I am once again presenting  my Risky Business seminar for the New York Volunteer Lawyers for the Arts. However, this year 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, March 17, 2022   1 - 4:30 PM EST
Friday, March 18, 2022  1 - 4:30 PM EST


For more information and to register click here.

There are different ways  to finance a film.   One path is to present a package of script, principal actors,    director, and budget  to a major studio like Warner Brothers  with a  request that they  finance the project.

If the studio  says yes, keeping  in mind that only a small percentage of the projects pitched are approved,  the studio  will  provide the entire  budget. The film is fully financed, and the  budget will include a production services fee of up to  10% to compensate the  producers for their services.   Producers may also be  able to negotiate bonus, deferment, and/or profit participation.  The studio  will own the movie and usually will have the right to make changes and control the final cut of the film. Nowadays major streamers also enter into similar deals.

In this  scenario, there is very little financial risk to the producer, because the studio   is providing all the funds needed.   Moreover, there is often  a completion bond and a contingency line of about 10% of the budget to cover any unanticipated expenses or  overages. If you are a producer with a track record, this is likely the quickest  way to fund your project.  But many aspiring  producers cannot  even get  in the door to pitch their projects to a major studio or streamer.

An alternative way to pay for a film could involve private equity and/or debt financing.  This is where the producer raises funding  from private investors and/or pre-sells distribution rights to  various territory buyers. For example,   a German distributor wanting to distribute  the film in its country might enter into a license agreement which could be  collateral for a production loan. This is a more difficult path to take because there are a lot of hurdles that have to be overcome before funding is secured. 

These deals require a  foreign distributor to sign  a contract to license a movie for distribution in their country even though the movie does not yet exist.  By pre-buying the movie, the buyer  knows that  when the movie is completed they will not have to compete with other buyers for the rights to distribute the film in their territory. Pre-sale buyers will usually require a completion bond before committing to license a movie. To read more about pre-sales go to: link  

Whether relying on private investors or bank loans based on pre-sales, a producer cannot commence production until they  have assembled a  package including the script, stars, director, and  budget. Writing a great script can take years of effort. Once the script is ready, the producer then assembles the  other elements, namely the lead actors, director, and  budget. However, investors, pre-sale buyers, and directors often  want to approve  the script, budget, and stars before making a commitment.
The script is the blueprint for making the movie.  By  analogy, when a builder wants to erect  a skyscraper, they hire an architect, draft  blueprints, obtain  whatever permits are needed, and if everything is approved and ready to go, they order materials and start construction.

The time for assembling these elements is called development. When these elements are secured,  you begin pre-production by renting  equipment, hiring  crew, and securing  locations. On the  first date of principal photography the cameras roll, you commence  production.

Investors who are willing to invest early in development take a lot of risk because if the script does not turn out well, or the producer  cannot attract the other elements needed, their investment can be a complete loss. If the project never goes into production,  there is no potential source of revenue to pay back investors. Therefore, development investors are often compensated generously because they are taking more  risk.
Those who invest  in production after completion of development  also take considerable risk. Their funds are often  held in escrow and only if certain conditions are met are they released to be used to produce the film.

Investors are often concerned about what happens if the producer runs out of money before production has been completed and the film delivered.  In order to provide  comfort, the producer will often secure  a completion bond. This is a special type of insurance that provides  completion funds  if a movie  goes over budget such as when the production encounters unforeseen circumstances such as bad weather  or a star gets sick. Or, perhaps the worst-case scenario, the star dies without completing his or her role.  In such a scenario, the completion bond company steps in to supply enough funds to finish the film. Or if the project cannot be completed, it will reimburse the investors their contributions.  Completion bonds are expensive  usually  costing  2-3% or more of the budget. Some companies may rebate part of this fee if no claims are made.

Completion bond companies are selective in which projects they are willing to insure. They want  their premium dollars but don’t want to take unnecessary risk. Therefore, they impose many  conditions before they will issue a completion bond. The bond company have staff experts in budgeting and production, and they will make sure the budget is a realistic estimate of what it will cost to make the movie. The “strike price,” or “production price” is the amount that the guarantor believes will be needed in order to complete and deliver the film. This includes above and below the line costs, fringes, insurance and financing costs, and the completion bond guarantor’s fee and the contingency allowance.

The contingency line in the budget is usually ten percent of direct costs to cover unanticipated costs. So, a $20 million film might allocate  up to $2 million dollars for these unforeseen  overages.  The  bond is usually  issued right before production commences  because a lot of documents and approvals need to be secured. The bond company wants to see signed contracts with the director and the stars firmly committing them to perform in the movie.  An actor expressing interest in the  film is not the same as one signing a  binding contract. If the production is funded in part by a bank loan, the bank will not disburse the funds until the completion bond company issues the bond.

The bond company will also insist that the producer buy  other insurance to cover equipment breakdowns, liability insurance for accidents, cast insurance, workers comp insurance, negative insurance to ensure the film negative or hard drive is not defective and so forth.

The bond company will review the credentials and background of all the key people making the movie, such as the department heads, director, producer, and principal cast. If your star has a history of drug use, or being unreliable, that person may not be bondable, and the bond company might  refuse to insure the production. Stars may also have to submit to  a medical exam.

In the event the bond company agrees  to bond the film, it is given extraordinary powers. The bond company can  fire the director if he or she goes over budget. The bond company is liable for overages, so if a director is taking more time than expected, he can be replaced.

This process can be  stressful for the producer because so many deals need to be finalized quickly. What  happens if the producer signs  a deal with a star and  guarantees  a one million-dollar fee  with a start date of July 1, and then is  unable to secure a  co-star, director, or other essential element of the package? The producer could lose the star, have to pay her fee, then start the process over.

Movie  stars usually will not agree to perform in  a film without the producer committing to pay them. That is because if you are a star like George Clooney, you are offered hundreds of projects every year. Even an actor who is a workaholic only has time to  perform in a few movies each year because each one takes several months to shoot, plus rehearsal time and  post-production for looping after the shoot. 

So, if you offer Barbara Streisand a role in your movie, and she wants to do it, she will not firmly commit to it until you give her a start date and guarantee that she will be paid her fee, regardless of whether or not you actually commence production. Because Barbara Streisand knows once she signs a contract with you, if the next day she is offered the role of a lifetime, in a movie about something she cares deeply about, she will have to turn that job  down. So, she is not going to firmly commit to be in your movie until you have secured the entire production budget or at least  commit to pay her regardless of whether you can assemble all other elements needed to go into production. Moreover,  if you are an independent producer, you will have to make a substantial deposit in an escrow account for her to sign a contract.  If she is contracting with a major studio, she might not require this, but for an independent producer, her agents will insist on  a deposit.  And stars may also require approval over the selection of the director, co-star, and any script changes.

Arranging financing for film projects is often difficult even for experienced producers. Unlike some products, no one can really predict the potential success of a film so there is always a lot of financial risk that has be taken when producing a film.
 

The United States District Court has dismissed a claim by Plaintiff Firooz Zahedi, a photographer who took several iconic photographs of Uma Thurman in her role in the Quentin Tarantino film Pulp Fiction. At the time of the photo shoot, Miramax paid Zahedi $10,000, although it is unclear what rights Miramax obtained as neither party was able to produce a signed agreement showing the terms of their deal.
 
Miramax claimed it created the concept for the shoot including her pose and hired Zahedi to execute its vision and purchased all the rights to the photo. The photographer disagreed, claiming he was working for less than his customary fee and there was no work for hire agreement that would vest complete ownership in Miramax. Zahedi alleged he orally licensed the right to use the photograph for a poster to promote the movie but did not otherwise grant Miramax rights to use the photo. In 1994, the poster won a “Key Art” award from the Hollywood Reporter and Zahedi was credited as the photographer. He used the photo he took for the back cover of his book of photographs and has sold prints of the photo at galleries. A 1994 script for the film published by Miramax Books, identifies the photograph as Copyright Firooz Zahedi. The image has also appeared on T-shirts, socks, and other merchandise.
 
Miramax moved for summary judgment, arguing that Zahedi’s claims are barred by the statute of limitations or, in the alternative, by the equitable doctrines of estoppel and laches, and that in any event Miramax owns the photograph as a work for hire.
Under the statute of limitations for copyright claims, an action for infringement must be brought “within three years after the claim accrued.” This means that a plaintiff cannot recover for damages that occurred more than three years before suit was filed.
 
However, there is an exception when a plaintiff reasonably lacks knowledge of the infringement prior to the three-year period. Here, the court found that Zahedi actually knew for some time that Miramax was exploiting a photograph of which he claimed ownership without giving him credit or royalties, and therefore his failure to bring suit to assert his ownership rights was fatal to his case. “Zahedi’s receipt in 2015 of an action figure prominently featuring the iconic photo bearing Miramax’s copyright notice,  and failing to credit Zahedi is uncontroverted evidence of his actual knowledge of Miramax’s plain and express repudiation of his ownership.” Consequently, the plaintiff’s claim was barred by the statute of limitations and dismissed on a motion for summary judgment.

This case illustrates the importance of having written agreements and being diligent in pursuing claims before they are barred by the statute of limitations. Miramax was negligent in not having or preserving a signed work for hire agreement with the photographer. U.S. law recognizes the work-for-hire doctrine under which the "author" of a work can be the employer of an artist, not the artist himself. However, here, even if the photographer owned the photo because no such agreement existed, his failure to prosecute his claim in a timely manner barred his recovery.
 
Read the decision. 
​

The widower of the ghost writer of a non-fiction book about Four Seasons member, Tommy DeVito, failed to convince the U.S. Supreme Court[i] to review a ruling that the Broadway musical “Jersey Boys” did not infringe an unpublished autobiography.
 
Plaintiff claimed DeVito had given the producers a copy of the unpublished book written in the 1980s and that the musical’s creators had plagiarized it.
The musical, Jersey Boys, depicts the history of a popular musical group, the Four Seasons, from its origins in Belleville, New Jersey, in the 1950s. The play launched on Broadway in 2005 and ran for more than ten years. The play also went on touring engagements and was later made into a movie.
 
The district court granted summary judgment to Defendants. The Court of Appeals reversed in part and remanded for trial. At the close of evidence, Defendants moved for judgment as a matter of law, and the court granted the motion in part and denied it in part, ruling that Defendants  Frankie Valli and Robert Gaudio were entitled to judgment as a matter of law against the claims of copyright infringement, and that all Defendants were entitled to judgment as a matter of law against enhanced damages for willful copyright infringement. However, the jury returned a verdict for Plaintiff.
 
On appeal, the Ninth Circuit[ii] ruled that any similarities in the book were based on historical facts which are not copyrightable. The court noted that the producers of the play did not infringe the author's work because facts, in and of themselves, could not form the basis for a copyright claim, and this nonfiction biography was necessarily structured around historical facts and events, which were not themselves copyrightable.
 
To qualify for copyright protection, a work must be original to the author. A work is original if it is created by the author with at least some minimal degree of creativity. Although the creation of a nonfiction work, even a compilation of pure fact, entails originality, no author may copyright ideas or facts. Copyright protects an author’s original expression in their work but does not protect ideas and facts.
 
The Ninth Circuit also affirmed the precedent of “copyright estoppel.” This means that an author who holds their work out as nonfiction cannot later claim, in litigation, that aspects of the work were actually made up and therefore, they are entitled to full copyright protection.
 
  
[i] US Supreme Court certiorari denied by Corbello v. Valli, 2021 U.S. LEXIS 3488 (U.S., June 28, 2021)
 
[ii] Corbello v. Valli, 974 F.3d 965 *; 2020 U.S. App. LEXIS 28363.
 

Scarlett Johansson, the star of Black Widow, has sued Disney for releasing the movie  without first giving it an exclusive theatrical release. Her deal provided for substantial bonuses tied to box office  receipts. The film’s theatrical revenue was disappointing perhaps because it was also released on Disney’s new Disney+ platform on  the same day that it premiered in theaters. This may have encouraged fans to sign up for its  new SVOD  service benefiting Disney+. But if  streaming release reduced box office revenue, then it reduced Johansson’s compensation.

Johansson is claiming  that Disney, caused Marvel, its subsidiary, to breach its contract with her.  However, her contract stated “if Producer in its sole discretion determines to release the Picture, then such release shall be a wide theatrical release of the Picture (i.e. no less than 1500 screens).” But nowhere in the agreement does it state that Disney cannot simultaneously stream the movie.

Johansson’s attorneys argue that a theatrical release means an exclusive initial release in theaters before being exhibited on other media. And while it has been customary for theatrical pictures to give exhibitors an initial exclusive  theatrical window first, followed by a  home video release at least 90 days later, there is nothing in the agreement that specifically says the movie has to be released exclusively in theaters first.
As a result of the COVID-19 pandemic, theaters were shut down, and a lot of films slated for theatrical release had to be held over or released digitally for viewing at home. Black Widow was initially scheduled to be released on May 1, 2020. The release was pushed back several times because of the Covid pandemic.

Walt Disney issued a  statement responding  to Johansson’s lawsuit: “There is no merit whatsoever to this filing. The lawsuit is especially sad and distressing in its callous disregard for the horrific and prolonged global effects of the COVID-19 pandemic. Disney has fully complied with Ms. Johansson’s contract and furthermore, the release of Black Widow on Disney+ with Premier Access has significantly enhanced her ability to earn additional compensation on top of the $20M she has received to date.”

“Black Widow,” grossed more than $318 million worldwide since opening in theaters and on Disney+. But it experienced  a steep  box-office drop between its first and second weekends. According to the National Association of Theater Owners, this reduction in box office was because the film was available  on Disney+, where it could be rented for  $29.99.

Read Lawsuit
 

 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 [email protected].

​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: [email protected]
Website: www.marklitwak.com
 
Our phone numbers and email remain the same.