What’s the Deal with Film Festivals - Should I Go or Not?
Photo by Jake Hills. https://unsplash.com/@jakehills
If you are an independent filmmaker, or looking for work in the film industry, the short answer to this question is yes (if you can afford the costs of travel, lodging, festival tickets, workshops, and food).
Film festivals are a great way for film industry veterans and independents to connect and collaborate. It’s a perfect way to see and meet producers, directors, actors, film crew, screenwriters, film commissioners, distributors, and even entertainment attorneys. You get the opportunity to see how people in the film industry network, how they pitch projects, how they make distribution deals, or just scope out movies being screened for the next potential big hit or the next big stars.
Obviously some festivals are better known than others (like Sundance, Tribeca, SXSW, etc), and as a result are more likely to draw the big names to attend. But as a someone looking for work in the industry as an actor, screenwriter, etc., or an independent filmmaker pitching a project, you never know what opportunities you may stumble upon, or deals waiting to be made at any film festival with just the right lucky break.
Even if you are not in the industry yet but want to be, it’s a good idea to go and see what the film industry is like in reality as opposed to what you may see on tv on the various award shows or on reality tv. I have numerous law school students reach out to me each school year seeking internships because they want to eventually become entertainment lawyers. I also have clients new to the entertainment industry in general that reach out to me about how to gain opportunities in their particular field of entertainment. I always encourage getting hands-on experience within the entertainment industry of interest, and not just focusing on the job you want to do. Volunteer for any position, if possible, in established companies, festivals, etc., so you get to see how they operate from day to day or week to week, and how they make decisions.
I actually added entertainment law to my areas of practice about 10 years ago after volunteering to screen Spanish-language movies for my local film festival (St. Petersburg Sunscreen Film Festival), attending local presentations, taking continuing legal education (CLE) seminars, and networking at various entertainment-related events. So if you are serious about being in the film industry, take advantage of every opportunity you have to absorb as much information about the industry as possible, including participating in film festivals.
Anatomy of Entertainment Contracts (Pt. 2)
Photo by krakenimages @krakenimages.
Breach & Remedies:
A breach clause can be a separate clause or interspersed within other clauses. Make sure you make note of any language anywhere in the contract that discusses that a failure to do something, or doing something, results in negative consequences.
A remedies clause explains whether or not there is an opportunity to cure any particular breach before a party can take action against the other. It should explain how the offended party communicates to the other that a breach has occurred. This is typically in writing. If there is a means of rectifying the situation within a short amount of time, that would be explained within the remedies section, as well as any penalty attached, and how it affects the rest of the contract.
If the offended party seeks legal recourse against the other for the breach, this section would state what remedies the party could take (injunction, litigation and who pays attorneys’ fees , arbitration and who pays attorneys’ fees, etc.). The remedies information relates to the jurisdiction of the contract, which is discussed below.
Termination:
A termination clause explains when and how the contract can be terminated between the parties. It typically also explains how the parties can reconcile any open-ended issues (bookkeeping, unpaid services, unpaid salary, etc.) upon termination. If it doesn’t, ask.
Assignment:
Assignments arise when one or both parties transfer their interests and/or rights and responsibilities in the contract to a third party or a successor. If the contract permits assignments, that needs to be spelled out. If not, that also needs to be spelled out. What notice the party has to give the other about a successor taking over their rights and responsibilities, and how that is communicated, should be explained in detail. Whether the non-assigning party has a period of time to terminate the contract with the successor party should also be clearly stated. If there is no reference to assignments in the contract do not assume it is permitted.
Jurisdiction:
Jurisdiction refers to what U.S. state or federal law governs the contract. If it’s an international contract, which country’s laws govern a contract have to be stated. If there is an earlier reference to remedies in the contract, any legal filings or actions regarding the remedies need to occur within the jurisdiction that governs the contract.
These topics are not all always required for every entertainment contract, and this is not an all-inclusive list of what needs to be in a particular contract. But for contracts involving performance or transfer of rights or investments in projects, it should be a red flag if these clauses are not in the contract. Entertainment is a business. You wouldn’t deposit money into a bank without knowing the terms and having a sense after reviewing the terms that your money will be safe. Do not contract your talents and time, or invest in projects, without clearly knowing and understanding how you will benefit, that you will benefit in the way you expect to benefit, and that your risk will not exceed your benefit. Seek legal assistance so you can discern which contracts are in your best interest, and you are fully educated on the terms of the contract. It is much easier, and cheaper, to walk away from a bad contract offer than to get out of a bad contract you are fully obligated to perform.
Anatomy of Entertainment Contracts (Pt. 1)
Photograph by Amina Atar https://unsplash.com/@minaslens.
Most entertainment contracts have the same clauses but are detailed to fit the particular circumstances of the agreement. This post focuses on which clauses in a contract that you as a talent signing an entertainment contract should pay particular attention to. Not all clauses discussed in this post, and in the follow up post, are necessary for every entertainment contract. However for entertainment contracts for performance of a talent, or creative product/project, in exchange for pay, these clauses should be in the agreement, and should be a red flag if they are not. This is Part 1 of 2 posts.
Introductory Clause :
The introductory clause should of course state who the parties are that agreeing. This should include the names, stage name/pen name, addresses, title of the project/event/product/service, date of effectiveness, and time period of the contract (from when to when).
Consideration :
The consideration clause spells out what you will be doing or giving to the other party, in exchange for what the other party will be doing or giving you. This section can include milestones, payment distribution, percentage per item sold or downloaded, etc. All agreements for compensation, transfer of interest in a property, etc., no matter how small, need to be included in the contract, otherwise it can be easily disputed as to whether they were ever part of the contract. If you are entitled to any additional payment distribution after the completion of your obligation, this may be included in this clause or in a separate clause.
Representation & Warranties :
The representation and warranties clause states that the parties are actually able to perform the skills, obligations and/or responsibilities they have represented themselves as having for purposes of the agreement, and for a successful completion of the contract. Sometimes this clause is included with an indemnification clause.
Indemnification :
The indemnification clause explains what exposure a party has under the agreement to liability for a claim that arises between the parties, or from a 3rd party action. Often one party is indemnifying the other party from certain types of 3rd party claims that arise during the course of the agreement.
*Check out my next blog post for Part 2 of Anatomy of Entertainment Contracts. As with all posts on this blog, this is general information and not legal advice. Consult with an entertainment attorney to review your specific situation.
#entertainmentcontracts #entertainmentlaw #indemnification #warranties clause #contractconsideration
Depiction Releases
Photo by Kyle Head
I was reading an article about a recent settlement that resolved a lawsuit against Netflix and several producers of the miniseries “Griselda.” Here is the link to the article: https://www.hollywoodreporter.com/tv/tv-news/sofia-vergara-settles-lawsuit-netflix-griselda-1235821431/. Griselda Blanco was a drug lord from Colombia who was based and operating her business from Miami. This is a good article from Rolling Stone about the movie and Blanco’s background: https://www.rollingstone.com/tv-movies/tv-movie-features/griselda-blanco-sofia-vergara-netflix-cocaine-miami-drug-trafficking-murder-1234965871/. It includes an interview with Blanco’s son, who initiated the lawsuit.
One of the issues the Hollywood Reporter article says was a basis of the suit was that Blanco’s son and his wife were depicted in the miniseries without their permission. Depiction releases need to be addressed in pre-production. It’s typically necessary to show that all necessary releases have been obtained for purposes of distribution. They typically involve paying a person to allow you to depict them in their work, and them agreeing to let you use their name, their likeness, personal information, and other aspects of their life, in exchange for not suing you for defamation, invasion of privacy and, in jurisdictions that recognize rights of publicity, violation of the right to publicity. The release is irrevocable and perpetual to prevent a person from being able to withdraw consent halfway through filming, or when it’s getting ready to air. There’s usually language in a release that the user of the depiction has the right to use the depiction in a variety of media and in a variety of ways without needing further permission.
There are times when a depiction release is not needed, or can be avoided. If the information being used can be considered to fall within the category of “fair use,” then there is a likelihood that a release is not needed. If the person is deceased there is no release needed assuming you are not using material that is not still copyright protected like photographs, paintings, music, etc., and not in a jurisdiction that has post-mortem rights of publicity. Right to the privacy, or claims of defamation, of a deceased person do not transfer to his estate or his heirs.
Whether or not you get a depiction release can be the difference between a peaceful release of a film, tv show, etc., or a potential lawsuit by the person being depicted, no matter how slight or suggestive, for a massive amount.
Photo by Romain Dancre.
CALL TO ARTISTS: Read the Fine Print.
As an artist, I often consider a variety of “CALL TO ARTIST” announcements I see on social media or in art magazines, etc. For the most part the announcements are very clear and fair in explaining their terms of participation. But every once in a while I see language in a CALL TO ARTISTS that’s mind-blowing.
For example, if a CALL TO ARTIST states in its terms of participation that by participating you are agreeing that the host can use your artwork however they wish and into perpetuity, you should consider running in the other direction. Or at least delete that opportunity from your mind as an option. Other language I’ve seen stated that the artist was agreeing to give up all rights to the artwork by participating, and agreeing to divest all his or her rights in the art to the host of the exhibit, contest, or whatever the event is. Again, run or delete.
You, the artist, are the owner of a bundle of rights regarding your original artwork. When you sell the physical original art, you don’t sell the rights that were created when you made the artwork. You still maintain the right to create copies and sell them. You have the right to contract for the use of the image in films, video games, album covers, on household goods, etc. You also have the right to do nothing further beyond selling the original art. The buyer can sell the physical art they bought, but that’s it. The artist’s rights do not automatically transfer to a buyer of the original art unless there is a written agreement stating that that is the case.
This is why it’s so important to know what you are signing when you enter contests or respond to any CALL TO ARTIST announcements. You worked too hard to create your art. Protect your rights to it. No contest or CALL TO ARTIST is worth surrendering more than you have to.
Signing Away Your Rights in Sports & Entertainment Contracts
Photo by Kelly Sikkema from Unsplash.
If you’ve ever wondered how important owning the trademark to your own name is, ask why some record label contracts, some sports contracts, etc., require that the performer give up their name as part of the deal. A trademark has value, and has the ability to make money for its owner in variety of ways beyond the immediate purpose of the contract. There are a variety of rights that an entertainment contract can demand that you sign away ownership to as a term of the contract.
I read a really well-written article today on Inc.com by contributing editor Jeff Haden, titled, “Why Did Dwayne Johnson Just Receive Full Ownership of ‘The Rock’? The Value of Trademarking and Controlling Your Own Intellectual Property.” Here is the link: https://www.inc.com/jeff-haden/dwayne-johnson-just-received-full-ownership-of-the-rock-it-shows-value-of-trademarking-controlling-your-own-intellectual-property.html. I strongly encourage anyone getting ready to sign a new entertainment contract for their performance to read this article first, and then read every word in the contract before signing.
The article discusses how actor and former wrestler, Dwayne Johnson, never owned the trademark to his wrestling name “The Rock,” even though that’s how he’s usually referred to as an actor outside of wrestling. The article says it wasn’t until now that Johnson has just acquired full ownership of “The Rock” trademark as a term of a new deal he entered into with TKO Group Holdings, Inc., which owns WWE (the now former owner of “The Rock” trademark).
Many now famous entertainers talk about how they didn’t realize what they were signing away when they signed their first entertainment contracts, and as a result they barely made any money, if any, when they became famous. It comes down to asking yourself if the promise of what you could have, is worth giving up a right you currently own, if you become famous. The article talks about this. In some situations it worked out for the performer that took the risk despite losing whatever right they signed away. In many cases, it may not even be an issue because the performer is signing a very limited contract with a small company or independent that is not well-established. It all comes down to reading the fine print (every word), seeing of there’s room for negotiation, and if so, limiting the transfer of ownership of whatever right as much as possible, and then making the decision to sign or not.
What’s the Difference between a Copyright & a Trademark?
Photo by Markus Winkler. https://unsplash.com/@markuswinkler
Photo by Sam Moghadam Khamseh. https://unsplash.com@sammoghadamkhamseh
Photo by Alexander Grey.
Photo by Kenny Eliason.
I’m often asked what the difference is between a copyright and a trademark. It’s easy to confuse the two because there can be an overlap between the two. Below is a general description of the differences.
Think of a copyright as the “thing” you make. As the creator of this “thing,” you can do whatever you want with it. You can make changes to it, duplicate it, create different versions of it, sell it, license it’s use in specific ways, or do nothing at all with it. A common law copyright is created once your “thing” is in a fixed and tangible form, like sheet music, a photograph, a manuscript, etc. For better protection of the “thing,” it’s highly recommended that you register it with the U.S. Copyright Office. The filing fees for applying for copyright registration range depending on if you are filing electronically or with a hardcopy, and the category. Most electronic filings are less than $100, and the process from filing to final registration typically takes 2-3 months, assuming no issues and no backlogs. Here is the link for more information on federal copyright registration: https://www.copyright.gov/registration/.
A trademark, on the other hand, is your brand. It’s something that the general public associates with you or your business. It can be a logo, a phrase, a sound, etc. Like with a copyright, you have a common law trademark when you use the brand in association with your goods and/or services. You can register your trademark in most states, however it only protects your brand from infringement within the state. For protection throughout the U.S. you have to apply for a federal trademark registration through the U.S. Patent and Trademark Office. Filing fees for initial electronic applications start at $250 per class, and based on the type of form you use, but fees are currently under review for possible increases in November 2024. The process from filing the application to the final registration can range from 12-18 months or longer based on any issues that arise from the application information and backlogs. This is the link for more information on trademarks: https://www.uspto.gov/trademarks.
Finally, federal registrations allow the owners of copyrights and trademarks to seek harsher penalties against those who infringe upon their work or their brand, than they could obtain suing infringers in state courts. These penalties can be civil and/or criminal, and can include an assessment of costs and attorney’s fees.
As with any legal questions, seek the advice of legal counsel to assess the facts of your circumstances.
Let’s Talk about Artificial Intelligence (AI) …..
Photo by Andras Vas@wasdrew.
For those who don’t know much about AI, it’s a technology that gathers and distributes information and images, which can then be used for a wide range of purposes. Think of it like a library but you don’t know how the library is collecting the information, or how it stores the information. You just know that if you ask the library to produce an answer to a question, or to provide an image based on a description, or a video, or to suggest items to users of an app based on previous purchases, it can do that. And not only can it do that, but it can allow for information and images to be altered in any way you desire without notice to the original creator of the work, without limitations on its use, and without verification of accuracy. Scary.
A main concern for creatives is how do you protect your work (for example, photographs) from being used in this AI process? Also, how do you get a source of AI to either compensate you for using your work before getting your permission, or get them to stop using your work at all?
AI also raises concerns among the legal community because there hasn’t been enough litigation about AI to clearly say whether already established principles in copyright law, trademark law, patent law, etc., will continue to hold up in their totality to AI, and if not, what is the point of distinction? There are some current notable lawsuits with unique facts against AI providers. However, these cases will take time to resolve through the litigation and appellate processes.
One of the cases I am keeping an eye on is the NY Times’ lawsuit against OpenAI and Microsoft. The NY Times argues that OpenAI is using the Times’ published copyrighted material to train its technology, without their consent. https://apnews.com/article/nyt-new-york-times-openai-microsoft-6ea53a8ad3efa06ee4643b697df0ba57?utm_source=copy&utm_medium=share. OpenAI argues that the material from the Times falls within the category of “fair use,” and therefore is not subject to the typical copyright protection. https://www.nytimes.com/2024/01/08/technology/openai-new-york-times-lawsuit.html.
Another case to watch is a case of 17 authors who are suing ChatGPT for copyright infringement. https://apnews.com/article/openai-lawsuit-authors-grisham-george-rr-martin-37f9073ab67ab25b7e6b2975b2a63bfe. The authors say that the ChatGPT technology uses their books, without permission and without compensation, to train the algorithm within the technology. As a result, searches performed by users of the technology allow the user to further infringe on the authors’ copyrighted material by allowing the user to create derivative works from their original material.
So you see this is going to take a while to resolve.
Keep a look out for my next blog entry about the difference between copyright and trademark, and why federal registration for both is recommended.
Blog
Welcome!
Welcome to our new Blog Page! Here you’ll be able to find interesting, and sometimes educational, posts about general legal topics in various creative industries (film, music, art, etc.), as well as thought pieces commenting on current affairs in these industries that have legal implications for creatives.
Disclaimer: The information provided on this website, and in this Blog, is not intended to be legal advice. Each case has its own specific facts and concerns, and should be properly assessed by an attorney through consultation.
Photo by Chris Corsaro Aulet.