Guide Through the Legal Jungle

Twilight Film Saga Provides Lesson on Unauthorized Documentary Dos and Donts

If you’re a fan of the Twilight books and films, you probably already know that the second Twilight movie, New Moon, will be available on dvd on March 20.

March 20 is also the scheduled release date for two related documentaries: The first is Twilight in Forks: The Saga of the Real Town. It is an “authorized” documentary to be released by Summit Entertainment, the company that produces the Twilight films. The second documentary, Forks: Bitten by Twilight, is to be released by Topics Entertainment, a large multimedia company that normally produces educational videos.

Summit is not thrilled by the “unauthorized” Topics documentary and has filed a lawsuit alleging false designation of origin, trademark infringement, trademark dilution, copyright infringement, and unfair competition.

Your Right to Make Documentary Productions about Popular Films and Books
Topics or anyone else can permissibly distribute a documentary offering commentary about a culturally popular phenomenon like the Twilight saga books and films. Under certain circumstances, the producer of such a documentary may even use excerpts from the books and films under the copyright fair use doctrine.

In this dispute, it’s not the content of the Topics’ Bitten by Twilight documentary that’s bothering Summit. It’s the dvd packaging that Topics plans to use. Summit claims Topics has designed the packaging to confuse consumers into thinking the “unauthorized” Bitten by Twilight documentary is actually authorized.

Topics Potential Wrong Turns
If you accept everything alleged in Summit’s complaint as true, Topics made a series of wrong turns and turned what could have been a completely legal documentary into a dvd project facing an injunction:

• The word “Twilight” on the dvd packaging mimics the very stylized format in which Twilight is written on the films, dvds and other Twilight merchandise.
  
  
• The Topics Bitten by Twilight dvd cover features a quote attributed to Stephenie Meyer, author of the Twilight books, that “. . . And there right where I wanted it to be, was a tiny town called ‘Forks.’” Summit alleges that Ms. Myers did not consent to use of the quote on the dvd cover.
  
  
• Topics is aggressively planning its release date to coincide with the dvd release of New Moon and the Summit Twilight in Forks documentary. This is not per se illegal but may suggest some bad faith on Topics’ part to confuse consumers.

Can You Use Real People in Your Book or Film?

I’m often asked by writers and producers if it’s okay to talk about real people in a book, film, or other creative project - if the names are changed.

 

Changing the Names Is Not Sufficient

 

“Do the names need to be changed?” is not the best question.  The more relevant question is whether the real people mentioned in your creative work are identifiable.  You can identify someone even without using the person’s real name.  For example, your readers or viewers might be able to identify the person through your mention of a nickname, geographic location, physical description, personality trait, or real-life events in which the person was involved. 

 

If readers and viewers can identify the person discussed in your work, there is potential risk for defamation, privacy, and related claims.  You should assess that risk and make your best efforts to minimize it.  

 

Calculating the Risk of Using Real People

 

Your risk assessment will depend on several factors such as

• How did you acquire the information about the person?
• Are you adding fictional elements to any of  the real-life events discussed?
• Are the portrayals flattering?
• Are the portrayals accurate?

Your risk assessment also depends on whether the people in your story are public figures or private individuals. Public figures have fewer privacy rights but stronger publicity rights. Also, to make a successful defamation claim, public figures must prove you made the false statement with actual malice. In contrast, a private individual need only prove you were negligent in making the false statement. While the distinction between actual malice versus negligence may sound like legal gobbledygook, the distinction often plays a pivotal role between winning and losing a defamation lawsuit.

 

My book, The Permission Seeker’s Guide Through the Legal Jungle, offers an in-depth discussion of defamation and privacy issues from the perspective of authors and other creative producers who want to stay out of trouble. The book also offers guidelines for minimizing the  risk of defamation, privacy and similar claims through the use of annotated manuscripts, disclaimers, releases, and life story rights agreements.  You can view the full table of contents for The Permission Seeker's Guide Through the Legal Jungle here.

We Are Marshall Decision Emphasizes that Facts Are Not Copyrightable

The Real-Life Event

 

On November 14, 1970, a Southern Airways flight carrying the Marshall University football team, most of its coaches, and numerous fans crashed into a West Virginia hillside. There were no survivors.

 

Among the outcomes of the tragedy was the decimation of the Marshall University football program. After a struggle to rebuild itself, the football team won an emotional last-minute victory over Xavier during the first post-crash home game. The airplane crash and its aftermath received national media coverage.

 

The Tragedy Yields a Documentary and a Feature Film

 

In 2000 Deborah Novak and John Witek  produced Ashes to Glory, The Tragedy and Triumph of Marshall Football, a documentary memorializing the crash, its aftermath, and the rebuilding of the Marshall University football program.  After unsuccessfully trying to option rights to Ashes to Glory from Novak and Witek, Thunder Road Film Productions in conjunction with Warner Brothers produced and released We Are Marshall a 2006 feature film based on the Marshall University plane crash.  The Thunder Road production weaves fictional elements into the fact-based story.

 

Tips for Naming Your Film, TV Programs and Books from Hari Puttar vs. Harry Potter

Warner Brothers, which owns the rights in the Harry Potter motion pictures, unsuccessfully tried to block release of the Bollywood film, Hari Puttar: A Comedy of Terrors.  While Warner Brothers succeeded in delaying the originally planned September 12, 2008 release in India, a New Delhi court ultimately dismissed the lawsuit.

Even though the Hari Puttar lawsuit was decided under Indian law, the case provides a good excuse for me to discuss selecting titles for your films and television programs.  Your title can raise objections from a producer with a similarly titled media production or from a trademark owner whose trademark finds itself in your title. 

Borat Producers Know the Importance of Personal Releases

Say what you want about the 2006 film, Borat, and its low-brow, often vulgar humor. You have to admit the Borat attorneys know their way around a personal release.

Numerous people who appeared in the film have sued for right of privacy and similar violations. To my knowledge, the Borat producers have triumphed in every lawsuit. That’s because each participant signed an apparently bullet-proof written release waiving the right to sue in connection with their appearance in the film. You can read one of the most recent Borat court decisions here.

Did the Borat Producers Play Fair?

SXSW Illustrates Phenomenon in Licensing Music for Film, Television, and Multimedia Productions

The annual South by Southwest (SXSW) Festival in Austin,Texas is currently wrapping up. SXSW began twenty-two years ago as a small showcase for independent bands and has grown into a massive music, film and interactive technology extravaganza

One effect of the growth is the rise in film, television, and multimedia producers who attend SXSW in search of good music for their productions. In a recent Wall Street Journal article, reporter John Jurgensen profiles SXSW as a source for film and television background music.

The phenomenon is consistent with the advice I often give to my producer clients who want good music for their productions but have limited budgets for music acquisition. I recommend using original music by independent art­ists.

Clinton Campaign Learns the Perils of Stock Footage with the Red Phone Ad

Many of you probably saw news coverage of Hillary Clinton’s red phone ad over the past week.

Stock Footage Actress is Reluctant Participant in Clinton’s Red Phone Commercial

The ad focuses on Clinton’s claims that Barack Obama lacks the experience to serve as President. It shows a series of sleeping children and asks voters which candidate they would want to see answering a 3 a.m. emergency phone call to the White House. One of the sleeping children in the commercial is Casey Knowles.  The depiction of Knowles is from stock footage made eight years ago. Getty Images now owns the footage. 

It turns out Knowles is a staunch supporter of Barack Obama’s presidential candidacy.  Knowles has campaigned for the Obama campaign, has attended his rally, and served as a precinct captain for the Washington caucus. Knowles has laughingly suggested getting together with the Obama campaign to produce a counter ad.

The Downside of Stock Material Usage

There is nothing wrong with using properly licensed stock footage. Producers do it all the time. However, as I discuss in The Permission Seeker’s Guide Through the Legal Jungle and as the Clinton campaign has learned, using stock footage can carry some downsides:

Fewer Squeaky Clean Films

A Guide Through the Legal Jungle Trivia Question

Many parents want to watch movies at home with their children – but without the profanity, nudity, and other potentially objectionable material. Imagine a Basic Instinct in which Michael Douglas and Sharon Stone just hold hands. A July 2006 federal court ruling shut down the companies that distribute sanitized versions of popular movies finding those companies guilty of copyright infringement. Unaffected by the ruling are companies that offer software that bleeps out profanity and obscures nudity while the original dvd plays on a computer or specialized dvd player.  Do you know which one of the following four answers explains why these software-based filtering companies are still in business?

1. Federal law specifically protects the software-based filtering business model.
2. The software-based filtering companies have entered licensing agreements with Hollywood studios.
3. Most of the software-based companies are foreign-based so a US court decision does not affect them.
4. The software-based filtering companies work on movies that are in the public domain.