Film and Television

Sure, most of America might be abuzz about how poor NFL refereeing definitelymay or may not have swung the outcome of this week’s showdown between the Green Bay Packers and the Seattle Seahawks on Monday Night Football.  But this week, the NFL doesn’t have a monopoly on sports-and-games fairness scandals (even if its scandals might have the most effect on Vegas betting linesand home fantasy football leagues everywhere).  That’s because of a new case that will surely rock the (narrow, quirky, cloistered) world of game show and trivia nerds everywhere.

So here’s a trivia question for you:  what happens when producers of a game show tell two contestants there will be no trick questions on the show, and then throw something that might be considered a “trick question,” causing those contestants to blow $580,000 in potential winnings?  Do the contestants:

(A)  Quietly retreat to their homes and try never to look at the chain of excoriating comments on the YouTube video of their defeat.

(B)  Launch an inspiring grassroots campaign on the Internet to get a second run on the show.

(C)  Reevaluate their personal choices and embrace new lives of monastic asceticism, untempted by the siren’s call of game show winnings.

(D)  Sue.

If you guessed D, congratulations!  You win…the rest of this article.  So can two contestants who lost it all on TV win it back in the courtroom?

Before we answer that question, you must understand:  I’m a particularly qualified expert to opine on this subject.  Sure, the law degree is nice, but lots of people have those.  I, on the other hand, have particular insight on the question of what happens when you, oh, I don’t know, lose a half-million dollars in winnings (give or take) in the span of about 4 minutes in front of a national network primetime audience.  So I think these plaintiffs can take it from me when I say, Run from this lawsuit.  Run like the wind.


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 Q: A producer has offered to option my script.  I’m just starting out so the numbers are pretty low (it’s a 12 month option for $1,000 with a purchase price of the WGA scale).  I’m cool with that but have one problem with it:  what happens if she turns around and sells the option to a studio for a lot of money?  I think that’s what she plans to do.

A:  Pat yourself on the back, my friend.  You just spotted an issue that is often overlooked in standard option agreements.  To answer this, let’s talk a little background.


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Q:  I was wondering if you could help me with a problem I am having with the rights to a short story.  I have been in touch with the relevant owners of the copyright and they have been told by the author’s estate they are not allowed to do anything with the rights to the story.  However, what I am wanting to do with the story is not a direct adaptation — but more of an “inspired by.”  What I am wanting to do is a 60 minute TV one off.  The only thing I am desperate to hang on to is the short story’s “twist” and elements of the central dilemma. Where would I stand with moving ahead with different character names, different structure, but retaining the twist and profession of the central character from the short only – crediting only “inspired by”?

A:  Copyright law doesn’t protect ideas – it protects the expression of ideas.  This is a simple concept in theory, but applying it to a particular situation could be challenging.  For several excellent, definitive, and thought provoking discussions of this topic, please see our blog


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Q:  I am a young filmmaker in Australia.  I have been chasing the film rights to a book written by an American author.  I have gone through the various publishers and have finally been given the name of the agent who represents the author in the States.  I am interested in knowing if the film rights to the authors book are available, and if they are, I want to know the correct pathway to go down to purchase them.

A:  To find out if the film rights are available, all you need to do is ask the agent (but you also need to do a lot of other things described at the end of this blog).  Assuming the rights are available and owned by the author, the next step is to negotiate the deal with the agent on behalf of the author to option the film rights.  (If the agent is a tough negotiator, you can try to cut him out of the equation and deal directly with the author; that’s a risky strategy that can backfire.  But don’t worry, there are other books available.)  And if you make the deal, the final step is to document the deal in an option agreement.  You could actually purchase the rights, as you suggest in your question, but it’s unusual to do so — the typical way to go about this is to option the rights.

 
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Q:  What are the legalities of using actors to portray real people in a film — a fictionalized bio-pic in which the main character is purely fiction but some of the other characters are real, both living and deceased?  For example, if Forrest Gumpdid not use actual footage but instead chose to represent those scenes using actors to represent the famous people?

A:  I really liked Forrest Gump when I saw it.  I’m pretty sure I even cried in it.  Now I hate it for some reason.  Maybe it’s just a general backlash against Tom Hanks’ haircut in The Da Vinci Code.  But let’s not get into that.

As to your question…we Americans generally think we all have a 1st Amendment right that gives us the ability to say what we please when we please, which has lead to such enlightening phenomena as Ashton Kutcher’s constant Tweeting (thanks a lot, Founding Fathers).  What is important to understand, however, is that this right of free speech is not absolute.  We are not always free to say what we please, especially when it comes to saying things about other people.

Before answering your question, a word of warning:  whether or not your depiction of a real person in a film can open you up to liability is not a question that has a definite answer.  It requires a fact specific analysis and even then, it may not be entirely clear how strong of a ground you stand on.  Also, you’ve got to remember that we’re dealing with people and people are nuts.  Thus, even if it appears you’ve done everything by the books and you’re legally justified in doing what you’re doing, you could still get sued by someone who didn’t like the way you depicted him or her in a movie.


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For those of us (males) who entered adolescence in the early ‘90s, Angelina Jolie is a semi-celestial being whose very presence makes us want to cry out “we’re not worthy.”  Okay, so maybe the 13 year-old in me still wants to be Crash Override spelling out “CRASH AND BURN” for Acid Burn after defeating The Plague.  But that


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Q: Hello, I just read the article on what “defined net profits” is/means.  I’ve just signed a deal memo and am concerned with the wording…actual proceeds, no mention of gross or net (which may be a good thing).  Please let me know what might be next steps…

A: The basic difference between gross and net is the off the top deduction of expenses and fees in calculating net.  Speaking of off the tops, I just came from a bris.  It was a particularly good one.  Have you ever been?  If not, find one on Facebook or Craigslist, grab a few friends, and attend.  You’ll enjoy it.  Mohels tend to have a great sense of humor.

Anyway, your deal is probably with a production company that will not distribute the film itself.  And the term “actual proceeds” probably refers to the revenues received by the production company.  The blog about “defined net proceeds” focused on a distributor or studio definition of back-end, which is basically distribution revenues less distribution costs.  In your case, if in fact your deal is with a production company that will not distribute the film itself, you will be participating in the production company’s revenues.

 
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I tried, Law Law Land readers, I really, really tried. I struggled, but alas, I was not strong enough to stop myself from writing about the Kardashian divorce.

The 72-day marriage (if it can even be called that) of Kim Kardashian and Kris Humphries (herein referred to as “KK,” or maybe “666” would be more appropriate), is chock full of legal issues. What about the pre-nuptial agreement? (“Ironclad,” I’m sure, but speculation is already swirling about whether Kim’s “shady behavior” has rendered it “worthless.”) What to do with the gifts? (Apparently Kim is donating$200,000 to charity in lieu of returning the gifts. I’m sure the people who bought her the $375 candy jar, or $6,500 vase, or $1,250 serving spoon, or $1,600 teapot, or $840 ashtray are thrilled about that decision and the tax write off she gets. And no, I did not make up those items or prices). Why isn’t gay marriage legal and this is? (Beats me, but it really makes you think about that whole “sanctity of marriage” argument.)

No, you aren’t having a stroke, it really is that big and shiny.

But the burning issue I want to write on? What happens to THE RING? (I think the 20.5-carat sparkler deserves all-caps treatment.)
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Q: I wrote, directed and produced a sci-fi action short that I think would make a great big budget feature. In the meantime, I have a friend who works for a small video game developer who absolutely loves the concept of my short and thinks it would make for a great game. I think it would be very cool and am thinking about putting together some sort of deal with my friend, but I don’t want to do anything that could jeopardize my ability to someday make a studio film based on my short. Should I just pass or do you think there’s a way I could make this work?

A: For you and your friend’s sake, I hope your short doesn’t involve a chubby, mustachioed Italian plumber with a love of coins who’s intent on saving a princess from mushroom and turtle creatures… in space. If that’s the case, we may have a problem. If not, there’s a chance you can make this work, but you’re right to be concerned about the possibility that your granting of rights to this video game developer could later affect your ability to produce a big screen adaptation of your short film.

First a quick note to those readers who think this may not apply to them because it involves video games: the majority of these issues would arise with respect to a production of any type of derivative work based on something you own, whether it be a video game, a book, a stage play, etc. so don’t be afraid to keep reading!
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Remember the “senior superlatives” from your high school yearbook? Maybe you were voted “most likely to succeed” or “most likely to be a rock star.” Me? My dear classmates graciously awarded my best friend and me the title of “Most Likely To Be in an X-Rated Movie.” (It was unclear whether we were supposed to star in it together or what.) At the time, I pretended it was a compliment, smiled and curtseyed, and then secretly vowed to spend the rest of my life proving them wrong. Well Bellingham High School Class of 2002, now I realize what you actually meant to say: Amber M. Burroff, “Most Likely To Write a Sassy and Salacious Legal Blog About an X-Rated Movie.”

So, here’s the scoop. In April 2009, Arrow Productions, Inc., owner and distributor of Deep Throat — a tastefully-titled carnal classic whose plot (the sexual adventures of a sexually frustrated woman who is in search of the saucy secret to the female orgasm) is surpassed in greatness only by its tagline (“How far does a girl have to go to untangle her tingle?”) — filed suit against VCX Ltd. and its owner, David Sutton, alleging a variety of claims for copyright and trademark infringement arising out of VCX’s unauthorized distribution of Deep Throat. According to Arrow’s complaint, VCX and Arrow are both in the business of “selling prerecorded sexually oriented motion pictures for personal home use, presently and, in recent years, in DVD format and previously in VHS videotape format.” (Translation: “we sell porn.”) And in addition to competing for sales of Deep Throat, Arrow and VCX have both long distributed one of the other seminal classics of the “Golden Age of Porn,” Debbie Does Dallas.

Last month, though, after two and a half years of down-and-dirty legal combat, Arrow and VCX suddenly settled the lawsuit, with the parties agreeing that Arrow would hold the exclusive rights to Deep Throat, while VCX would move forward as the exclusive distributor of Debbie Does Dallas. So now that this long-running battle over two titans of adult film history has come to a sudden and anti-climactic finish, what lessons can we learn?
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