Guide Through the Legal Jungle

Some Facts about SAG-AFTRA Low-Budget Contracts

The Screen Actors Guild‐American Federation of Television and Radio Artists (SAG-AFTRA) is the union that represents over 165,000 actors and other performers. SAG-AFTRA actors are supposed to work only for producers that are SAG-AFTRA signatories. So that SAG-AFTRA performers can work on films with low production budgets, SAG-AFTRA makes five alternative signatory arrangements available to independent film producers.

Variation of Basic Codified Agreement. The low-budget agreements vary some of the compensation and other terms offered in SAG-AFTRA’s Basic Codified Agreement, the agreement applicable to a full budget feature film intended for theatrical release. While each of the low-budget agreements is about six to twelve pages, the Basic Codified Agreement is over 700 pages. For any terms on which a low-budget agreement is silent, the terms of the Basic Codified Agreement apply.

Production Benefits of Low-Budget Contracts. Most significantly, instead of the $933 daily rate or $3,239 weekly rate under the Basic Codified Agreement, independent film producers qualifying for one of the low budget agreements pay SAG-AFTRA performers deferred and/or reduced rates. The low-budget performer rates effective as of July 1, 2016 are as follows:

• $125/day for the Student Film Agreement and the Short Film Agreement (which payment can be deferred until the film receives distribution)
• $125/day for the Ultra Low Budget Agreement
• $335/day or $1166/week for the Modified Low Budget Agreement
• $630/day or $2190/week for the Low Budget Agreement

Other financial benefits of the low budget agreements include lower overtime rates and no consecutive employment obligation unless the performers are working on an overnight location. Producers working under low-budget agreements must still pay the performer’s pension and health contribution (equal to 17.3% of performer’s compensation).

For U.S. Productions Only. SAG began offering low-budget agreements in part to persuade producers to keep their productions within the United States. As a result, films using low-budget agreements must be completely filmed in the United States. Not even one scene can be filmed outside the United States. Going outside of the United States bumps the production up to the Basic Codified Agreement.

For Theatrical Productions Only. The low-budget agreements are only for productions meant for initial theatrical distribution. If a production goes straight to television, dvd, video-on-demand, Netflix, etc. rather than to theatres, SAG-AFTRA will want the producer to make step-up payments to the performers per the Basic Codified Agreement. There are some circumstances where SAG-AFTRA will waive the step-up payments for initial non-theatrical releases if there has been no theatrical exhibition within three years of shooting the production.

Processing Time. SAG-AFTRA recommends that independent producers give themselves at least six to eight weeks to complete the required paperwork and make arrangements for producing under a low-budget agreement.

For More Information. The Basic Codified Agreement as well as samples of all the low-budget agreements are available online. SAG-AFTRA responds to FAQs online and offers free monthly workshops in Los Angeles and New York that walk you producers through the low budget signatory process.

Getting Music for Your Film and Making Soundtrack Album Deals

There are a number of distinct deals that go into the making of a film soundtrack and a soundtrack album. In this blog posting, I go through the steps taken by a film production company when it needs music for its movie and wants to release that music on a soundtrack album.

Required Background Knowledge

There are at least two areas of the music business you need to understand before you can understand the deals behind the making of a soundtrack and soundtrack album.

Song Versus Sound Recording. Every recorded song has two distinct copyrights - a copyright in the song and a copyright in the sound recording. The copyright in the song is generally owned by the songwriter, or her music publishing company. The copyright in the sound recording is generally owned by the record company.

Music Publishing. I'll be referring to several types of music publishing licenses. If you need to brush up in that area, take a look at the four-part blog posting on Music Publishing: How Your Songwriting Generates Income.

Now onto the example

Step One - Acquisition of Songs for Your Film

The film production company acquires songs by either commissioning songwriters to provide original music or licensing existing songs.

Commissioning Songwriters to Provide Original Music. The agreements between the songwriter and the film company often look very similar to single song agreements between songwriters and music publishing companies. The song is frequently done as a work made for hire which means that the film company will own the copyright in the song. With some negotiating power, the songwriter might retain a portion or all of the copyright in the song. The songwriter is normally compensated by receiving a fixed fee plus a negotiated publishing royalty from specified non-theatrical uses of the music. The publishing royalty split is generally 50/50 - the same as the traditional royalty split between a songwriter and music publishing company.

Licensing Existing Songs. When a film production company wants to use an existing song in its movie, it needs a synchronization license (or synch license) from the songwriter or music publisher. If the film production company plans to do a soundtrack album, it will also need a mechanical license to authorize the recording and distribution of the song on the soundtrack album.

Step Two - Acquisition of Sound Recordings

If the film production company has commissioned original music, it will need to hire performers to produce a recording. If the film company has licensed an existing song, it can either use an already existing recording of that song or record its own version of the song. If it decides to use an existing recording of the song, it must also get a master use license from the record company that released the recording.

Step Three - The Soundtrack Album Deal

If the film company decides to work with a record company to release a soundtrack album, it enters a soundtrack album deal with the record company. A soundtrack album agreement between a film company and a record label has many similarities to a recording contract between a performing artist and a record label. The film company delivers a master recording of the soundtrack music to the record label. The record company pays the film company an advance and royalties on soundtrack album sales.

Important points of negotiation for the soundtrack album deal include (i) the amount of the advance and royalties to be paid by the record company to the film company and (ii) how the release of the soundtrack album will be coordinated with the release of the film.

If the film production company commissioned original music, and thus holds the copyright to the songs on the soundtrack, it will receive music publishing income (e.g., mechanical and performance license fees) in connection with the use of the songs on the soundtrack album. Normally, the film company shares this publishing income with the writer of the original music pursuant to the film company/songwriter agreement we talked about in Step One.

Title Reports and Title Opinions for Films, Books & Other Creative Stuff

Trademark protection – and not copyright protection – protects titles. However, trademark protection is not available for all titles. While the title of a film or book series may be protected, the title of a single film or single book is typically not protected. Even though the title of your single film or single work is not protected, your selected title may violate someone else’s trademark. That’s where title reports and title opinions come in.

What Is a Title Report?

A title report lists productions with similar titles to your proposed title as well as any trademarks similar to the proposed title. Title reports are structured much like trademark clearance reports that a business obtains prior to choosing a name for its company or product. Most title reports cover a search of the Copyright Office’s records, the Trademark Office’s records, and other entertainment databases. A title report can run a few dozen to a few hundred pages, depending on the number of similarities found. Professional search companies that offer title reports for entertainment works include Thomson Compumark and CT CorSearch.

What Is a Title Opinion?

A title opinion is distinct from a title report. A title opinion is a letter normally prepared by an attorney which indicates, in the attorney’s opinion, whether the title is available as the title for your movie, television program, etc. The attorney bases her title opinion on the results of the title report. The title opinion normally runs one to five pages.

For More Details

There is a discussion about title reports and title opinions and suggestions on how to select a trouble-free title in my book, The Permission Seeker’s Guide Through the Legal Jungle.

Does a Company or Organization Need Permission to Offer a Movie Screening?

It’s fine to pop in a dvd to entertain your family or a few friends with a movie at your home. Those are private performances of the movie.

In contrast, a business, private club, or social organization offering movie screenings is a public performance of the movie. Public performance is one of the exclusive rights controlled by the copyright owner. Hence, if the film is still protected by copyright, you need permission to screen it in public. It doesn’t matter whether the screening organization is a non-profit or whether or not admission is charged.

What’s a Public Performance?

It’s difficult to identify the exact point at which a private performance crosses the line and becomes a public performance. As a general guideline, if you make the screening available at a place open to the public or to a substantial number of people beyond a family or a group of friends, that can qualify as a public performance. Even a performance taking place in a semi-public place such as a private golf club or a condominium association club house have been deemed to be public performances.

How to Obtain a License to Screen a Movie

The Motion Picture Licensing Corporation offers a blanket license for the non-commercial exhibition of motion pictures. It issues licenses to numerous entities including corporations, government agencies and non-profit organizations.

Keeping It Legal While Getting Your Next Harry-Potter-Fix

I admit it. I’m a Harry Potter fan (albeit perhaps not a die-hard fan). I’ve “read” all the books a la Jim Dale’s superb audiobook narration and I’ve seen four of the films and have every intention of eventually catching films nos. 5 – 7 by dvd or netflix one day soon.

Now that the final film is out, how will extreme fans get their next Harry-Potter-fix? Here are some suggestions for the fans who want to keep things legal:

Websites & Books. Fans can create websites, social media networks, and reference books that explore and expand the Harry Potter world. J.K. Rowling and Warner Brothers typically welcome most such fan creations. And even if they didn’t, the First Amendment gives all fans the right to comment on and even criticize or parody the object of their fandom.

Fan Fiction/Films. Fan fiction and fan films are potential avenues for Harry Potter fans. While much fan fiction and fan films qualify as copyright infringement, Rowling has embraced fan fiction as long as it remains non-commercial and does not push the Harry Potter world into highly objectionable directions.

The Caveat. Nevertheless, Harry Potter fans should be aware that their idolatry can go beyond legal boundaries. Fan don’ts include selling products or commercial advertising in conjunction with fan creations and inaccurately referring to their offerings as the “official, authorized versions”. Rowling did file a lawsuit against a Michigan-based publisher that planned to publish a 400-page Harry Potter compendium duplicating much of Rowling’s original writing.

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?