Contracts

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.”
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Now listen to my story ‘bout an actress named Donna.

In case you don’t recall The Beverly Hillbillies (read: are under the age of 40), the series (which ran on CBS from 1962 to 1971, and which has enjoyed a long life in syndication) followed the Clampett family, a group of poor yokels who strike it rich after accidentally discovering oil (“Texas tea”) on their generically Southern swamp, move to Beverly Hills, and inexplicably continue to drive around in a jalopy and dress like extras from The Grapes of Wrath. One of the show’s highlights was buxom, come-hither Clampett daughter Elly May, played by an actress named Donna Douglas, whose principal non-Elly May-related claim to fame is some obscure on-set philosophizing with Elvis during the shooting of Frankie and Johnny. (And one of its lowlights was a tragic 1993 attempt at a feature film — with Playboy model and Baywatch babe Erika Eleniak reprising the role of Elly May — which garnered such rave reviews as “Unbearable,” “Was this really necessary?” and “Four writers worked on the script, and they all should hang their heads in shame.”)

Last week, Douglas sued Mattel in federal court in Baton Rouge, Louisiana over the toymaker’s recent release of an “Elly May” Barbie, asserting claims for false endorsement under the Lanham Act, violation of the Louisiana right of publicity statute, common law misappropriation, and unjust enrichment. In her complaint, Douglas asserts that the packaging and publicity for the Elly May Barbie use Douglas’s photograph and name, and that the doll itself copies Douglas’s “distinctive attributes in the portrayal of the Elly May character.” Douglas also claims that she never endorsed the doll or gave Mattel permission to use her name or likeness to promote sales of the Elly May Barbie. As Elly May herself might say: “Well, come on, baby. Let’s wrassle.”

Aside from raising questions about Mattel’s marketing strategy here — I’m guessing this is a “collector’s item,” because have any adolescent girls ever even heard of The Beverly Hillbillies? — Douglas’s lawsuit highlights a potential collision between the right of publicity and the rights granted to copyright owners.
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For those readers who have ever wondered how we at Law Law Land come up with blog topics, know that it is a very sophisticated process. Case in point:

Associate 1 agrees to wear a pig beanie recently worn by actor Jared Leto if Associate 2 takes him out to breakfast.

Associates 1 and 2 cannot find the actual pig beanie worn by said actor.

Associate 2 finds the following alternatives: closecloser, and way off but it flies.

Naturally, Associate 2 believes that Associate 1 should wear the flying pig hat (how could he not). Associate 1 protests. Associate 2 emails other associates for support. One of those associates notices that one of the “Customers Also Viewed” suggestions on Amazon is afood truck-themed pornographic film named “The Flying Pink Pig.” Another associate points out that, according to TMZ, the owners of the Flying Pig food truck had recently sent a cease and desist letter to the film’s producers, claiming that they were led to believe that the food truck would be used as a backdrop for a normal film (rather than a prop for a Ron Jeremy sex romp). Alas, a blog post is born.

This situation has implications that touch far beyond the comparatively limited food truck community (though these days, there may be more food trucks than people in Los Angeles). Any property owner who decides to rent out a property for a film shoot should take note — especially if it happens to be in the San Pornando Valley. What happens if you rent your home/business/food truck for a film, and the film turns out to be something a little more unseemly than you expected?
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Q: I am about to sign an option agreement with some of Hollywood’s best independent producers. I wrote the screenplay with a WGA writer. I own the source material. The screenplay is based on my life story. I think I should be entitled to backend profits. The producers keep the international distribution rights and sell off the domestic. I don’t think I have a chance of the domestic profits but it is the international profits that this question is addressing.

A: The good news is you should be able to get some backend. The bad news is the backend you’ll be able to get will most likely amount to bupkis. But bupkis is still better than completely nothing.
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Q: I’ll keep this brief to avoid boring you to death. From my understanding, a pay or play agreement means an actor will attach themselves to the project, but if the film never makes it to production, at least the actor will still get paid. So basically, it’s an arrangement that will permit an entertainment professional to attach their client to a project with confidence by assuring the actor that at least they will get paid.

A: Avoiding boring you to death has never been this blog’s goal. Yet, it effortlessly fails to achieve it on a consistent basis, week in and week out. Setting goals in life is a mammoth mistake and a recipe for failure. The only way to achieve all your goals is to have none. This blog had no goal, direction, or purpose of any kind. But look at us now — we’re bigger than U.S. Steel and Huffington Post. This blog is so tremendously influential now that every word I type sends trepidations down my spine, up my brain, and sideways to other places. None of it was planned, deserved, or earned. How can something so lackluster, mediocre, and banal be so successful? You can ask the same rhetorical question about your boss or Jay Leno. C’est la vie.
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Monday brought two interesting developments in the never-ending saga of people trying to pry shares of Facebook from Mark Zuckerberg. First, the lawsuit that spawned the uber-successful film The Social Network — and a damn fine blog post about the same— seemingly came to an end. (I assume Zuck clicked “Like” next to the story.) And second, the lawsuit that will inevitably spawn The Social Network IIsuddenly got a lot more interesting. (And maybe now Facebook will take those long-standing calls for a “Dislike” button more seriously.)

“At Some Point, Litigation Must Come to an End. That Point Has Now Been Reached.”

First, something the wunderkinds at Facebook can party about. The Ninth Circuit Court of Appeals rejected the attempts of Tyler and Cameron Winklevoss (not-so-affectionately referred to as the “Winklevii” in the movie) to set aside a settlement agreement which purported to resolve their claims against Facebook. Apparently, the Winklevii will have to live with $165 million (based on current estimates). And although Judge Alex Kozinski’s opinion rejecting their appeal isn’t nearly as sexy and exciting as Aaron Sorkin’s depictions of the heated depositions during the case — all in favor of just having Sorkin write real life for the rest of us, say aye — there are some legal concepts worthy of note, as well as a few choice samples of judicial snark. [Ed. Note: Aye.]
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We all agree that iPads are awesome, not least because they are probably the greatest procrastination tool ever invented. Sure, you could play Angry Birds on your iPhone, or your Mac, or your Conan O’Brien talk show stage, but there’s something about spending hours mindlessly tapping and swiping away on your iPad that really captures that special feeling you first discovered when your mom finally broke down and bought you the Atari system you’d been begging for for months. And if you don’t yet own an iPad, it’s safe to assume that you wish you did, as the recent launch of the iPad 2 has made people of all levels of technological savvy more excited than ever to discover new apps to help them complete tremendously difficult, hugely important life tasks, such as holding their fingers in one place for an extended period of time, tossing pretend cows at pretend objects, and playing with zippers. Naturally, every company wants to make their services iPad-relevant.

Clearly anxious to join life after iPad, on March 15th, Time Warner Cable became the first cable service to launch an iPad app that allows viewers to watch live television on their iPads. Sounds pretty cool, right? That is, until you read the fine print: the app only works for people who subscribe to TWC’s cable television and Internet service, and it only works in the subscriber’s home, when the iPad is connected to TWC’s cable modem via a WiFi router,and only for the channels to which the specific user actually subscribes. (The app may or may not also require the user to softly whisper a benediction to TWC CEO Glenn Britt, while premium channels possibly require the user to submit a photograph of themselves burning a Verizon FiOS marketing circular.) So now I have a picture in my head of my kids sitting on our couch — in front of our 60” flat screen — trying to tune in to iCarly on a 9.7” iPad, while the same episode plays in HD in the background. Very useful, indeed. It’s like picture-in-picture, the innovation that everyone thought would revolutionize television viewing, only even more obviously useless from the outset.

Setting aside the obvious limited utility of TWC’s app (which inexplicably has already been downloaded 360,000 times), Viacom is not happy. Viacom contends that the app, which allows viewers to watch several of Viacom’s channels and programming, constitutes unlicensed distribution of its copyrighted material and is a breach of its agreement with TWC. Viacom has demanded that TWC remove its content from iPad viewing, including Viacom channels Comedy Central, MTV, Nickelodeon and CMT.

Following the theory that your best defense is always a good offense (especially when you’rethisclose to getting sued anyhow), TWC filed a complaint for declaratory relief (a.k.a., the preemptive lawsuit soon-to-be-sued parties often file so that they can call themselves the plaintiff), asking a judge in the Southern District of New York to rule that its iPad viewing app is authorized under its agreements with Viacom and does not infringe Viacom’s copyrights. Viacom responded with its own lawsuit (because, again, everyone knows the plaintiffs are the cool kids in any given lawsuit), asserting a slew of copyright, trademark and unfair competition claims against TWC, and seeking hefty damages and injunctive relief to prevent TWC from continued iPad distribution of Viacom’s content.
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Q: Assuming a producer, verbally only, at the time of the shoot, promised a co-producer a percentage of the film’s profits, does the co-producer have any legal rights to demand anything, since there is nothing in writing to prove it?

A: “An oral contract isn’t worth the paper it’s written on.” Goldwyn was absolutely right but also very wrong. There are few contracts that must be in writing to be enforceable. We have a beautiful blog on this, but there’s always more to say. So let’s say more.
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Q: There’s a script I’ve been interested in for a while. I’ve been trying to raise some financing so that I can produce it. I think I’m close to successfully putting some financing together but I just found out that there’s another producer that’s suddenly interested in it. I’m afraid that I’m going to lose it. I want to option it but don’t have the money yet. Anything I can do?

A: If you don’t have the money right now to option it, unfortunately your options are limited. Pun intended (as always).
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Q: The rights to my novel were optioned to a producer in June 2008. Before anything was signed (though a contract with all terms was drafted and dated), another party made a much better offer that I felt I had to refuse because the “oral agreement” we had was binding (the producer sent me an email the following day saying we “closed the deal” on my novel). The production company proceeded to actively develop my project, sending books to potential screenwriters, etc., all summer long. Finally, in September 2008, contracts were signed by all parties. After 18 months from September (in March 2010), the option was renewed for one year.

My question is this: shouldn’t the rights have expired and reverted to me in December 2010 rather than in March 2011? When the oral agreement bound me to them and allowed them to begin active development, shouldn’t the clock on their 18-month initial option have started ticking? Why would they be granted 3 free months of development at my expense? I don’t want this company to buy my movie — and they can’t if the rights have expired. Have they?

A: You sound about as excited to sell your script as Luke Wilson was to be in those AT&T commercials. I guess money can’t buy happiness. Let’s start from the beginning to see how you could have avoided this in the first place.
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