Ah, the cease and desist letter. There is no more trusty weapon in the arsenal of an entertainment lawyer.

Most of these letters will get the job done, but tend to be dry and uninspired. They often appear to have been cribbed from a set of legal Mad Libs:

This letter will serve as formal notice that the above-referenced company is the legal owner of _____[noun]_____. It has come to our attention that you are _____[verb ending in -ing]_____. We hereby demand that you _____[verb]_____. Should you fail to _____[verb]_____, we will _____[scary-sounding verb]_____. Govern yourselves accordingly.

Scintillating.
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The entertainment industry can be a legal minefield. And while the legal issues that face documentary filmmakers may not be unique, documentarians — who typically work on shoestring budgets, rely heavily on preexisting copyrighted materials, and often say things that moneyed and powerful interests don’t want to hear — are uniquely vulnerable. With that in mind, here’s a “top 5” list of legal issues that you, our favorite documentary filmmaker (yes, you, silly), should know about when planning, making, and selling your film.
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I love old family movies. You know, those frenetic-yet-nostalgic, motion-sickness-inducing Super 8 films from your childhood? (Believe you me, the cinéma vérité, shaky-cam directors who are currently in vogue have nothing on my dad…) Now that my family’s home movie library has been converted to DVD, there are endless opportunities to force my husband to watch me and my mom ride a camel at “Jungle Habitat” (can I get a shout-out from those of you who grew up in the NY/New Jersey area in the mid-1970’s?) or the fourth of July picnic where the sparkler burned my hand, or — one of my personal favorites — my five year-old self singing “On the Good Ship Lollipop” and dancing the Charleston in the first grade holiday play (trust me, its cuter than it sounds).

And so it was with great anticipation that I prepared our video camera for my seven year-old’s musical theater debut in her summer camp’s production of Grease: The G-Rated Version (no swearing, no teen pregnancy, no smoking, no men rubbing cellophane on their crotches…)

But then we got the letter.
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Documentary filmmaking is an intellectual property minefield. The entire undertaking is imperiled by the potential for copyright and trademark infringement. Then there are numerous state law pitfalls such as violating someone’s right of publicity or invading someone’s privacy.

And until recently, documentarians could also run afoul of the Digital Millennium Copyright Act (DMCA) for circumventing the digital locks on DVDs that prevent copying in order to access and incorporate high-quality film clips into their documentaries.

Last week, the Copyright Office made headlines by expressly legalizing the jailbreaking of iPhones. But over the excitement generated by 1337 hax0rs and tech geeks everywhere, you may not have heard the quiet sigh of relief emanating from documentary filmmakers everywhere, as the Copyright Office also finally granted a DMCA exception for documentary filmmaking. (Other sounds that may have resulted from the Copyright Office’s ruling: tittering giggles over the fact that one of the new regulations applies to something called a dongle.)
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You may recently have felt a great disturbance in The Force. It wasn’t the Palm Springs earthquake, or Lindsay Lohan’s courtroom meltdown. Nope, it was the “Star Wars Smackdown” instigated by George Lucas a few weeks ago.

Lucas is looking to “force” (I know, I know…) Hong Kong based laser manufacturer Wicked Lasers to change the design of a high powered laser product he feels looks too much like the famous (but fictional) lightsaber from his landmark films. His company, Lucasfilm Ltd., hassent a cease-and-desist letter threatening legal action if the laser company refuses to make appropriate alterations or remove the product from the market outright. Lucas apparently perceives the laser as a copyright threat; according to CNN, the letter challenges that “[i]t is apparent from the design of the Pro Arctic Laser that it was intended to resemble the hilts of our lightsaber swords which are protected by copyright.”
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Summit Entertainment, LLC, the studio to blame for our country’s current obsession with all things vampire, and the reason why “pale, unshowered and moody” is the look that all teenage boys seem to be sporting these days, is suing clothing manufacturer B.B. Dakota, Inc. for having had the good (or bad) luck of having one of its jackets chosen to adorn actress Kristen Stewart (a.k.a. Bella Swan) in the original Twilight film.

“What?” you might be asking yourself. “How can that be?”

Well, my dears, let me explain. Do the litigation thing long enough and you’ll find you can’t be surprised by much anymore.
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Oh, the halcyon days of the summer of ’07! Your kids (or you) were enthralled with their first chance to read Harry Potter and the Deathly Hallows. Your 401(K) balance probably had an extra zero or two on the end of it. The “steroid era of baseball” was a mere virtual certainty, rather than a documented fact. None of us had ever heard of a collateralized debt obligation or credit default swap. And I, but a baby lawyer, was enthralled with this crazy new lawsuit filed by Viacom against Google, alleging that Google was itself responsible for $1 billion worth of copyright infringement on its recently-acquired YouTube service. And oh, how the world has changed in these last three years! Teenage vampires have supplanted teenage wizards, you can safely assume that the slugger in your kid’s little league was juicing, we’re all experts on the vagaries of inventing nonexistent wealth with inscrutable financial instruments and then destroying it with other inscrutable financial instruments, and the Viacom lawsuit…well, that’s still going.
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Is it just me, or has there been a larger-than-usual number of right of publicity complaints filed lately by celebrities against advertisers? Among others, we’ve seen Lindsay Lohan’s action against E*Trade andHulk Hogan’s lawsuit against the Post cereal company. In each of these cases, the primary legal issue is whether the celebrity’s identity, or “persona,” has actually been used by the advertiser. This month brought an even more straightforward right of publicity action involving the use of an Albert Einstein photo in a print ad for General Motors. What’s amazing about this one is that, not only did the advertiser not get permission to use what is clearly Einstein’s likeness, but that it placed Einstein’s head on the body of a shirtless underwear model. Which all leads me to wonder: is our bailout money going to pay for this?
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There is an old Chinese proverb which cautions against drawing attention to something you are trying to conceal. As the story goes, a man named Zhang built a small fortune of 300 ounces of silver through hard work. Fearful that someone might steal his fortune, Zhang decided that the best thing to do was bury it. After burying the money, Zhang then had a brilliant idea to further ensure his money’s security. He decided to mark the spot with a sign that read: “This land does not have 300 ounces of silver buried here.”
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Q: My company is producing a film which has a character that is taken from another very well known film. This new story has absolutely nothing to do with the previously established film, is not in any way a sequel and we never even see the other person, they’re invisible in the mind of a lunatic and it’s questionable whether they exist or not. He just mentions them by name and says that they’ve been friends since he saw that movie. What’s our legal leg to stand on to be able to keep this character by name, in the script, which adds a great deal of humor as he interacts with the character and we can’t see it… or is it better to hedge our bets and make it a completely made up invisible friend? I seem to be stumping every lawyer friend I have with this one, as it’s a peculiar case… any thoughts? Or, is there an alternative in just securing permission from the controlling entity of the previous film?
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