The Blame Game: Who Takes the Fall When a Movie Tanks?

Spoiler alert: not all movies succeed.

In any given year, the bombs will outnumber the blockbusters, much to the dismay of the companies fronting the cash (and that doesn’t even count all the movies that “lose money” on paper). American treasury bonds may no longer be AAA gold-plated, but you better believe they’re a safer bet than financing a movie — just ask every pro athlete who went bankrupt investing their multi-million dollar advance into a pet motion picture project. But not everybody who watches their investment wither and die at the hands of unforgiving reviewers and uninterested audiences is willing to just walk away. For these investors, there is recoupment by litigation (and entertainment lawyers everywhere rejoiced!).

Consider the financiers of the movie Free Style, who filed a lawsuit last week in hopes of salvaging their investment in the box office bomb. Unsurprisingly, the suit names the producers as defendants, alleging that they made misrepresentations about the marketing budget and the scope of the movie’s release. More interestingly, though, the financiers are going directly after star Corbin Bleu (of High School Musical fame, for those of you without tweenage daughters), alleging that he failed to honor an agreement to provide interviews to promote the film. As a result, say the money men, after they loaned $8.57 million, the movie only earned $1.3 million from all sources including foreign distribution and DVD sales. (If you’re thinking that’s not so bad, chew on this: the movie earned only $463 on opening weekend in the United States. Yes, 463 dollars, no zeros added. The investors might have been better off selling their collectible Barbies on eBay that weekend.)

Since you’ve likely never heard of the movie (case in point?), here’s a synopsis: “High School Musical’s Corbin Bleu trades in his dancing shoes for a helmet in this family film. InFree Style, young Cale (Bleu) gives his all in his effort to be on the Grand National Motocross racing team, while his mother (Penelope Ann Miller), sister (The Game Plan’s Madison Pettis), and girlfriend (Sandra Echeverria) cheer him on.”

I’ll give you a moment while you toggle over to Netflix to add the DVD to your queue. You’re welcome.

So, having taken the unusual step of suing the star of their film, what hurdles do the investors face in proving their case against Bleu? Continue reading the full story . . . »


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How the First Amendment Protects Your Right to Be a Jerk

Sadly, “shocking” racist or bigoted celebrity tirades no longer make for shocking news. Even if the Constitution can’t protect them in the court of public opinion, celebrities like Mel GibsonMichael Richards, andTracy Morgan are lucky enough to live in America, where the First Amendment protects them from legal consequences for the absurd things that come out of their mouths. John Galliano, on the other hand? Not so lucky. He could face jail time for his recent anti-Semitic and racist rants.

The former creative director of French fashion house Christian Dior was arrested in February for allegedly shouting anti-Jewish and racist insults at a couple at a bar in Paris. He also allegedly exchanged slaps with the couple. Galliano was immediately fired from his position at Christian Dior and ostracized from the fashion community. Shortly after the incident, Galliano ended up in rehab (which is now apparently a cure for everything from alcoholism to racism to not being able to stop once you pop). In court, Galliano claimed that he was an alcoholic and drug addict, and that these addictions caused him to make the racist rants (of which he supposedly has no memory). Galliano is being charged with making “public insults based on origin, religious affiliation, race or ethnicity” — a type of prohibition which was widely adopted throughout Europe in the aftermath of the Holocaust — and could face up tosix months in prison.

Although Galliano is, in practice, unlikely to see a jail cell even if he’s convicted, the fact that it’s a possibility at all is more-than-mildly perplexing to us Americans who are used to having free reign to make comments like that — usually either on a stand-up stage, while being arrested for something else, or on Fox News — without the threat of prosecution. So when can you go to jail for speech in America? Continue reading the full story . . . »


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Q&A: Can I Produce a Movie That Draws Facts About a True Crime Story from a Published Book?

Q: I have the opportunity to option the rights to a screenplay based on a published book written about actual events (real crime genre) that deals with forgery and murder. The book author owns the underlying rights, the screenwriter has worked on spec without legal documentation. Having read both the book and the screenplay, it seems that the screenwriter has relied heavily on materials other than the original underlying material (the book). There have been a number of other books and many articles written on this story. From a legal perspective how uphill will this battle be? As an independent producer attempting to package and sell the project, should I be concerned with clearing all the rights now — or would you advise finding a party interested enough to pursue the story who has the muscle to get it done? To give you an idea, a good example of this kind of movie would be Shattered Glass, which was the true story about a journalist who fabricated stories in the New Republic Magazine.

A: This is a story about forgery, murder, and … possibly copyright infringement. You can get away with forgery and, often, murder. But I’d shy away from copyright infringement — it’s uncool and generally looked at negatively in Hollywood.

Actual events, or any facts for that matter, are not copyrightable. In 1924, Leopold, a law school student, and Loeb, who was about to start law school, murdered a teenager just to see if they could commit a perfect murder. Aside from the fact that this is the kind of people who go to law school, the fact is the facts of the Leopold and Loeb case are not protected by copyright. And so Leopold and Loeb inspired a play, a number of movies, a book, and even a graphic novel. Leopold and Loeb is also a law firm in Century City. Continue reading the full story . . . »


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A Trademark Claim Only Mr. Whipple Could Love

For the past six months or so, my life has been all about poop. You see, my daughter and her friends have entered into a charming phase in which no opportunity to make a poo, pee or fart joke goes unmissed. (This morning’s latest gem, about a Kenmore commercial touting large capacity refrigerators: “Mom, did you hear? They said: ‘We put more in so you get more out’ — hah… they put more food in so you can ‘get more out,’ in poop, get it?” Sigh.)

At first we tried to put a lid on this toilet humor; but now we just, um, go with the flow. (Gah, it’s contagious!) My husband has frankly adopted the “if you can’t beat ‘em, join ‘em” approach, serenading my daughter and me with an obscure Bobby Bare country song that used to play on a.m. radio when he was growing up in Montana. I think even you city folk will get a chuckle out of the lyrics to “Bathroom Tissue Paper Letter.” Case in point:

When I got home this evening about a half past ten
And found she wasn’t waiting so I let myself on in
I headed for the icebox to get myself a beer
And found that little note that said my baby wasn’t there.

There was a bathroom tissue paper letter hanging on the wall
She said I just can’t take no more and you can have it all
I’m taking what good sense I’ve got and leaving you behind
And you can take this letter and wipe me from your mind.

C’mon, funny, right? I know — some of you may be feeling a bit sorry for my family and me, mired in, well, excremental humor as we seem to find ourselves lately. But we don’t need your pity. As it turns out, recent trademark news has given me cause to hold my head up high; my daughter, poopy puns and all, can now follow in the footsteps of none other than the esteemed judges of the Seventh Circuit Court of Appeals.

In a suit brought in 2009, toilet paper titan Georgia-Pacific claimed that the trademarks it registered in the quilted diamond pattern used on rolls of “Quilted Northern” had been trashed by competitor Kimberly-Clark, who in 2008 redesigned its premier brand of TP — Cottonelle — using a similar quilted design. Last week, the Seventh Circuit flushed Georgia-Pacific’s trademark claims down the, well, you know. The Court of Appeals upheld the lower court’s finding on summary judgment that Georgia-Pacific’s quilted diamond design was functional and therefore not entitled to trademark protection. And it did so in a hilarious opinion by Judge Terence Evans riddled with, you guessed it, potty puns. Continue reading the full story . . . »


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Trying to Stay Off a Reality TV Show? Maybe Try Dancing Whenever the Cameras Are Around!

Curt Sachs once said that “dance is the mother of the arts.” Sounds very eloquent, doesn’t it? You can’t help but think of a beautiful ballerina gracefully cascading along the stage, performing in front of an adorning audience. Now, take this quote and those serene images, place them on train tracks, wait for speeding train to hit, and…boom! You now have Dance Moms, Lifetime’s latest so-called reality show and voyeuristic indulgence featuring infamous dance studio owner Abby Lee Miller, several of her young dancers, and their overbearing moms. The show appears to be loosely scripted, at best, to contrive needless drama and controversy. Does anyone seriously believe that these moms were genuinely outraged by the “wildly inappropriate” costumes their daughters were wearing? Pah-lease!

 

Not surprising that the best they could do was Wednesday nights at 10 p.m. on Lifetime. (Although we can all be grateful to the show for helping to bring the phrase “prosti-tots” into the vernacular. So, you know, thanks for that.)

Before I write any further, I should probably confess that I am both a former dance competition kid and, by definition, a dance mom. Like the Abby Lee dancers, my 11-year old daughter dances nearly 20 hours a week, performs in nine group routines and two solos, and attends many of the dance competitions and conventions featured by Lifetime. So, are the rest of us dance moms angry that the show entirely ignores the positives of youth dance in favor of gross sensationalization? That it fails to point out that, instead of coming home from school and sitting on the couch playing video games, these dance kids are getting incredible exercise, learning an art form, gaining performance skills, building self-confidence and creating life-long friendships? That it ignores how the drive and ambition these kids build as young dancers will launch them into a variety of successful, non-dance careers? Absolutely. Am I writing this blog to express my disdain for Lifetime’s unfair and irresponsible depiction of the dance world? Maybe. But behind all the pirouettes, the show raises some interesting and novel legal issues. Really. Continue reading the full story . . . »


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Un-Cover-ing

This is a law blog so I know you didn’t get the wrong impression from the title. Obviously the topic du jour is cover songs.

The minute I’m selected to own a Nielsen ratings box I swear by Friday Night Lights that I will forever after watch all television on an actual TV at the actual time it is scheduled to air. But until that day, I’m sticking with Netflix and Hulu like the rest of America. Unfortunately, while I usually don’t mind watching commercials in exchange for free TV, on Hulu, that means dealing with advertisers who are apparently making up for the increased cost of advertising with pure, unrelenting repetition. Thus, the launching point for today’s discussion: that *%@$#$!! commercial with the lousy Beatles cover that I was forced to watch eleventy-three times on Hulu. (I’m not linking to it, for your benefit. You now owe me.)

The cover song is an interesting creature. As you’ve heard from us before, a recorded song has two copyrightable components — the recorded performance, and the composition itself (the music and lyrics). When someone wants to cover a song that was written by someone else, current copyright law calls for a small payment to be made to whoever owns the composition copyright each time a new copy of the song recording is made (e.g., for every sale). The amount owed to the copyright owner is a bit of a pittance in terms of today’s dollars, as the amount hasn’t kept pace with inflation, but that pittance can still add up to quite a sum if a sound recording goes platinum.

There are only a couple of rules you have to obey in order to get this compulsory license deal. The song has to have been already released to the public (under the authorization of the copyright holder). This means that you can’t scoop someone else’s song and record it and release it before they do (unless they say you can). Also, you have to give the copyright owner notice that you’re going to cover the song. Usually, people ask for permission, as it’s considered somewhat bad form not to, but you technically don’t have to. Finally, you can’t alter the song too much.

You’ll notice that the rule “don’t do a bad job” isn’t included among the list I just provided, much to my lament. There are some pretty terrible covers out there. In some cases, the original version is so terrible that you can’t believe that the infamous version you know and loathe is actually the second cover to be released. Some alleged covers may have been unintentional. Some covers are unexpected. And, sometimes, musicians pull the equivalent of holding themselves up by doing terrible jobs essentially covering their own songs. Of course, there are plenty of good straight-up covers, too. Some are so well-known that we may forget that the original ever existed. Some covers bring an entirely new approach to a song, and transform it in a way that moves, intrigues, or delights us. Or they are just so good that you don’t quite care that they play the song fairly close to the original. (Here are some originals for comparison.)

(Is your link-clicking finger still alive? If it is fatigued, try some chocolate milk.)

But, again, this is a law blog and I should get to the point: how are we going to find chaps our size? Well, that, and one other thing. The question, my friends, is this: what happens if someone rips off a cover song? What if someone just copies some earlier performer’s interpretation of a third party’s song? Can they get away with that?

The short answer is maybe not. The long answer is going to take us another 13 paragraphs. Continue reading the full story . . . »


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