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Professionals in the entertainment and new media fields use this forum as your bulletin board to post questions, share information with peers about entertainment and new media and ask for information or assistance from others in the field.
Now, that you know what this space is all about, browse through our recent postings, and send your own question or information nugget to wiredlaw@wiredlaw.com. If it's an item of sufficient interest to our target audience, we'll post it. Otherwise, we'll respond to you personally.
Postings to the LegalPad Forum
What's in a Name? Trademark Infringment..
I have the domain name etoysforless.com and was wondering if you think I would have a legal problem with etoys ?
Thanks,
Michael Weiner
Response:
Michael,
Thanks for writing. Yes, I think it is possible that you could have a problem with eToys. The standard for trademark infringement is "likelihood of confusion." While no one can predict whether or not eToys would take offense at your domain name, one can say that there is a likelihood that someone might think that your site is affiliated with eToys, which is the essence of the claim. If your site happens to predate the company's existence, that might help you, but you could still find yourself in the middle of nasty and expensive litigation.
Good luck,
--Michael Leventhal
Re-Recording Pre-Recorded Music
Is it legal to create CDs consisting of a collection of songs for a price? Thank you,
Terry
Response:
Terry,
Only if you have obtained all of the appropriate licenses from the copyright holders in the masters, which is darn unlikely to happen.
Thanks for writing,
--Michael Leventhal
Domain Names and Existing Trademarks
My friends and I are a bunch of Harvard students who in the last month found out about the re-selling of domain names and proceeded to register a bunch of names, including some trademarks such as "advancedphotosystem.com" (Canon).
Then we started calling up companies trying to sell them to them (anything to make tuition money, I guess!!). Yesterday, we researched the trademark issue on line and came across your writings on the subject, we were shocked to learn we might have done something illegal. Have we?
We are waiting for these big companies (Coca Cola, Estee Lauder, etc) to get back to us about buying the domain names from us, but all of a sudden we are terrified that instead of money we are going to get mailed legal papers, "inviting" us to court. Could you be kind enough to reply to us and quickly tell us if we are in any legal trouble and if we have really infringed on trademarks? Is it pretty much clear that the courts would side with the trademark owner and against the "cyber-pirate" trying to sell the "trademark.com" back to the owner? Should we just stop dreaming of graduate-school-living-in-style-courtesy-of- trademarked-domain-names-reselling??? Thank you so much!!!!
Doina Contescu
(on behalf of a bunch of us, all STARVING grad students!)
P.S. All the usual disclaimers will apply to your response, not legal advice, etc. We just want a quick ad-hoc opinion to either calm us or get us even more paranoid!
Response:
Dear Doina,
With all the usual disclaimers in place, and a few more based on the fact that I don't know which, if any, of the domain names you have registered are already registered trademarks, here's the general lay of the land.Ê Speculating (or "poaching," as some would say) in domain names is definitely frowned upon. In order to prevail in a dispute, you will need a bona fide purpose for registering the site. If the targeted company has the name you have grabbed registered as a federal trademark or any other national trademark, InterNIC will be able to take the domain name away from you.
The most likely scenario is that you will get a nasty letter back from the companies you have notified. It is less likely (but not impossible) that they will simply sue you. It is also possible (but also not likely) that somebody will offer you a nominal sum.
I am not going to advise you on the appropriate legal position to take when one of these things happen, but fighting for the domain names is likely to be fruitless and potentially very painful and expensive. Any offer of money would be a gift horse, and you know what they say about those . . .
Good luck,
--Michael Leventhal
Fair use and collectibles
My question: is it fair use to sell a product, with the photographs if I am providing information (like news show or magazine)? Thanks for your help,
Moze
Response:
Dear Moze:
Assuming that what you want to do is create a screensaver containing photographs of collectibles and then sell the screensaver, you must first clear all intellectual property rights associated with the work. While you may own the actual collectibles, as well as the corresponding photographs, you probably do not own the copyright in and to the underlying works. Moreover, depending on the nature of the collectible, you may also have to clear trademark rights. Of course, all rights clearance issues need to be addressed before you move forward on this project.
The doctrine of "Fair Use" does not seem to apply as it only permits use of copyrighted works for purposes such as criticism, comment, news reporting, and teaching. Moreover, one of the factors used to determine whether a use of a work falls under the doctrine is whether the use is of a commercial nature or is for nonprofit educational purposes. It would appear that, even if you are providing some information about the collectible, your use is of a commercial nature.
Thanks for the question,
--Michael Leventhal
Non-compete issues
Need information regarding non-compete laws in the Georgia. Any resources would be most helpful. Thanks!
Repsonse:
Dear Salakite@aol.com:
I am not familiar with Georgia law, and I suggest contacting a lawyer who is licensed to practice in Georgia. Non-compete provisions vary in each jurisdiction; and the enforceability of a non-compete provision in Georgia may not coincide with the California rule of law which I will outline below to give you an idea how it works out here.
In California, per Business & Professions Code section 16600, every contract by which anyone is restrained from engaging in their lawful trade, business or profession is to that extent void. Two narrow exceptions to this rule have been carved out by Business & Professions Code sections 16601 and 16602. Section 16601 applies to the sale of the goodwill of a business, while 16602 applies to a partnership that is anticipating dissolution. Other than these two narrowly defined exceptions, the law is clear that covenants not to compete in contracts are void and unenforceable. This rule of law was reaffirmed, most recently, in Kim Kolani, et al v. Amitai Gluska, et al, decided June 1, 1998 in the California Court of Appeal, Second Appellate Division.
Thanks for the question,
--Michael Leventhal
Film "cels" From Trailiers
My questions concerns the sale of film cels cut from movie trailers. If one has purchased of was given a film trailer can this person sell the individual frames to other collectors. Also can the person who purchased the movie trailer scan an individual cel and send or post it electronically for the sole purpose for their buyer to view before purchase. Thank you for any help you can shine on this matter.
I appreciate you time,
John
Response:
Dear John:
Section 109 of the Copyright Act, commonly referred to as the "First Sale Doctrine," limits the otherwise exclusive rights of copyright owners. The doctrine prohibits copyright owners from restricting future resales of the work.
Based on this principle, various courts have held that the First Sale Doctrine prevents the copyright owner from controlling the future transfer of a particular copy once its material ownership has been transferred. The first sale of a copy of a work thus extinguishes the copyright holder's ability to control the course of that copy through the stream of commerce. For you, that would mean that you would be within your rights to resell the individual cels.
You also ask about scanning individual cels which can thereafter be sent or posted electronically to a potential buyer for the sole purpose of viewing the cel before purchase. A strict interpretation of the copyright laws would render this activity an infringement, as it is an unauthorized reproduction of the original work of authorship, and that is all the copyright code requires for an infringement.
Thanks for writing,
--Michael Leventhal
Clients and Competitors: Sharing Digital Images
I work in a graphic design studio that produces and maintains
digital images (product shots/logos) for its clients. On occasion, our
clients will need these files for in-house projects, or those being done
by competitors who lack the images to finish the work. Our first
priority is always to our client, and we will work with competitors if
it means servicing our clients to the best of our ability, but what are
the limits to which we are required to share our digital files? What
does fair use and copyright say in our case? If you are aware of any
resources specific to graphic design, or know of case studies specific
to our problem, I would appreciate any information.
Thank you,
Brian
Response:
Dear Mr. Wymore:
The answer to your question depends entirely upon two factors. First, what your studio is actually producing, and second, what the agreement between your studio and the client says about ownership of the copyright.
A copyright protects an original work of authorship fixed in a tangible medium of expression. Therefore, if your studio is actually creating the logo for a company and then subsequently digitizing the image, absent a writing to the contrary, your studio most likely owns the copyright. On the other hand, if your studio was hired to create the logo as a "work made for hire," then the client would own the copyright in the image.
The other scenario is where your studio merely digitizes an already existing image. If this is the case, what has been produced is most likely a derivative work of the original image, or possibly not a protectible work at all. The courts are still looking at this issue. If it is a derivative work, the right to create a derivative work is one of the rights reserved for the owner of the copyright.
The doctrine of "Fair Use" does not seem to apply as it permits use of copyrighted works for purposes such as criticism, comment, news reporting, and teaching.
Thanks for writing,
--Michael Leventhal
Copyrights and Usage for Modified or Derrivative Art
Can I use a photo of the ceiling of the Sistine Chapel as an integral part of a personal work of art? I modified it in various ways, one specifically is to make it appear that there is a huge gaping hole near the center. (and is where I got the photo from really an issue?)
Can I use Rodin's "Thinker" in a work of art. If it's my photo? If it's modified? If it's not my photo? Same questions go for some of the stone gargoyle sculptures on the Notre Dame Cathedral. (All the "personal" art mentioned herein will be offered for sale, in various mediums & media.) Who would sue me? The Vatican? In reality.....?
Also, I wanted to use a digital photo of the apes from 2001 in a piece. I e- mailed MGM for info, but they haven't gotten back to me. Any ideas, short of lots of phone calls, or flying out to LA??
Thanks for your time, and the free legal opinions.
Response:
Dear Ms. Harris:
Photographs are protected by copyright. If you did not take the photographs, and they have not yet fallen into the public domain, you cannot use the photo unless you receive permission from the copyright holder of each photo.
Modification does not change the analysis, as modification would most likely result in the creation of a derivative work, and the right to create derivative works is reserved to the copyright holder.
If the photograph of a particular work of art was taken by you, then the issue turns on the work itself. If the work itself is in the public domain, copyright infringement is a non-issue. Permission to photograph the work, however, might be a separate issue. While there is no issue regarding permission to photograph Rodin's "Thinker," or the Gargoyles on the Cathedral of Notre Dame, permission to photograph the ceiling of the Sistine Chapel may be necessary.
Finally, if MGM has still not returned your e-mail, it is probably not worth your time or money to fly out to Los Angeles. The photographs of the apes form 2001 are not in the public domain and MGM is not likely to permit you to use them without a very compelling email. Follow-up e-mail and/or phone calls, however, are reasonable alternatives.
Thanks for the question and good luck!
--Michael Leventhal
Copying, Distributing CDs & the Law
I am curious about royalty and contract laws regarding the copying and redistribution of compact discs and music. For example, if I were to copy a Spice Girls CD and resell it, how much do I owe to Virgin Records?
Thank you for your time.
David Lansingh
Response:
Dear David:
It isn't a question of how much you owe Virgin Records. It is illegal to do what you are talking about without their permission, which they will not give you unless you are a major distributor (which they already have). So, it's more of a question of how much jail time are you going to do? As for the ins and outs of who owes what to whom when the CD has been properly licensed, there are a number of agreements with different parties that you will have to enter into prior to releasing the album, chief among them an agreement with the copyright holder on the sound recordings and the copyright holders on the underlying compositions, which could be many different individuals and companies for each composition.
-- Michael Leventhal
Hiring and Compensating an Entertainment Attorney
I have some questions about entertainment lawyers and their fees and services. Is it true that the lawyers broker most bigleague music deals? What is the normal split between lawyer and artist when that's the case? What if an artist makes an agreement with a lawyer and then finds a deal himself--what's the split in that case? Also what is the normal duration of a contract between an entertainment lawyer and an artist? And what's the best way to get the scoop on a lawyer's reputation before signing with him?
Thanking you in advance,
Joan
Response:
Dear Joan:
The first part of your mquestion really needs a definition of "broker." Most deals are ultimately negotiated (papers sent back and forth, deal points hammered out, etc.) by lawyers. Many also do the initial work of nailing down the material issues, but as often, it's a manager or other player. Lawyers charge for these services in different ways. Some lawyers work on a percentage (generally 5% of all of the artist's entertainment-related income), others charge by the hour, and still other work on a flat fee ($2500 to six figures, depending on the deal). It's all negotiable. The duration of a deal between a lawyer and a client in this area is as long as everyone is happy. Most retainer agreements provide for a way to terminate the agreement for whatever reason. This is standard, but you must observe the notification provisions in the agreement to make it official. However, if the lawyer is on a percentage, terminating the deal does not automatically end the payment obligation. This would not be fair to the lawyer. To get the scoop on a lawyer, ask around, call their local bar association . . . Mostly word of mouth. Hope all this helps. If you have more questions, please contact me again.
-- Michael Leventhal
Multimedia Law Primer
I am an attorney. My practice focuses on transactions related to the music industry, but I am branching into the software industry and the multimedia industry. I need a good primer on drafting and negotiating multimedia contracts (with forms) and a good primer on case law in the multimedia industry. From the looks of this bulletin board, you appear to be the multimedia guru of AOL. Any suggestions?? Does Scott publish a multimedia guide as a companion to his computer law guide? Also, any suggestions on magazines/law reviews etc. that provide you with the business aspects, as well as the purely legal aspects, of the multimedia industry?? Any local bar association groups?
Your help is much appreciated.
Response:
Good luck. It's an exciting area. I came out of the music industry, too. Yes, Scott has a book called Multimedia: Law & Practice (Prentice Hall). It covers the field, broadly, not in serious depth. I also have Multimedia Law: Forms and Analysis, Raysman, Brown & Neuberger (Law Journal Seminars-Press) There are gazillions more -- for Internet transactions, etc. Call your usual publishers. Can't recommend most of them; I haven't read them . . . There are aso a number of legal newsletters which deal with CD-ROMS and the Internet, etc. Leader Publications does a few -- including Internet Newsletter. Business Development Associates does one called The Multimedia Law Reporter. Multimedia Week from Phillips Business Information. There are many. There are also countless seminars. As for the business aspects of the industry, I highly recommend the magazine Red Herring. It's the money magazine of this industry. By the way, I am not affiliated with any of these publications.
As for local bar associations, I don't know where you are located, but check the IP sections. I also recommend that you join your local chapter of the IICS. It's an outstanding industry organization. The national organization can be reached on AOL at:Also try iics@netcom.com. By phone, (503) 579-IICS. By the way, I am the Vice-President of the Los Angeles chapter.
Good luck. Let me know how it goes.
-- Michael Leventhal
Question about trademarks on the Internet
My question is very touchy, as I don't want to get myself -- or others -- into trouble.
My question concerns copyright/trademark violations on the Internet. I, and 1000s of others, have "fan pages" devoted to movies and bands. Evidently, movie studios are not actively enforcing their rights to shut them down (or do they have that right?). If credit is given to the source, is it legal to reproduce photos, sounds, and movie quotes for non-monetary gain? (I see it's not in many situations). In addition, is it legal to ask for "voluntary contributions" to help support such a page?
Why is it, do you think, that most production companies do not bother fan pages? And, at what point do you think a fan's site would cross the line into a possible litigous zone?
My philosophy is that I, and 1000s of others, are promoting such films at no cost to the studios. These sites take time and money to maintain, and I'd like to try to break even with these costs by asking for "voluntary contributions" in exchange for ad space.
What are your ideas on this?
Response:
You've highlighted a very interesting issue in trademark law, as well as the copyright issues.
Having fan pages is generally like free advertising for the studios and labels, and who can argue with that? There are some sites that might work at cross-purposes with the owner of the mark (e.g. defamatory content or badly timed leaks of information or actual content which screw up a carefully conceived marketing plan), but generally, every likes having people talking writing and reading about their works. HOWEVER, the problem is that the trademark law requires that a trademark owner vigilantly protect his or her mark or risk losing it. The common interpretation of this requirement is that if the owner knows of an illegitimate use of the mark, he or she must attempt to shut it down or otherwise control it or face the loss of its own rights. Therefore, it may be that all of the studios, once made "officially" aware of a site, will have to shut it down. My sense of it is that studios and labels are practicing the art of ignoring these sites so they won't be forced to do anything about them. I guess that means that suggesting a link between your own unofficial site and the studio site would be a bad idea for all involved. I believe that this aspect of trademark law should be revisited. If, indeed, both the fan and the owner of the mark are being prevented for doing/benefitting from these sites, there should be a way to allow them to remain active.
The above comments are really about the trademark issues. The copyright issues are somewhat different. First of all, copyright infringement is an 'unauthorized copying." There is no requirement that the infringer make a profit or even generate revenue. Selling ad space would definitely put you at risk for getting sued. If you were sued under those facts, you would lose. If you're going to create revenue, license the clips, etc. from the studio. If they won't, don't do it. Second, there are legitimate business reasons to not want fan pages to be able to reproduce clips and/or sound-bytes. These could steal sales of items from the owner. They may want you to come to their site for an "exclusive" look at something. But again, a fan club can be good publicity, and, done properly, can be helpful to the studio, label, artist, etc.
Tough issues. We're just beginning here. More on this as it develops.
-- Michael Leventhal
Producer's Contract
I have been working with a good friend of mine and we have started a independant record label. Operating in the state of Arkansas we have found it hard to get legal information and documents. We are in dire need of a copy of a basic producer's contract. We have found a couple of lawyers in this area that have been able to assits us in our needs. But it has been necessary to give them the documentation (such as contract) and have them adopt them for the needs of our company. Do you have any idea where we may find a basic copy of a company & producer contract?
Carlos
Response:
Carlos,
I'm in my eleventh year of practice, and, incredible as it may seem, I don't know of a good source for a basic producer agreement. The reason, I think, is that every company is different in its business model and its objectives, so no one agreement works for everyone. Also, (sorry about how this will sound) form agreements are inherently unreliable in the hands of lay people.
Among other reasons, specific language is inserted in particular places to reference or satisfy statutes or known caselaw, and these are issues non-lawyers usually do not know. I believe that the best approach is to put a lawyer into the start-up budget (one who knows the field) and create some form agreements that are specific to your operation. Then, when you need a new one, the cost of a new version is minimal. Of course, at the risk of stating the obvious, feel free to contact me should you decide to retain an attorney.
-- Michael Leventhal
Web Developer Contract
We are a firm that designs and builds Web sites for companies and organizations. We would like to draft a standard contract, and were wondering if you know of any form contracts that address the issues particular to building and maintaing Web sites.
Response:
There are more and more books being published which deal with new media contracts, but, so far, I haven't seen a really good form for this particular type of arrangement. However, I have been drafting and negotiating these agreements, from both sides of the equation, for about as long as anyone out there, and have developed several different forms I am partial to. I don't think there is one form out there that covers all situations. A good contract always takes into account the particular way the client operates, what kind of entity he or she works for, the budget of the project, what field it is in (e.g. -- entertainment, reference, commerce, etc.) All these issues must be taken into account. What I generally do is sit down with a client, address all of these issues, and create standard agreements that fit the circumstances. The up-front costs are not insignificant, but, once you have a set of agreements that work for you, it's a minimal amount of work and legal fees to adapt them to each subsequent situation (as long as the situations are similar). If you are interested in discussing the details of this arrangement, feel free to E-Mail or call me at (310) 319-0020.
Thanks for writing.
-- Michael Leventhal
Possible litigation over contract cancellation
I recently signed a contract on behalf of our venue with a promotion company for an artist. 30 Days after the contract was signed I issued a cancelation of contract due to another contract the promoter had with us that they defaulted on.
The promoter than came back requesting $3500 in fees for the cancelation of the 2nd contract. The promoter could not show me a brekout of incurred expense do to the deal or I would have gladdly paid the $3500.. the contract we originally signed has a cancelation for convenience clause, with no fees being owed to either party and this is the caluse I used in issuing the cancelation. The promoter is now threating to sue ...is this possible, would I be better off paying the $3500 and ending the deal?
Response:
There is simply too much I don't know to answer the question. I haven't seen either contract so I don't know about default language, notice language, whether he has the opportunity to cure the default, etc. What was the nature of the default on the first contract? Why $3500? Is that a figure that is stipulated in the contract? Is there a compromise amount? What jurisdiction's laws apply? It looks like you are writing from Japan. Japanese jurisprudence and culture differs significantly from American. Even inside the U.S., laws and culture differ dramatically. What are your desires regarding an ongoing relationship with the promoter? What kind of artist? The answers to all of these and more questions need to be known by your lawyer before he or she can intelligently advise you. That having been said, it is almost never worth it to litigate over $3500. Disputes far in excess of that figure should be resolved. The average small matter in California can easily cost over US $50,000 in legal fees on each side. Don't get caught up in this.
Michael Leventhal
What are the payment rates for Multimedia and CD Games writing?
For example:
- Writing Concepts / Development Proposals.
- Writing Scripts (including those 1,500 pages long).
- Related Writing.
Thanks very much.... Lorenzo
Response:
Lorenzo, I hate to be vague, but there is no way to answer your question in general. Hot writers with track records or name cache, writing on heavily funded projects can make a lot of money, and self-financed projects can ask writers to work on spec, (for zip) with a piece of the back-end as a potential payday. Anything in between is possible. Some writers work in-house for major producers and receive decent salaries, most writers are struggling .
Hope this helps a little.
-- Michael Leventhal
What's a fair royalty rate for a band?
As a member of a Reggae band, my son is about to negotiate a first contract with a recording/promotional company. This company is footing the bill for recording and producing a CD album and is working on booking gigs. What would be a fair percentage of royalties or other fees for the band members to expect for sales of the CD? for performances? for collateral sales such as t-shirts, etc.? They are writing and performing their own music. There are 5 members in the band.
Also, can you point me to any books or internet/web resources that will help these young adults understand the business they are embarking on? (They will be contacting a local attorney to assist them in the negotiations, but any additional background informstion would help -- so they will at least know what questions to ask.)
Thanks for any help you can provide.
Response:
It's hard to answer your questions without a lot more information -- e.g., what kind of interest is there for the band, who is the label, what else has the band done, where are you located, etc.
As a general rule, you should try to avoid giving up merchandising rights at all (t-shirts, posters, etc.) but that isn't always possible.
There are dozens of other important points to be deat with as well. I don't know where you are located, so I can't tell you about local attorneys. Forgive the location bias, but outside of L.A., New York, Nashville, Seattle and San Francisco, there are very few attorneys qualified to negotiate a record deal because there simply isn't enough business to do it on a regular basis. I do this work every day, and you need someone who does to know the ins and outs of a deal, to know the label you are dealing with, and the personalities involved. Be careful who you hire
An excellent book on the subject which goes into as much or little detail as you like is "All You Need To Know About The Music Business" by Don Passman. Please let me know if I can be of further assistance . If you are going to retain an attorney, I would be happy to discuss my rates with you.
-- Michael Leventhal
Art of Famous Personalities
Is it legal to do artistic renderings of celebrities (either from a photograph or other media,) and ultimately sell the work of art for monetary gain?
Thank you in advance for answering.
Pat
Response:
The question of artisitic renderings of celebrities is too complex for a simple yes or no answer. If you are doing the rendering from an existing photograph or other work of art, you will need permission from the creator of the photograph or work. If the individual depicted is a public figure, you may be able to do a rendering of him or her without obtaining his or her permission. You will be safer if your work is not based on a particular already-existing work of art.
-- Michael Leventhal
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