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Entertainment Law Asked & Answered

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Entertainment lawyer Gordon Firemark answers listeners’ entertainment law questions

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Entertainment lawyer Gordon Firemark answers listeners’ entertainment law questions

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The goto reference for entertainment law questions

By Joe and Lynda H - Oct 02 2016
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If you are a podcaster, this show should be at the top of your subscribed list. We consider this podcast to be "the goto reference" for entertainment law questions, providing quality answers often not available at any price.

iTunes Ratings

3 Ratings
Average Ratings
2
0
0
0
1

The goto reference for entertainment law questions

By Joe and Lynda H - Oct 02 2016
Read more
If you are a podcaster, this show should be at the top of your subscribed list. We consider this podcast to be "the goto reference" for entertainment law questions, providing quality answers often not available at any price.
Cover image of Entertainment Law Asked & Answered

Entertainment Law Asked & Answered

Latest release on Sep 17, 2020

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Rank #1: Entertainment Law Asked & Answered – Copyright Renewals?

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www.firemark.com

A reader wrote in with a question about whether copyrights need to be renewed.

Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

I'll answer the renewal question, and explain how copyright duration works, in just a moment.

So, the question posted in the comments on my blog asked whether copyright registration needs to be renewed every year.

The quick answer is no. Modern Copyright law doesn't require (or permit) any renewal. Once the term of copyright protection expires, the work automatically falls into the public domain.

So, how long does copyright protection last?

Well, first let me explain when copyright protection BEGINS.

You see, when you create an original work of authorship… that is, original expression of ideas, and you fix or record that expression in some tangible form, so it can be reproduced and so forth… that work is automatically protected by copyright.

So… from the moment you set pen to paper, press record on the video camera or whatever, you own a copyright in what you've created.

And that copyright will protect your work for a good long time… 70 years, in fact, after you die. Here in the US, and in most other countries around the world, copyright duration is Life+70 years. There are some other countries where it's Life+50, but for most it's 70.

Works created as works made for hire, or anonymously or under a pen-name, are protected for 120 years total, from the date of creation, or 95 years from the first publication… whichever occurs first.

So that's the rule for works created today, and anything that was created after 1977. Works created before January 1, 1978 fell under several different schemes, and they had to be registered, and that registration DID have to be renewed, usually after the 28 years. But the duration of those copyrights is subject to a fairly complicated set of rules, so it's best if you’re dealing with questions about one of these works, you consult an entertainment or copyright lawyer who can help you out precisely when the works fall into the public domain.

If you have a question you'd like to see here on Asked and Answered, just visit firemark.com/questions and let me know.

And do me a favor, subscribe to the YouTube channel, so you don't miss out on any of these videos.

See you next time!

- - - - - - - - - - - - - - - - - - - - - - - - - - - - The post Entertainment Law Asked & Answered – Copyright Renewals? originally appeared on Entertainment Law Offices of Gordon P. Firemark. Entertainment Law Offices of Gordon P. Firemark - Los Angeles Entertainment Lawyers - Theatre, Film, TV & New Media

Jul 24 2015

2mins

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Rank #2: Posting Cover Videos of Songs – Entertainment Law Asked & Answered

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http://firemark.com

Can you cover a song and post a video of it on your YouTube or Facebook?

Hi, I'm Gordon Firemark, and this is Asked and Answered, where I answer common entertainment law questions, so you can take your entertainment industry career and business, or just your hobby, to the next level. This one’s going to debunk a common misconception… stick around!

So, a Facebook group I'm part of has had a lively discussion going about covering songs and posting videos of their versions on YouTube and Facebook.

People are throwing all kinds of information around, and that's one of the big dangers of using online forums for your information. Not everyone with an opinion is an expert… So you're relying on people you don't know, and who don't have any particular obligation to get things right for you…

So let's unpack this a bit. Copyright can be tricky, and especially music copyright.

OK, first, we have to talk about the fact that for every recorded song, there are actually TWO copyrights.

That's right. Most people think about the RECORDING being copyrighted… But what they don't think about is that before the song could be recorded, it had to be written and composed… And that work was done by a songwriter, who might or might not be the artist who made the recording.

So, we've got a copyright in the Sound Recording, and that's owned by either the Artist who made the recording, or the Record Company that released it.

AND, we have the copyright in the Musical Composition. That is owned either by the songwriter(s) who created the song, or by the Music Publisher(s) that administer the song copyrights.

So, now let's look at “covering” the song. When you re-record a song, then you're not actually using the original Sound Recording… So that's not an issue.

But you ARE making a copy of the Musical Composition. And that requires a license.

Fortunately, the copyright law provides an automatic mechanism for getting this license. It's referred to as “compulsory licensing”, which just means that the owners of the song can't say no if you're just making a new recording. You simply have to pay a royalty rate on all copies of your new recording that you distribute. That rate is 9.1 cents per copy… And you can get this licensing handled, in most cases, through an outfit called the Harry Fox Agency, by visiting http://harryfox.com. And they take care of paying the publishers and songwriters what they're supposed to get.

BUT, that's not the end of our analysis… You see, that compulsory license only allows you to make and distribute what the copyright law calls “phonorecords”, which are essentially audio-only recordings, like CDs, Tapes, Vinyl copies, and yes, mp3 files, but  not videos, or other formats where the music is combined with other stuff, like pictures or video footage.

For that, you need another kind of license, called a “synchronization” or “sync” license. And that license isn't as easy to get. You'd need to go straight to the owner of the copyright (the publisher or composer) for that permission… And you'd need to submit a formal request, and they'd quote you a license fee.  Which could be anything… Or they could just refuse to give the permission at all.

And, if you wanted to post the video (or the audio) as a podcast, or to stream on your own website, there'd be other licenses you need to get… some from the publisher, and some from organizations like ASCAP and BMI. And possibly even from SoundExchange.

So that's the straight poop on making cover videos of your favorite songs.

But in the Facebook group I was looking at, people were questioning WHY so many fan-recorded cover videos of famous songs are showing up everywhere, and we're not hearing much about folks getting in trouble for it.

Well, that's a function of a couple of things.

First, the law provides a way that copyright owners can get stuff taken down from sites like YouTube and Facebook pretty quickly and easily by issuing something called a DMCA Takedown notice. And only the person who originally posted the offending material would really know about it, if the video just disappeared from their feed or stream, right?

Second, simple economics. First off the owners of the copyright have to find out about the infringing material. On YouTube, they've got some pretty slick software tools called ContentID that helps them identify a lot of this stuff. That system also allows them to just decide instead of having the video taken down, to place ads in and around it, and to collect the money those ads generate.

But even if that's not their game, these copyright holders know that suing a teenage kid for posting a fan cover video isn't going to earn them any public-relations points. And, lawsuits are expensive, so suing would mean throwing good money down the drain. Unless the defendant (that's the person who gets sued) has lots of money or other assets, the plaintiff could win, but would probably never collect.

But ultimately, relying on these factors is just plain dumb. You never know when a publisher or songwriter is going to be angry enough to pursue something, and lawsuits are expensive, win-or-lose. And, they're no fun. Even if all you get is a DMCA Takedown… That counts as what YouTube calls a “strike”, and if you get too many of those, they'll shut down your account and ban you from the service.

And I'm pretty sure Facebook has a similar policy.

So, my recommendation that you always get permission for what you're doing. But I'll have to save the “how-to” of that for another video.

That's it for this session of Asked and Answered. Submit your entertainment law questions at http://firemark.com/questions.

See you next time.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - The post Posting Cover Videos of Songs – Entertainment Law Asked & Answered originally appeared on Entertainment Law Offices of Gordon P. Firemark. Entertainment Law Offices of Gordon P. Firemark - Los Angeles Entertainment Lawyers - Theatre, Film, TV & New Media

Oct 20 2016

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Rank #3: Is Copyright Registration Required Before Licensing – Entertainment Law Asked & Answered

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www.firemark.com

Does a song have to be registered with the copyright office before you can obtain a license to use it in your film or other project?

Hi, I'm entertainment lawyer Gordon Firemark, and this is Asked and Answered, where I answer common entertainment law questions, so you can take your career to the next level.

Michael wrote:

With USCO processing time for e-filing generally up to 8 months (13 for paper!), and $800 for expedited processing, my question is: for purposes of clearing a piece of music (say for use in a TV show), would that specific piece have to have gone all the way through the Copyright Office and received a certificate of registration from the USCO?

A:   No.

You don't need to have a registration to own a copyright, or to do anything with the copyrighted work. Clearing a piece of music simply involves tracking down the rightful owner or owners and getting the required permission in the form of a license. Whether the work is registered is largely irrelevant.

Even if the music in question is NEVER registered with the copyright office, you can obtain a license… If you can find the owner… And that's one of the main reasons we have a registration system… So we can track down who owns a particular work.

With music, there are a few other ways… Start by searching the online catalogs of the Performing Rights Organizations ASCAP, BMI and SESAC… It's likely that the work is registered with one of them, and that catalog will tell who the songwriters, publishers and administrators of the song are.  Then, contact those folks with your license request, and you're good.

If you still can't find who owns the piece, you can try searching Google, YouTube, SoundCloud, and any other online resources, but the results aren't going to be quite as reliable. If you aren't certain you've nailed down the owners, I'd recommend using a different piece of music.

And to get your question answered here, just hit me at http://firemark.com/questions.

=============

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - The post Is Copyright Registration Required Before Licensing – Entertainment Law Asked & Answered originally appeared on Entertainment Law Offices of Gordon P. Firemark. Entertainment Law Offices of Gordon P. Firemark - Los Angeles Entertainment Lawyers - Theatre, Film, TV & New Media

Feb 13 2016

2mins

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Rank #4: Using Celebrity Guests’ Photos to Promote an Interview Show – Entertainment Law Asked & Answered

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http://firemark.com

Matt has a question about promoting his podcast episodes with images of his celebrity guests.

I'm entertainment lawyer Gordon Firemark, and this is Asked and Answered, where I provide answers to common legal questions, so you can take your career and business in entertainment to the next level…

Q: I'm curious about image usage. My podcast is a celebrity talk show, and I always create a title card for the episode using a headshot. Often, these are not provided and Google is where I find them.

I know the general assumption is that if it’s of the person you're featuring you're in the clear. But it's my understanding that's sometimes not the case because the subject may not be the rights holder to that image.

A: (address copyright, derive works, right of publicity, and approval rights)

I suggest you always get permission from the owner of the image you use. Google search is a dangerous approach.

Celebrities have images available for this stuff, so ask for one when booking them.

The agent, manager, or publicist should have no problem providing one. Ideally, then, when the guest signs that release, you'll be covered for the photo, too. If not signing a release, make sure you get them to SAY (on recording and/or in email) that they have the rights to the photo…

But if you're making major changes to the image (I.e., more than just cropping), the celebrities will likely expect an approval right. So it pays to run it by their representatives before going live. You don't have to actually ASK for approval, just say, “Here’s the image I'll be using to promote your episode”. If they have any issues, they'll certainly let you know.

So, that's it for this session. You can get that free podcast guest release that i mentioned at http://podcastrelease.com.

And if you have a question you'd like to see featured on Asked & Answered, hop on over to http://firemark.com/questions.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - The post Using Celebrity Guests’ Photos to Promote an Interview Show – Entertainment Law Asked & Answered originally appeared on Entertainment Law Offices of Gordon P. Firemark. Entertainment Law Offices of Gordon P. Firemark - Los Angeles Entertainment Lawyers - Theatre, Film, TV & New Media

Aug 12 2016

3mins

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Rank #5: When Should You Register Your Copyrights – Entertainment Law Asked & Answered

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http://firemark.com

When should you register your copyrights?

Hi, I'm Gordon Firemark, and this is Asked and Answered, where I help you take your career and business in entertainment to the next level.

One of the most common questions I get from clients I the business is about when they should register their copyrights.

So, here goes…

First off, registration is not necessary to perfect the copyrights in a work, but the benefits of registration, especially early registration are so significant, copyright owners should make a practice of registering their copyrights well in advance of any trouble arising. I recommend doing this as early and often as possible.

To register a copyright, the copyright owner submits an application to the Copyright Office with information about the work, the author, and the circumstances of its creation. Online applications can be filed for about $35. Filing a paper application currently costs a bit more.

There are a bunch of advantages to filing your registration early, but probably the most important are the ability to obtain statutory damages and attorney’s fees.

Statutory damages do not depend on the actual harm to the copyright holder or the ill-gotten gains of the infringer, and awards can range between $750 and $30,000 for each infringed work. In the case of willful infringement, awards can go as high as $150,000.

But, to be eligible to receive these statutory damages and attorney’s fees, a copyright owner has register the work, (a) prior to publication, (b) before the infringement occurs, or (c) within three months following the first publication of the work.

Otherwise, only actual damages or infringer’s profits may be recovered, and for most copyright cases, those can be difficult and costly to prove, and they usually don't add up to as much.

Also, in many jurisdictions no copyright infringement suit can be brought until a certificate of copyright registration has been issued, so you can sometimes experience a big delay.

What are some of the other benefits of early registration?

Well… When you have a registration, you get a legal presumption of the validity of the copyright and of the facts stated in the copyright certificate and records.

You establish a public record of copyright ownership, which makes proving infringement easier.

You can record the registration with the U.S. Customs and Border Protection to prevent the importation of infringing copies.

And, if you're looking for funding, a registered copyright will help build the confidence of lenders and investors.

For many works, like brochures and pamphlets, the process is pretty straightforward and you might not need help from your lawyer, but for more complex situations having legal help will streamline the process and improve the odds that everything goes through without a hitch.

Copyright lawsuits are colossally expensive, and the costs can easily add up to more than the actual damages sustained, especially in isolated instances of infringement. What that means is that a copyright holder could, as a practical matter, have no real remedy for that infringement unless they've registered early and are thus able to get an award of statutory damages and attorney’s fees.

If you don't register your work in a timely manner, you will probably have some limits on what you can do if your work is infringed. So, if your business has any copyright material, it makes sense to have a system in place to get things registered so you have the full protection of the law.

That's it for this episode of Asked and Answered. If you have a question you'd like to see featured here, submit it at http://firemark.com/questions.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - The post When Should You Register Your Copyrights – Entertainment Law Asked & Answered originally appeared on Entertainment Law Offices of Gordon P. Firemark. Entertainment Law Offices of Gordon P. Firemark - Los Angeles Entertainment Lawyers - Theatre, Film, TV & New Media

Sep 02 2016

4mins

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Rank #6: Interview Releases – Entertainment Law Asked & Answered

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www.firemark.com

Do you need permission to write a book based on your interviews with public figures?

Hi, I'm entertainment lawyer Gordon Firemark, and this is Asked and Answered, where I answer common entertainment law questions, so you can take your career to the next level.

So, Stephen has been interviewing some celebrities, and plans to feature their remarks, stories and such in a book he's writing.

Some of the interviews are in-person, sit-down type discussions, and some are being done by email, with the celebrities writing their answers to the questions themselves.

Does Stephen need to have to have these folks' permission to include them in the book? Do they have to sign a release form? Even if they write the answers themselves?

A: As you probably realize… Celebrities can and do sue when their names or likenesses are used in a way that creates a false endorsement or implies some kind of sponsorship or approval of the material. Now, in the case of an interview included in a book, it's probably not a commercial use that would give rise to a Right of Publicity claim, but a celebrity with a smart lawyer will probably claim that even though there was consent to the interview, you used it in a way that wasn't authorized… So that's a breach of contract, or even a Fraud claim. And, if the celeb actually wrote the words you used… That could mean a copyright infringement claim.

Sure, you have a bunch of defenses… Free Speech, Newsworthiness of the content, Fair Use (of copyright material), and there's always the alleged consent. But unless you have something in writing, you're going to be fighting an uphill battle.

Written consent is always the best defense. It's your “get out of trouble free” card when these claims, however frivolous they might be, come along.

But written consent isn’t always possible. Lots of folks get leery when presented with a release form to sign… So, if you're recording the interview (again, in most states you need consent to do that), you should record the person saying “yes” in answer to your request.

So, if it was me, I'd start the recorder, and say, “I'm Gordon Firemark, and today is July 3rd, 2015. I'm recording this interview with Suzy Starlett. Suzy, you understand that I'm recording this interview, and you consent to me using this recording as part of my book (which is tentatively entitled “homely Hollywood harlots” and in all other media and languages, everywhere in the world, forever?”

Make sure the recording can hear and see (if it's video) that the person is giving consent.

Now, if the person you're interviewing a true public figure, someone who's in the public eye because of their work, or other events they've participated in, you are probably OK, even without the consent, because the First Amendment provides protection, at least against the privacy kinds of claims. But do yourself a favor… Get the consent.

Now, in the situation where the celeb is writing the responses him or her self, you absolutely MUST get written permission to use it. Without it, you won't be able to publish your book.. Publishers will insist.

Interestingly, the question of who owns copyright in an interview is a subject of some controversy. The copyright office has said that it's two copyrights. The interviewer owns the questions, and the subject owns the answers…. Again, unless you have something in writing, or some other proof of the consent, and authorization to use the thing. So, just avoid any doubt about things… get a release. In writing, if at all possible.

And by the way… This same advice goes for anyone creating any kind of media. Blogs, podcasts, YouTube videos… If you've got other people's stuff (whatever kind) in your content… You need to have a release to prove you're free to use it.

For a free downloadable version of that oral release I just did, head over to http://firemark.com/interviewrelease

And to get your question answered here, just hit me at http://firemark.com/questions.

=============

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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Feb 05 2016

4mins

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Rank #7: Fair Use: Presidential Debate Footage – Entertainment Law Asked & Answered

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http://firemark.com

Paul has a question about using clips from a presidential debate from years ago on his radio show.

Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

So, here's Paul's question:

“I do a live radio call in talk show on investments. Recently I wanted to play an audio clip from the 1984 presidential debate… widely available…

About 20 seconds out of the two hour show. Is that permissible to play it from You Tube or other source?”

Well, Paul,  the basic rule is that the clip you're using belongs to someone, and you're supposed to get permission.

In all likelihood, that someone is the TV network where the clip was originally carried.

Now as is the case with presidential debates, it's likely that all three networks carried the debate, so you could take your pick.

My guess is that they'll grant you permission to use the tiny snippet, and that's that…

But, you might not even need to get that permission…

That's because what you're proposing to do could be considered “fair use”, and thus not a copyright infringement at all.

But fair use is a tricky thing because it has to be judged on a case-by-case basis.

There's not really any bright-line rule to state what is and is not fair use.

So, we have to rely on complex a four-factor “test” that needs to be analyzed for each alleged infringement.

So here's how Fair Use works…

Fair use is a doctrine that evolved under the old US copyright law and then was codified or made a formal part of the copyright statute when it was updated in 1976. The principle is simple.

To deal with the inherent conflict between free speech principles of the First Amendment and restrictions on copying imposed by the copyright law, it was necessary to create a defense to infringement for certain kinds of uses under certain circumstances.

To do this the courts and Congress set up a multi-factor test. It looks at four factors.

The first of these is the purpose and character of the alleged infringing use. Educational, scholarly, critical criticism, commentary and other artistic or transformative uses will weigh in favor of fair use, while commercial or more verbatim copying will tip the balance in the other direction.

The second factor is the amount and substantiality of the portion taken from the original. This is where the idea that taking only a small snippet is okay, but in reality it's actually possible to take the very heart of a piece without copying very much of it at all.

The third factor is the nature of the original work. If it's an artistic work it's going to be treated very differently than if the original was something very commercial like a billboard ad or a TV commercial jingle.

The fourth element or factor is the potential impact on the market for the original if the infringement were allowed to continue.

Now obviously if there's no real market harm this factor is going to favor fair use. If the market is strong for this kind of thing and the copying looks like it's just a way to avoid paying for rights or whatever, things are going to come out differently in this factor.

Now, none of these factors is dis-positive of the question. The court will look at the overall balance of the factors in making its determination on whether something is fair use.

I want to emphasize that this is not a one size fits all thing. Each alleged infringement has to be viewed standing alone by the court in a copyright infringement case. It's not something you just decide, “This use is fair use and so I'm going to go ahead.”

The trouble with that is… By the time most folks get to argue about whether a use is fair, they're already being sued and they're paying lawyers tens of thousands of dollars to defend them.

If you're doing a project where the time and expense justify it and if you're sure you need a particular bit of copyright protected material, the best course of action is to ask for permission or license, even if that means paying something for it. If you're certain that permission will be denied and you're fairly sure that fair use will apply it's wise to get a lawyer's opinion letter on the subject.

So, Paul, I hope this helped. Thanks again for your question.

If you have a question you'd like to see featured here… visit http://firemark.com/questions to submit it.

I'll see you again soon!

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - The post Fair Use: Presidential Debate Footage – Entertainment Law Asked & Answered originally appeared on Entertainment Law Offices of Gordon P. Firemark. Entertainment Law Offices of Gordon P. Firemark - Los Angeles Entertainment Lawyers - Theatre, Film, TV & New Media

Oct 14 2016

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Rank #8: Location Releases – Entertainment Law Asked & Answered

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http://firemark.com

George writes in with a question about location releases and permissions.

I'm Gordon Firemark and this is asked and answered where entertainment law questions so you can take your career and business to the next level.

So, here's George's question:

I am a filmmaker and have permission from a tribute band to film them at a concert in a theater in Connecticut. The theater said the band can be filmed there but an agreement needs to be signed basically saying that the footage cannot be used for commercial use or they will sue, or they want 800.00 to allow us to film there. It seems this is not an issue of liability or they would demand the fee for insurance purposes.

What right does the theater have to sue the band or even me for filming the band's performance in their theater?

What rights do I have as the filmmaker in getting permission from the band to use them in my film while performing at this theater?

Well, George the band doesn't own the theatre, so they don't have the right to grant permission to film there. Only the owner can do that, and he can put whatever conditions on the filming he wants. And that includes charging a fee. And, it's common for location owners to charge a fee for use of their premises…

Filming on the premises without permission is probably a form of trespass, and can give rise to civil and possibly criminal liability. So that's how they have the right to insist on a payment…

But trespass is a state law issue, and varies from place to place… So check with a local lawyer familiar with the issue.

An interesting wrinkle though, is whether using footage captured in a club or theatre within the context of a film is really “commercial”. In first amendment discussions, where we look at a government restriction, it probably wouldn't be considered commercial. That term would more likely apply if the film is being used to promote the band, or a product of some sort, like an album or concert tickets. So, it makes sense to talk with the theatre about what they mean, specifically, when they say no commercial use.

But ultimately, $800 is cheaper than any lawsuit… Even if you win. What's your time worth for defending against this?

So, the practical advice, pay the fee, or don’t use the footage.

Now, if you have a question that you'd like to see answered here, please send it to me at http://firemark.com/questions

=============

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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May 27 2016

2mins

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Rank #9: How do I Know Whether an Offer is a Good One – Entertainment Law Asked & Answered

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Amin wrote in with a question about how to evaluate a film option that's been offered.

I'm Entertainment Lawyer Gordon Firemark, and this is Asked and Answered, where I answer your questions about the business, so you can take things to the next level.

Amin has been asked to negotiate a deal with a production company that wants an option on a friend's life story rights. the question is. “How Do We know that the price they are offering is a good one?”.

How can you know whether an offer you've received is a good one?

Well, mostly, I have to say, that comes down to three things. Research, Experience, and Intuition.

Research can tell you a lot about the situation. Look at similar projects in recent years, and gather data about what folks received.

Look at the people and companies involved, and what they've been involved in in the past.

Look at what other participants in THIS project are getting.

Ask around, but don't rely too heavily on the opinions you get from your immediate friends and family, unless they have the next component… Experience.

Probably the most important tool you'll have in evaluating an offer is Experience. Your own, your friends' and colleagues, and that of your representatives.

One of the big advantages of having representatives; an agent, manager and lawyer; helping you with your deals, is that they work in this business all the time. For every deal a single client has seen, we are seeing multiples… Because we have more than one client Working in this business. So, we have a built-up base of experience to draw on. when advising and representing our clients.

But your own experience is valuable too. You may have Factors that you consider that wouldn't be obvious to your lawyer or agent. Maybe you've worked with these folks before, and they're so much fun to work with, that you'd do it again regardless of the money. Or, maybe the converse is true. They were so difficult that no amount of money could make you do business with these folks again.

Your experience, combined with your research will naturally inform the third component of this… Intuition. Listen to your gut. What is it saying about the offer? If you were to take the offer, how would it make you FEEL? If the answer is anything but “GREAT”, think harder. Why is it less than stellar?

But knowing whether an offer is a good one is only the beginning of things. What comes after receiving the offer is really where the rubber meets the road. Negotiation.

There are lots of approaches to negotiation, but ultimately, it's about asking for what you want, and making sure you get what you NEED from the deal. Again, this is where working with your representation is really important. I've yet to see a deal that wasn't improved through negotiation, and the ones that get handled by professionals, get the most improvement.

So, unless the deal you've been offered is a real turd (steaming pile), you can make a counter offer, and eventually strike the deal that does make you feel great. Or, if you conclude that can't happen… You say NO.

I'd always prefer to feel bad about a deal that didn't happen, than about one that did, and for which I've worked hard, invested my energy, and ultimately been burned or embarrassed.

So.. To recap.

When you evaluate a deal, look to:

Research
Experience,
And
Intuition.

Consider what you really NEED out of the deal, and determine whether everything is covered.

And negotiate.

Oh, and get some help from a lawyer, agent or manager.

If you have a question you'd like to see featured on Asked & Answered, hop on over to http://firemark.com/questions.

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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - The post How do I Know Whether an Offer is a Good One – Entertainment Law Asked & Answered originally appeared on Entertainment Law Offices of Gordon P. Firemark. Entertainment Law Offices of Gordon P. Firemark - Los Angeles Entertainment Lawyers - Theatre, Film, TV & New Media

Jul 14 2016

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Rank #10: Using Film Clips in Movie Reviews – Entertainment Law Asked & Answered

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www.firemark.com

Brief Explanation of Fair Use

YouTube’s Strike Policy

Tim wrote in with a question about his movie reviews channel on YouTube.

I'm Entertainment Lawyer Gordon Firemark, and this is Asked and Answered, where I answer your questions, so you can take your business in entertainment and media to the next level!  My answer in just a sec…

So here's what Tim wrote in the comments on my YouTube channel…

“A friend and I want to start a YouTube channel that reviews movies. We want to give facts, actors, and other details about the featured movie, as well as put 2-3 short clips from that specific movie. How can we do this legally and without getting a copyright strike on our YouTube channel?”

Hi Tim,

First off, the best way to get questions to me is via http://firemark.com/questions, that way you get notified as soon as I post an answer via video. And you get subscribed to my free email newsletter, where I provide all kinds of other free, useful information.

OK, here goes…

Movie Reviews in electronic media have a long history of using clips, stills and other material from the the films they're reviewing. TV review shows, radio reviews, and what have you… All of them have done this. In most cases, the studios have provided the clips as part of the press-kit for the films.  After all, they want to get these films out there for the public to know about, so they'll come and see them. That's how the studios make money.

So.. Start by contacting the major studios and film distributors and asking to be added to the circulation list for their Electronic Press Kits (EPK for short). Sometimes you can find the EPKs on the movie websites, so have a look around

Now if you get the clips this way, then you'd be operating under a license from the copyright owner… And as long as you comply with whatever terms they require, you should be fine.

But, small snippets used in the context of a bona-fide movie review will most likely constitute FAIR USE, and therefore NOT copyright infringement. The trouble is, it's risky to rely on Fair Use in these situations, since that determination is typically made on a case-by-case basis by a Judge or Jury… Which means you're already embroiled in a lawsuit by the time you get to present the defense.

You may also want to have a look at my “Brief Explanation of Fair Use” video: http://firemark.com/fairuseinbrief for a bit more detail.

The good news is that a recent court ruling requires copyright owners to make a good-faith determination about fair use BEFORE issuing a DMCA takedown. AND, if they do issue a takedown, you'd have a valid basis to issue a counternotice, and get the video reinstated.

YouTube’s strike policy is somewhat flexible, and they've recently indicated that they'll even help support users who have fair use claims. (see http://www.zdnet.com/article/google-announces-legal-support-for-youtube-fair-use-copyright-battles/)

So, my advice is: See if you can get official press/PR copies of the footage you want to use, and be careful to comply with the film owners' requirements, but even if you're not able, consider whether your use falls within the fair use defense/exception to copyright infringement, and document your decision making process.

You may want to consider getting some Errors and Omissions insurance to cover you and legal fees if you're sued.

And, of course, contact me if you need further analysis and advice. I can prepare a formal opinion letter about your videos.

So if you have any question about entertainment law or business that you’d like to see answered here, send it over by or visiting http://firemark.com/questions

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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - The post Using Film Clips in Movie Reviews – Entertainment Law Asked & Answered originally appeared on Entertainment Law Offices of Gordon P. Firemark. Entertainment Law Offices of Gordon P. Firemark - Los Angeles Entertainment Lawyers - Theatre, Film, TV & New Media

May 20 2016

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