Music

In my former lifetime, before I was a lawyer, I was a dancer (little-known fact — lawyers have hobbies and histories unrelated to the majesty of the law!). From my very first “bumble bee” recital routine to my internship with one of the premiere dance agents in Los Angeles, dance has consumed my life in every way imaginable. I shamelessly admit that, for me, even college drinking games often involved fouetté competitions with my dancer friends. But now that 4 a.m. rehearsals for Disneyland’s Main Street Electrical Parade have been replaced with late night brief writing marathons, like many other former dancers turned dance moms, I am thrilled by the resurgence of dance in pop culture. From So You Think You Can Dance to America’s Best Dance Crew, dance is undeniably hot right now. (Hey, it wasn’t long ago that the best we could get were the Fly Girls on In Living Color.)

The popularity of primetime dance shows has given choreographers a much-needed platform to showcase their talents and share their works with the world. For those of you who tuned into Season 7 of SYTYCD, no one will ever forget ballet dancer Alex Wong smashing Tabitha & Napoleon’s hip hop routine Outta Your Mind with all-star tWitch, or Robert Roldan and Allison Holker’s stunning performance of Travis Wall’s contemporary number Fix You. But for every piece of brilliance we are given from the likes of Mia Michaels, Wade Robson, Tyce Diorio or Dave Scott, just to name a few, there will be hundreds of knock-offs that blur the line between inspiration and imitation. I can’t even count the numerous renditions of Bob Fosse’s Steam Heat I have seen since the mid-80s, some absolutely fabulous, and many others…well, not so much. (For those of you familiar with the dance world circa 1985, how many horrific lyrical numbers did we have to sit through to Ice Castles (Through the Eyes of Love) and I Sing the Body Electric? And for those of you who aren’t, I promise you that was an awesome and highly-recognizable reference.) While many choreographers frequently voice complaints that “they” copied “my” piece, there is very little discussion regarding the legal implications of “borrowing” someone else’s choreography. And, unfortunately, this may be for good reason.
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Q: I want to shoot a short film in which a couple is on a date to the movie Casablanca in one of the scenes. I know I can’t use it without permission from Warner Bros. So I have three questions really:

1. Is it possible that Warner Bros. would grant me permission to use a few short clips of Casablanca for a small or zero fee? If so, who would I talk to at WB about this?

2. Can I use an out of focus shot of the film playing in the background without rights?

3. If I have actors rerecord the lines, imitating the voice of Bogart and Bergman, am I still in any trouble?

I know the easy answer is to spoof a generic romance movie, but it would pack a better punch if I could use Casablanca.

A: What about this elegant solution — why not spoof a generic romance movie instead? Can my answer be in a form of a question?
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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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If you live in the Hollywood area like this blogger, you’ve no doubt spent time at that Disneyland-esque outdoor mall, the Grove. Hitting the shops, grabbing a bite, seeing a movie, and inevitably, listening to the ubiquitous Frank Sinatra music being blasted through every speaker. (Hearing Sinatra music will now forever be associated in my mind with shopping.)

But the Grove can’t play that Sinatra music (and thereby create that amazing Pavlovian response in its shoppers) without paying up. Indeed, with certain exceptions, the Copyright Act requires any business — be it mall, boutique, restaurant, bar, gym, skating rink, or bowling alley — to pay licensing fees to “publicly perform” copyrighted songs. Although the term “public performance” might conjure up the mental image of Ol’ Blue Eyes’ doppelganger crooning “Come Fly With Me” in front of Banana Republic (if only!), the meaning of the term is much broader and includes not only live performances, but also recordings or broadcasts.

Now if you’ll excuse me, that reminds me, I think there’s a sale at Nordstrom…
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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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As anyone who plays video games these days knows, computer-generated representations of real people have become both increasingly commonplace and incredibly realistic. So much so, that a new area of litigation has emerged: right of publicity lawsuits for the unauthorized use of a person’s likeness in a video game.

Right of Publicity Law

The basic idea of the right of publicity is quite simple. Under the laws of most states, a person has the right to control the commercial use of his or her identity or “likeness.” This right encompasses all of a person’s distinctive characteristics, e.g., the sound of a chanteuse’s voice; a basketball star’s former name; or even a race car driver’s distinctive racing car. Traditionally, right of publicity lawsuits have been filed over unauthorized uses of a celebrity’s likeness in advertisements (usually television commercials):
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Q: There’s a song on one of my favorite albums that I’ve always thought would be perfect in a movie. I’ve been making movies for a few years now and finally have a project that the song is perfect for. Who do I need to contact to get permission?

A: Let me guess. You want to use “Oops I Did It Again” in your sequel to Titanic. I’m glad you feel passionate about the song. Now comes the hard part. You’ve got to figure out what rights you need and from whom you need them.
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In late March, Irving Azoff’s company, Front Line Management, sued Guns ‘n Roses front man Axl Rose for nearly $2 million of unpaid fees. Amazingly, this is the third major talent v. manager lawsuit in just the first three months of 2010. First was Sly Stone suing his former manager Jerry Goldstein for allegedly co-opting $50 million in royalties from Sly’s music, likeness and trademark. Then March brought a lawsuit between Lady Gaga and her ex-boyfriend and manager Rob Fusari, and the Axl Rose matter. So, why the sudden rash of manager disputes? Maybe it’s some mysterious plot by entertainment industry executives to reap strife between talent and their representatives. Or maybe the managers’ moons are in Venus and the talent’s moons are in Cancer (whatever that means). But I think there’s a far simpler explanation: given the unique nature of the relationships between talent and their managers, when the talent wants out, the managers are easy targets.
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Science-fiction author and futurist Arthur C. Clarke famously formulated three laws of prediction, the first of which posits: “When a distinguished but elderly scientist states that something is possible, he is almost certainly right. When he states that something is impossible, he is very probably wrong.” The same could be said of copyright law.

If you believe categorically that something is not copyrightable, you may well be wrong. You have a much better shot at being right if you conclude that this something possibly could be copyrightable, because the answer to the question “Is it subject to copyright protection?” is, more often than not, “It depends.” In other words, the law of copyright is weird, wacky and wonderful.
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