I get many questions from clients and non-clients about all areas of entertainment. Non-clients tend to ask questions like "do you ever meet any celebrities?" The answer is "sure" all the time. Just go to a NY restaurant, flea market or grocery store or take a walk up or down any West Side or Greenwich Village street and you're bound to meet one or two as well.
In practice, however, the questions come like the cascading deck of cards in Alice in Wonderland. Remarkably, contract after contract (not drafted here) seem to be written in the English language but defy easy explanation. Is it any wonder that lawyers are occasionally viewed in, shall we say, a suspect manner?
Anyway, there are a number of questions that do arise. . .
Q.
What's the rule on how much music I can use without permission?
What's the rule on how much music I can use without permission?A.Less than one note is OK. The fact is there is no rule, though there is this myth about less than X bars is OK. Unless music is in the public domain or you can claim a fair use, you will likely be infringing a copyright if you don't get permission.
Less than one note is OK. The fact is there is no rule, though there is this myth about less than X bars is OK. Unless music is in the public domain or you can claim a fair use, you will likely be infringing a copyright if you don't get permission.Q.How do I prevent someone from stealing my work?
How do I prevent someone from stealing my work?A.The simple answer is you cannot. There are methods, however, by which you can warn a potential thief, even a well-meaning one, and gain certain other advantages if you eventually need to initiate a lawsuit. For a modest fee, you can register your project (if written) at the Writers Guild of America East ($22.00 non-member; $17.00 students; $10 member) and you get 10 years of protection or go Hollywood at Writers Guild of America, West ($20.00 non-member; $10.00 member) and you get 5 years of protection (psst, do the math). The other primary registration is the US Copyright Office. For $30.00 for get protection for the author's life plus 70 years (for a work made-for-hire, the term is 95 years from publication or 120 years from creation, whichever is shorter). The rules and regulations regarding registration are more complicated but worth the effort.
The simple answer is you cannot. There are methods, however, by which you can warn a potential thief, even a well-meaning one, and gain certain other advantages if you eventually need to initiate a lawsuit. For a modest fee, you can register your project (if written) at the Writers Guild of America East ($22.00 non-member; $17.00 students; $10 member) and you get 10 years of protection or go Hollywood at Writers Guild of America, West ($20.00 non-member; $10.00 member) and you get 5 years of protection (psst, do the math). The other primary registration is the US Copyright Office. For $30.00 for get protection for the author's life plus 70 years (for a work made-for-hire, the term is 95 years from publication or 120 years from creation, whichever is shorter). The rules and regulations regarding registration are more complicated but worth the effort.Q.I'm producing a documentary film and I am using photos, film clips, music and other audio and/or visual material. How do I prevent myself from stealing someone's work?
I'm producing a documentary film and I am using photos, film clips, music and other audio and/or visual material. How do I prevent myself from stealing someone's work?A.Two words: Due diligence. Depending upon what kind of copyrighted material you seek, there are numerous organizations, research sources and procedures that can be brought to bear.
Two words: Due diligence. Depending upon what kind of copyrighted material you seek, there are numerous organizations, research sources and procedures that can be brought to bear.Q.What is the public domain? How do I know something is "in the public domain?
What is the public domain? How do I know something is "in the public domain?A.For the most part, public domain (or "PD") means the work is not subject to, or can no longer be, copyrighted. The corresponding effect is that a public domain use requires permission from no one. Ascertaining whether something is "in the public domain" may be a more elusive activity. Works published prior to 1923 are PD. Unpublished works by known authors who died before 1936 are PD. Other than that, you should be checking with an attorney.
For the most part, public domain (or "PD") means the work is not subject to, or can no longer be, copyrighted. The corresponding effect is that a public domain use requires permission from no one. Ascertaining whether something is "in the public domain" may be a more elusive activity. Works published prior to 1923 are PD. Unpublished works by known authors who died before 1936 are PD. Other than that, you should be checking with an attorney.Q.What is "fair use" and how can I get me some of that?
What is "fair use" and how can I get me some of that?A.Section 107 of the Copyright Law lists certain limitations on the exclusive rights granted by copyright. This is known as the "Fair Use" provision and enables a copier to avoid a copyright infringement if the use made by the copier is "fair." The provision lists four basic factors that are considered in determining whether a use is fair," though these factors are not necessarily the only factors that may be weighed..
Section 107 of the Copyright Law lists certain limitations on the exclusive rights granted by copyright. This is known as the "Fair Use" provision and enables a copier to avoid a copyright infringement if the use made by the copier is "fair." The provision lists four basic factors that are considered in determining whether a use is fair," though these factors are not necessarily the only factors that may be weighed..Q.I wrote the great American novel. How can I get it published?
I wrote the great American novel. How can I get it published?A.There are three basic ways to get your book published. Find an agent, find a publisher or do it yourself. Publishers tend to take submissions only from agents and other industry professionals so unless you have an agent, the publisher submission is unlikely. Some agents take new writers and some don't. Your best bet to find an agent is invest in a a good writer's guide that lists agents and publishers or subscribe to a website like the Literary Marketplace or Publishers Marketplace. Once you have the agents' names you can pay a visit to their websites to get information and guidelines on submissions. A third, and growing activity, is self-publishing or publishing on demand. One of the best guides I've seen is Mark Levine's The Fine Print, which tells you everything you need to know about self-publishing, compares publishers and explains publishing agreements.
There are three basic ways to get your book published. Find an agent, find a publisher or do it yourself. Publishers tend to take submissions only from agents and other industry professionals so unless you have an agent, the publisher submission is unlikely. Some agents take new writers and some don't. Your best bet to find an agent is invest in a a good writer's guide that lists agents and publishers or subscribe to a website like the Literary Marketplace or Publishers Marketplace. Once you have the agents' names you can pay a visit to their websites to get information and guidelines on submissions. A third, and growing activity, is self-publishing or publishing on demand. One of the best guides I've seen is Mark Levine's The Fine Print, which tells you everything you need to know about self-publishing, compares publishers and explains publishing agreements.Q.How do I get a job in film?
How do I get a job in film?A.I hear there are usher openings at Cineplex. Seriously if you want to work in film or any other entertainment industry or facet, check out company websites for job openings, industry Internet newsletters (like Cynthia Turner'sCynopsis), or industry trade papers/magazines like Variety, Hollywood Reporter or Backstage. If you're just starting out or switching careers, try an industry job site.
I hear there are usher openings at Cineplex. Seriously if you want to work in film or any other entertainment industry or facet, check out company websites for job openings, industry Internet newsletters (like Cynthia Turner'sCynopsis), or industry trade papers/magazines like Variety, Hollywood Reporter or Backstage. If you're just starting out or switching careers, try an industry job site.Q.What is the function of ASCAP/BMI?
What is the function of ASCAP/BMI?A.ASCAP (American Society of Composers, Authors and Publishers) and BMI (Broadcast Music, Inc.) are societies of songwriters and music publishers that protect their members' non-dramatic public performances of their copyrighted works. They issue "public performance licenses" to such entities as radio and television broadcasters, cable channels, hotels, bars and even elevator music purveyors. Most producers don't have to concern themselves with ASCAP or BMI since they are not the end "public performer" of music. A third organization similar to ASCAP and BMI is SESAC (originally known as the Society of European Stage Authors & Composers) which refers to itself as the fastest-growing performing rights organization in the U.S. Each is a vital source in doing your due diligence in finding out which publishers own and/or control a particular song.
ASCAP (American Society of Composers, Authors and Publishers) and BMI (Broadcast Music, Inc.) are societies of songwriters and music publishers that protect their members' non-dramatic public performances of their copyrighted works. They issue "public performance licenses" to such entities as radio and television broadcasters, cable channels, hotels, bars and even elevator music purveyors. Most producers don't have to concern themselves with ASCAP or BMI since they are not the end "public performer" of music. A third organization similar to ASCAP and BMI is SESAC (originally known as the Society of European Stage Authors & Composers) which refers to itself as the fastest-growing performing rights organization in the U.S. Each is a vital source in doing your due diligence in finding out which publishers own and/or control a particular song.Q.What constitutes "music rights"?
What constitutes "music rights"?A.Music rights generally consist of public performance, synchronization, master recording (or master use) or mechanical rights. For public performance rights, see the immediately preceding question. Synchronization rights enable its owner to license the right to synchronize all or part of a musical composition (e.g., a song with lyrics or instrumental) with an audio and/or visual recording. If there is no recording (e.g., a live telecast) there is no need for a synch license though it may be argued by the publisher that even an archive videotape with the music, though it is never distributed, is still a synchronization and therefore the publisher is entitled to license. A master recording or use grants the licensing party the right to use all or part of an existing recording in an audio and/or visual work. Mechanical rights relate to the compulsory licensing provisions of the Copyright Act. If a composition has already been commercially recorded, and you wish to record and distribute that composition yourself (and you are not the original writer), you do not need to seek permission of the owner but you must pay a compulsory license rate. Of course, if you think you can negotiate a more favorable rate, then you must contact the owner. Remember, as of January 1, 2006 the statutory mechanical rate is $.091 for songs 5 minutes or less, or $.0175 per minute or fraction thereof per copy for songs over 5 minutes..
Music rights generally consist of public performance, synchronization, master recording (or master use) or mechanical rights. For public performance rights, see the immediately preceding question. Synchronization rights enable its owner to license the right to synchronize all or part of a musical composition (e.g., a song with lyrics or instrumental) with an audio and/or visual recording. If there is no recording (e.g., a live telecast) there is no need for a synch license though it may be argued by the publisher that even an archive videotape with the music, though it is never distributed, is still a synchronization and therefore the publisher is entitled to license. A master recording or use grants the licensing party the right to use all or part of an existing recording in an audio and/or visual work. Mechanical rights relate to the compulsory licensing provisions of the Copyright Act. If a composition has already been commercially recorded, and you wish to record and distribute that composition yourself (and you are not the original writer), you do not need to seek permission of the owner but you must pay a compulsory license rate. Of course, if you think you can negotiate a more favorable rate, then you must contact the owner. Remember, as of January 1, 2006 the statutory mechanical rate is $.091 for songs 5 minutes or less, or $.0175 per minute or fraction thereof per copy for songs over 5 minutes.. Q.What is a "quitclaim"?
What is a "quitclaim"?A.This is a grant of any applicable rights the owner grantor may have and it is made without warranty as to other rights that may be necessary. As a grantee, you have 3 choices: accept the quitclaim "as is," undertake as much due diligence as you can so as to avoid a claim from a third party claimant in the future or don't do the deal. A quitclaim grant may adversely affect your ability to secure errors and omissions insurance.
This is a grant of any applicable rights the owner grantor may have and it is made without warranty as to other rights that may be necessary. As a grantee, you have 3 choices: accept the quitclaim "as is," undertake as much due diligence as you can so as to avoid a claim from a third party claimant in the future or don't do the deal. A quitclaim grant may adversely affect your ability to secure errors and omissions insurance.Q.What is errors and omissions insurance and do I need it?
What is errors and omissions insurance and do I need it?A.This insurance (always known as E&O) insures the policy holder for such claims as copyright and trademark infringement, libel, slander, invasion of privacy, plagiarism, piracy and misappropriation of ideas, product disparagement and trade libel. Some policies also cover right of publicity and passing off. It is usually required by distributors, exhibitors and other licensees. The application requires information concerning the nature of the product, financials of the insured, what elements are included in the production and clearance procedures. The insurance companies require that an experienced entertainment attorney complete and/or review the application and the clearance procedures undertaken by the insured.
This insurance (always known as E&O) insures the policy holder for such claims as copyright and trademark infringement, libel, slander, invasion of privacy, plagiarism, piracy and misappropriation of ideas, product disparagement and trade libel. Some policies also cover right of publicity and passing off. It is usually required by distributors, exhibitors and other licensees. The application requires information concerning the nature of the product, financials of the insured, what elements are included in the production and clearance procedures. The insurance companies require that an experienced entertainment attorney complete and/or review the application and the clearance procedures undertaken by the insured.Q.What is a work "made-for-hire"?
What is a work "made-for-hire"?Section 101 of the Copyright defines a work made for hire. There are generally two ways that such a work is created: (1) prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. But, as usual, it's not quite that simple. Check out the law and you'll see that you really do need an attorney.
Q.My friends and I wrote a screenplay. Do we really need a contract? We've been friends since childhood.
My friends and I wrote a screenplay. Do we really need a contract? We've been friends since childhood.A.Only if you want to keep them as friends. It's a simple matter to have a collaboration agreement that specifies the relationship of the parties, how income will be split, what credits each party will get, who has approval and how disputes may be resolved. It's much easier to do this when you're still friends.
Only if you want to keep them as friends. It's a simple matter to have a collaboration agreement that specifies the relationship of the parties, how income will be split, what credits each party will get, who has approval and how disputes may be resolved. It's much easier to do this when you're still friends.Q.What is an "orphan" work?
What is an "orphan" work?A.This is a work whose owner cannot be identified or located. If so, one might ask why not just go ahead and take a chance. The reason is the "distant nephew" rule (my own). Even though you did your due diligence, can find neither hide nor hair of the owner, if you go ahead you will invariably hear from the owner who learned of your infringement from the owner's nephew living in the smallest town in Idaho. The Copyright Office is currently studying this issue of orphan works and has issued a Final Report. Your tax dollars at work!
This is a work whose owner cannot be identified or located. If so, one might ask why not just go ahead and take a chance. The reason is the "distant nephew" rule (my own). Even though you did your due diligence, can find neither hide nor hair of the owner, if you go ahead you will invariably hear from the owner who learned of your infringement from the owner's nephew living in the smallest town in Idaho. The Copyright Office is currently studying this issue of orphan works and has issued a Final Report. Your tax dollars at work!Q.I have a trademark in the US and now I'm building a website to sell my trademarked product internationally. How do I protect myself?
I have a trademark in the US and now I'm building a website to sell my trademarked product internationally. How do I protect myself?A.In late 2003, the Madrid Protocol became effective in the US. This enables an applicant who has filed a trademark application in the United States Patent and Trademark Office, to subsequently file an application for trademark registration in foreign countries. Separate fees are required for each separate filing.
In late 2003, the Madrid Protocol became effective in the US. This enables an applicant who has filed a trademark application in the United States Patent and Trademark Office, to subsequently file an application for trademark registration in foreign countries. Separate fees are required for each separate filing.Q.What does a "co-production" mean?
What does a "co-production" mean?A.Think "partnership." The prefix "co-" simply means jointly. Co-productions can involve two or more entities who finance a production in whole or in part, provide rights or production facilities or account for distribution territories or ancillary uses. For example, in a co-production of three entities, entity A invests 50% of the budget and distributes in North America; entity B invests 30% of the budget and distributes in the rest of the world; and entity C invests 20% of the budget and gets 20% of net profits. Entities A and B split the other 80% of net profits.
Think "partnership." The prefix "co-" simply means jointly. Co-productions can involve two or more entities who finance a production in whole or in part, provide rights or production facilities or account for distribution territories or ancillary uses. For example, in a co-production of three entities, entity A invests 50% of the budget and distributes in North America; entity B invests 30% of the budget and distributes in the rest of the world; and entity C invests 20% of the budget and gets 20% of net profits. Entities A and B split the other 80% of net profits.Q.What is a "back door pilot"?
What is a "back door pilot"?A.A backdoor pilot is generally an episode of an existing series that introduces new characters, settings or situations intended to be used to see if ratings are good, so that the network or cable service might order a new series based upon the new character, setting or situation of the "backdoor pilot."
A backdoor pilot is generally an episode of an existing series that introduces new characters, settings or situations intended to be used to see if ratings are good, so that the network or cable service might order a new series based upon the new character, setting or situation of the "backdoor pilot." 