020, with 39 shorts and features being shown free to the public. A list of the films being streamed can be found here.
 
Marketplace  can be listened to here.

IndieWire covers the changes to production insurance and what productions will be like after the Corona virus. Read article here.