Jesse Saivar

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Q: I just had someone send me an option agreement. I’m not going to lie… a lot of it is legal mumbo jumbo that I don’t fully understand but seems harmless. There’s one thing though that seems really weird. It says that the Producer is my “attorney-in-fact” with the power to sign documents on my behalf? This strikes me as really sketchy. Is this Producer trying to pull something over on me?

A: I’m not going to tell you that the Producer is not trying to pull one over on you. All the Producer wants is the power to purchase a smallish yacht, a couple of European castles, a Picasso or two and some shrunken heads on your credit. So what if the Producer wants to go all MC Hammer in your name? At least you’ll have a chance to be the next FreeCreditReport.com singer. Right?

Half-hearted attempts at humor aside, that provision alone isn’t going to lead to a life of used sub-compacts and catchy jingles that get stuck in my head for weeks at a time. It’s actually a very common provision (that admittedly tends to scare people who actually take the time to read their agreements). If the provisions in your agreement have titles, the one you’ve quoted is likely under the title “Further Documents.” Continue reading the full story . . . »

Jesse Saivar

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Q: I’m a producer and am doing a small low budget film. I’m wrapping up some of my actor agreements right now, and one of my actors, who’s had a few bit parts in some straight-to-DVD movies, has asked for a “stop date.” I’m pretty sure I know what that means and think I’m okay giving him one but are there any aspects to a stop date I should be wary of?

A: I’ve been on a few “stop dates” in my day. I show up at my date’s door and she says “stop,” turns around and shuts the door. Luckily those days are past because I’m a hotshot entertainment attorney with a popped collar (oh, and I’m married with two kids).

Your stop date, of course, has nothing to do with the preceding terrible joke. It’s a protection that actors may ask for but may not always get. Unfortunately, “stop date” is another term that’s bandied about in the industry as though it means something concrete, when in fact it means whatever it’s defined to mean in an agreement. Therefore, your first lesson, if you decide to give your actor a stop date, is to clearly define exactly what is being stopped on that date. Continue reading the full story . . . »

Rachel Valadez

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Last week, we posted an interview our own Aaron Moss gave to entertainment lawyer/punk bassist/radio host extraordinaire Joe Escalante’s Barely Legal Radio program, about Newegg.com’s recent battle with Best Buy over the Internet retailer’s latest television advertisements. In our post, we made reference to an interview our Rachel Valadez previously gave about the Mike Tyson/Hangover 2face tattoo lawsuit filed early last month. But then we realized: we never actually provided you with the interview…how rude of us!

Plenty has happened in the case since Rachel’s post and interview first went live. In late May, U.S. District Court Judge Catherine D. Perry refused tattoo artist S. Victor Whitmill’s request to block the release of The Hangover 2 and its associated advertising — but, in a decision that surprised many legal observers, Judge Perry based her ruling on the harm that an injunction would have caused, and held that Whitmill had shown a “strong likelihood of success” on the merits of the case. Although it had averted the disaster scenario of a release-blocking injunction, Warners was skittish enough about the case to announce, roughly two weeks later, that it would be digitally scrubbing Ed Helms’ Tyson-inspired tattoo from the DVD release of the film. Finally, last week, the parties announced a settlement that would allow the tattoo to remain in place in all future versions and releases of the picture.

Even though the case is now settled, though, Rachel’s interview provides some interesting insights about the quirks of copyright law, the realities of high-stakes litigation, and the craziness that results when parties start arguing over ownership of the content of a person’s skin. We invite you to check it out:

Rachel Valadez

Matt Galsor

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Q: I have just had a novel published by a small publishing house in Montreal, and there is already talk of adapting this into a film. The original publishing agreement does not include subsidiary rights, and the publisher — who is in touch with the movie interests — wants to write a separate deal between me and him over the movie rights. I have no fundamental objection to this, but don’t know what the split between author & publisher should be. Can you tell me what is usual/standard in such cases?

A: The usual/standard in such cases is to try hard to develop a fundamental objection to this. It’s customary for many publishers in the US and Canada not to acquire film rights to the books they publish. The custom in Europe and elsewhere is just the opposite: publishers acquire not only publication rights but also film, TV, and other “subsidiary rights.”

It seems that the only rights the publisher acquired to your novel are the publication rights. And you retain film and other “subsidiary rights.” If that’s the case, the split between you and the publisher should be 100/0, in your favor. Film rights to your novel are your property, and there is no reason why you should cut in the publisher. Why stop at film rights? Maybe you should also split with the publisher the proceeds from the sale of your boat? Continue reading the full story . . . »

Jesse Saivar

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Q: I’m a documentarian. If I were to record a live show as part of a documentary — audio and visual — am I free to use it even if there’s live music being played in the background?

A: Look, I’m no math magician, but one of the things I always liked about math is that it’s a world of definitive answers. In my simplistic view, the world to a mathematician is one big black and white cookie. It may be a complicated black and white cookie, but it’s black and white nonetheless.

I, for some reason, chose to be a lawyer. In the world of law, nothing is black and white. It’s all grey. And if we’ve learned anything from grey goo, May Grey, people who spell grey “gray,” and Grey’s Anatomy, it’s that grey sucks.

Unfortunately for us lawyers, most people assume that the law is black and white… that there are simple yes and no answers to legal questions. But there rarely are. Lawyers are paid big bucks to always find a counterpoint to every point raised by their opponent — and counterpoints usually exist. To make matters worse, sometimes legality and reality diverge. Even if you find yourself on the right side of one of those rare black and white legal situations, it may not matter unless you’re willing to pay a lawyer to enforce your rights, or defend you, in court. Proving you’re right, even when it’s painfully obvious that the law is on your side, can be an expensive endeavor, especially if the party on the other side has money and a bad attitude. Continue reading the full story . . . »

Rachel Valadez

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This month, the legal blogosphere has been all atwitter about aMissouri tattoo artist’s lawsuit against the studio behind The Hangover 2, and the artist’s attempt to stop not only the release of the film, but even block the studio’s ads and promotional materials. In case you aren’t up-to-date on your face art-related news (there’s just so much out there!), let’s catch you up: St. Louis tattoo artist S. Victor Whitmill has sued Warner Bros. claiming that a tattoo featured on the face of one of The Hangover’s main characters, Stu Price, played by Ed Helms, infringed Whitmill’s copyright in a very similar tattoo he placed on boxing-champ Mike Tyson’s face back in 2003. A cursory comparison of the two tattoos shows how strikingly similar they are, and when coupled with Whitmill’s allegations, perhaps how worried WB should be. (Hat tip to TMZ for the side-by-side comparison.)

Whitmill alleges that in 2003 he created “one of the most distinctive tattoos in the nation” — one that looks nothing like a facial version of the tramp stamp gracing the lower back of half of the current denizens of Hollywood nightclubs — by placing an original “tribal tattoo” (the registered name of the copyrighted work) on the upper left side of Tyson’s face. At the time he applied the tattoo, Whitmill apparently had Tyson sign a release (attached as an exhibit toWhitmill’s complaint). Although the release primarily contains typical tattoo/piercing CYA language (the signing client represents they’re over 18, not under the influence of drugs or alcohol, etc.) it also contains a provision stating “I understand that all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio of Dermagraphics” (Whitmill’s d/b/a, which pretty ingeniously linguistically science-ifies tattoo artistry).

While Whitmill’s release language seemingly purports to grant him ownership of any image of Tyson in which the tattoo is displayed (the actual photographers might have something to say about that, I think), Whitmill kept silent as Tyson and his tattoo made their big cameo in 2009’s summer juggernaut, The Hangover. It wasn’t until a look-a-like tattoo appeared on Ed Helms’ (extremely pained-looking) face in ads for The Hangover 2 that Whitmill decided to bring an infringement claim. And already, bemused legal eagles are wondering if it’s “the best copyright complaint ever.” Continue reading the full story . . . »