Copyright

Q: How binding is a letter of intent? Nearly eight years ago, I signed a one-paragraph agreement in which I allowed a producer to attach himself to my original screenplay and shop it around. He found no takers and hasn’t submitted the script anywhere for at least five years. Now I’m thinking of reviving the project, but would prefer to do so without the producer’s involvement. Do I have any further legal or moral obligation to him? I would like to add that no money exchanged hands; the producer never actually optioned or bought my screenplay.

A: A true letter of intent is as binging as your To Do list, or at least it should be. You intend to do the things on your To Do list, but if you don’t do them you won’t get sued. The only way a letter of intent is legally binding is if it’s not truly a letter of intent. It’s not what you call something, it’s what it is. You can have a piece of paper called a letter of intent that actually contains a binding agreement or you can have something called a binding agreement that actually contains no agreement at all but just a list of non-binding things the parties intend. It seems like you have something called a letter of intent which actually contains your agreement to attach a producer to your screenplay.
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Remember the good old days when Jennifer Lopez made headlines for harmless things like bold fashion choices and a semi-legendary backside? These days, though, it seems like J-Lo makes news less for her talents as an actress/singer/Paula Abdul replacement, and more for her divorces. In the midst of swirling gossip about the demise of her marriage to Marc Anthony, J-Lo has been battling in court, trying to stop her first husband, waiter-turned-chef-turned-professional celebrity-ex/litigant Ojani Noa, from selling the rights to a series of home videos made during their short-lived marriage. (This is, in fact, the second time Noa has tried to sell rights to the story of his ill-fated marriage to the Puerto Rican starlet; apparently, a permanent injunction and a $500,000 damages award didn’t teach him a lesson).

Some quarters of the Internet were no doubt crushed to hear that, unlike last time, Noa is now reportedly hawking home videos of a rather G-rated variety. And while the newest headlines about J. Lo’s ongoing battle with Noa vaguely trumpeted a J-Lo victory, behind the A-list names in the headline (or rather, the one A-list name and the ex-husband of the A-list name) was a legal issue only a lawyer could love — whether the dispute between Lopez and Noa would have to proceed via private binding arbitration or in court (Lopez succeeded in pushing the case to arbitration, shielding any salacious tidbits that might come out of this nasty battle from public view). But of course, the idea of the public release of celebrity home videos (whether G or XXX rated) always piques the interest of our voyeur culture.

Of course, J-Lo is in a better position than many celebrities trying to keep their private lives private, in that her long and sordid legal history with Noa has created a paper trail of contractual agreements between the two on which she can now rely (more on that later). But putting aside the quirkier aspects of the Lopez/Noa dispute, the general question remains: can a famous celebrity like J-Lo stop a gold-digging ex from profiting off home videos made during the relationship?
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Q: I just got back from Comic-Con a few weeks ago and met a writer there who had written a comic book that I think would be perfect for a film. I’m interested in optioning the book but I’m not really sure how to go about it since I’ve never dealt with comics before. Anything special I should be worried about?

A: Faithful Readers! Your Law Law Land Q&A team wishes we knew that you were at Comic-Con! We were there as well, championing the cause of legal geeks everywhere. You may have seen us: the unlikely duo of Captain Caveman and Slave Leia roaming the floors. But, alas, we recognize that with negligible power, comes negligible responsibility…so we are back behind our desks, glasses on, no one the wiser and are here to answer your questions.

Acquiring rights in comic books is much like acquiring rights to other properties. The first and most basic thing you need to know is who holds the rights you want to acquire. In the comic book world, there are a few different business models that are based on the size of the publisher involved; who owns the rights you need may depend on what type of publisher issued the comic book you like. If you’re dealing with one of the big two, namely Marvel or DC, chances are the publisher owns the rights in the comic book. There’s a reason Marvel created its own motion picture production company: it was tired of hiring and paying third parties to make movies based on its own properties.
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Last week, KROQ’s Kevin & Bean interviewed Castle actress Stana Katic, who is starring in a new movie called For Lovers Only. The film is a “sexy love story set in Paris” and was “shot in the spirit of the French New Wave” (which sounds to me like a blend of smooth jazz, a Monet painting, and a nude beach).
The fascinating thing about the film is that it was produced by just five people. The small crew drove around France in one car using a handheld camera, and would haphazardly discover new filming locations (ironically, quite similar to the formula for a Jackass movie, though those are more “shot in the spirit of the American love of men being struck in the groin”). So although the script may have been rehearsed the night before, the location was often “TBD.”

Evidently unaware of the contingent of fascinated entertainment lawyers in the audience, Katic never discussed whether the film’s five-person crew obtained clearances or releases for anything or anyone they may have incidentally filmed. But from her description of the production, it seems possible — maybe even likely — that they didn’t. The film is currently available only through iTunes or at European film festival screenings. But although that whimsical approach to filmmaking may make for great promotional interviews on the radio, it could present a problem when filmmakers start looking for major worldwide distribution.
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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.
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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!

httpv://www.youtube.com/watch?v=04qKJ1QcR8Y&feature=player_embedded

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 distain 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.
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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 advertisingwith 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.
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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.”
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This Christmas, my mother-in-law gave my dog-obsessed daughter a gadget that (ostensibly) allowed her to view life through the eyes of our dog, Olive. It was a digital camera that attached to Olive’s collar, and it randomly snapped a picture every minute or so as Olive roamed around our yard and went about her daily, um, business (no, thankfully, it didn’t photograph what was going on at that end of the dog…). Well, we got a lot of pictures of grass and her food bowl, and a couple of catawampus views of our agapanthus and geraniums, which were cool in a canine fun-house sort of way. But I definitely wouldn’t have put any of them in a frame. I mean, I love my dog, but Ansel Adams she ain’t.

Well maybe I should reconsider. You see, a fantastic self-portrait taken by a monkey has been sweeping the internet, and causing quite a ruckus in certain copyright circles. (How is this macaque already better at self-portraits than 95% of people posting their pictures on Facebook?) Apparently, when award-winning nature photographer David Slater momentarily walked away from his tripod while filming black macaques in Indonesia, one of the monkeys took over, snapping hundreds of pictures. It isn’t quite Shakespeare, but the now-famous grinning self-portrait of the chimp is pretty remarkable.

Remarkable enough, it seems, that Slater is trying to steal credit for it. And while this has set off an interesting debate online as to whether, and under what law, Slater might have copyright rights in the macaque’s work, I’m more curious as to what rights the macaque himself ought to have.
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Q: A production company optioned my script. They wanted a few changes, and they paid me to do a rewrite. I liked some of their changes, but many I didn’t. So I only made the changes that I liked. I think the script is much stronger now, but they let the option expire. I thought that I can now sell the script to someone else, but a friend told me that, because I had a separate writing agreement, the production company owns my rewrite. How can that be?

A: Unfortunately for you, your friend could be right. This is easier to discuss around a concrete example. Let’s say your original script was a Raymond Chandler style film noir about a pair of unshaven LA cops named Bill and Bob who have a drinking problem, drive a hugentic SUV, and date two women named Betty and Barbara who smoke and have jealous husbands. The production company loves it but feels the story would work even better if re-imagined as a buddy comedy in which Bill and Bob are clean-shaven security guards at a Cleveland shopping mall who have a drinking problem, drive a tinicious Smart Car, and date two women named Betty and Barbara who don’t smoke but still have jealous husbands. And the best part is the production company will actually pay you to rewrite it this way. So you go to work, and in a few short weeks Bill and Bob wreak hilarious havoc at the mall.

Just as you finish the rewrite, the production company gets a new owner who decides to produce nothing but straight-to-Cinemax “documentaries.” Your Red State buddy comedy doesn’t fit this vision so the production company lets the option on your script expire without exercising it. You think you’re now free to sell your laugh-out-loud Ohio buddy comedy to the highest bidder.
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