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ENTERTAINMENT LAW 1. Copyright a. What is copyrightable? i. To be given a copyright the work must be: 1. Original a. An independent creative expression of an idea i. Feist: Organizing phone numbers in a phone book is not copyright protected because this is just the expression of research without an independent creative expression of the information. b. Research and facts are not copyrightable. i. Miller: Guy wrote a book about a kidnapping where girl was placed in a glass coffin and buried alive. Dude wrote a screen play based off story of girls kidnapping and rescue. Guy was not able to claim that Dude infringed on book when all Dude did was use facts to create screen play. 2. Fixed Medium Of Expression a. Must be fixed in some tangible form i. EX: dance, photographs, scripts, books. ii. Copyright only protects the artistic expression behind an idea 1. EX: Dan Brown case: Mary Magdalene having kids with Jesus is not copyright protected. The artistic expression depicting this relationship copyright protected. b. What is Infringement? i. Infringement of a copyright is actual copying of the protected work. 1. Test for whether a work has been copied. a. Did the author of the infringing material have ACCESS to the original copyrighted work? i. Access to the original copyrighted work needs to be more likely then not. 1. EX: Bright Tunes: George Harrison wrote a song that was similar to another previously released song by another artist. Harrison was found to have had access to the song because it was a well know top 40 song. ii. There needs to have been a way for the original copyrighted work to have been accessed. 1. EX: Sister act case: Gal says that sister act infringes on her work. Gal loses because she cannot prove that her work was ever accessed by the writers of sister act. 2. EX: Selle: Small local band says the Bee Gees infringed on their song. Small band loses because they cannot establish that the

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Bee Gees ever had access to their work. b. Is the infringing work SUBSTANTIALLY SIMILAR to the original copyrighted work? i. For a work to infringe on copyrighted material the work must go beyond using scenes a fair elements of the story. 1. EX: Nichols: Move about an Irish Jewish relationship does not infringe on a play about Irish Jewish relationship because they were only substantially similar regarding plot point inherent in telling a story about a mixed relationship. 2. EX: Jaws v. Great White: Infringement because Great White was using similar characters and plot points and not just the elements needed in telling a Shark story. 3. EX: Denker: Driving Miss Daisy Case. Two plays are written about elderly Jewish people and black assistant/helper. These plays are only similar in their use of stock characters and scenes a fair. There is no infringement because nothing that is copyright protected has been used by the later work. c. What elements of a story are unprotected? i. Scenes-a-faire are unprotected by copyright 1. Scenes-a-faire are scenes that necessarily result from the choice of setting or situation a. EX: Cop drama necessarily have to deal with the under belly of society and a partner/police force. 2. Stock themes commonly linked to a particular drama are not copyrightable. a. EX: Star-crossed love, spy drama, superhero/villain dichotomy. d. What elements are protected? i. Characters 1. The more developed a character the more protected the original expression that embodies the depiction of that character. 2. Things that are needed to create a specific character are not copyrightable. a. Warner Brothers (Superman v. Greatest American Superhero) Greatest American Hero did not infringe on Superman because the similarities were only things that were not copyright protected as they were inherent elements of a superhero story. e. Defenses

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i. Fair Use 1. There are two forms of fair use a. Education b. Parody 2. Fair use requires that only what is needed from the copyright is what is used. a. EX: Harper & Row Publishers: Magazine used entire section of former presidents Ford book to report on why Nixon was give a pardon. This was NOT fair use because it used more of the copyright work then was needed to report this news story. 3. Four elements to Fair Use a. Purpose of the Use of the copyrighted material i. If the use is for the purpose of reporting this is fair use. ii. If the use is for commercial purposes then this is not fair use. b. Nature of the copyrighted work i. Historical or biographical facts are fair use ii. Creative expression may not be used as fair use when it conflicts with the copyright holders interests. 1. EX: Harper & Row: Magazine publishing portion of former president Fords book went against the interests that Ford had in controlling the distribution of his work. c. Amount and Substantiality of the Portion Used i. Not fair use if more then what is needed to report the news is used. 1. EX: Harper & Row: Not fair use because a whole section was used almost verbatim. d. Effect on the Market i. If the use of the copyrighted material will affect the value of the copyrighted material then it is not fair use. 1. EX: Harper: The use of this info from Fords book affected the sales because magazine used the most important part of book. e. Parody is fair use i. Parody is fair use because it uses the copyrighted material for comic effect. ii. Parody needs to use the original material for humor because parody requires mimicking an original to make its point. 1. EX: Pretty Woman Case: Parody of pretty woman was fair use because the parody used

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enough to conjure the original song but then departed from the original to create a humorous distortion of the work. a. Only took what was needed to make sure people got the joke and then departed to create a new copyright protected work. iii. Satire is not fair use because it can stand on its own two feet without using original material. 1. Anytime satire borrows from the original the uses must be justified. 2. Trademark a. What is trademark protected? i. Trademark offers protection to any word, name, symbol, or device used by one person to identify and distinguish goods from another source. ii. Trademark only protects the mark from being used by competitors in a way that is likely to cause confusion or deception in the consumer. iii. Trademark is used to supplement copyright law 1. Copyright will not protect a character name or title but trademark will. 2. Trademark protection protects the mark from being used by competitors when there will be a likelihood of confusion. a. EX: Larry Potter v. Harry Potter: Ct held that there would not be confusion between these two characters because of the significant differences between the two stories and no reasonable person would confuse Harry for Larry. b. What is Infringement? i. Trademark law must be balanced with the first amendment. 1. Using a mark for artistic reasons is protected by the 1st amendment and is not infringement. a. EX: Fellinis Ginger and Fred: Ginger Rogers was not able to win an infringement claim against Fellini because he was using her name to invoke an imagine and this title was chosen for artistic reasons. b. EX: New Kids on the Block: New Kids on the Block were unsuccessful in bringing an infringement claim against 900 fan party line because the use of their name did not suggest sponsorship or endorsement by the band and was not a product that would cause confusion in the consumer. ii. It is not trademark infringement to use a work in the public domain. 1. Commemorative film about Eisenhower used film that was in public domain and no longer protected by copyright plus new materials. Commemorative film did not infringe or the original trademark holders trademark because the commemorative film did not simply repackage and resell but created a new trademark by producing its own film.

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iii. It is not infringement to use a mark in a commercial comparing its product against another. 1. EX: Coke can unfavorably compare Pepsi in a Coke commercial. iv. Elements to trademark infringementTHE POLOROID TEST 1. The strength of the marks a. EX: Hormel Spam v. Jim Hensons Spaam: Muppet Treasure Island created Spaam as a lampoon of the lunchmeat spam. The strength of the Hormel Spam mark was not diminished because it was Spaam was a parody which conjured the image of Spam but was a clearly distinct use. i. Would be infringement if the junior mark was counting on making consumers think there was a relationship between junior marks product and senior marks product. 2. The degree of similarity between the marks a. EX: Spam v. Spaam: the two marks are dissimilar and do not infringe because they are very different distinct visual displays. 3. Proximity of the Products a. EX: Spam v. Spaam: Not infringement because there is no proximity between lunch meat and a pig puppet that would cause confusion in the consumer. 4. The senior products interest in expanding into related fields. (bridging the gap) a. EX: Spam v. Spaam: Henson did not infringe on Hormels mark because Hormel did not have any intention of entering the same market as Henson and consumers would not expect Hormel to make products similar to Henson. i. Note that luxury brands like Lexus expand/ make prototypes in areas to protect the mark in those areasEX: Lexus watches. 5. Actual confusion a. EX: Spaam was not infringing on Spam because there was no evidence that consumers mistook Spaam as promotional figure for Spam or a Spam sponsored figure. 6. Bad faith a. EX: Spaam did not infringe on Spam because there was no evidence that Spaam was trying to poach business way from Spam by trying to create confusion in the consumer. (No evidence that Henson wanted people to buy Spaam stuff thinking it was Spam.) 7. Quality of the Products a. Can be important because it may hurt the senior mark when a junior mark of inferior quality confuses the consumer. i. If the consumer thinks that an inferior product is

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made by the senior mark this hurts the senior marks street cred. b. Products of similar quality hurt the senior mark because the consumer will be confused by the similar products or comparable quality. 8. Consumer sophistication a. Very closely linked to market proximity. i. EX: Spam and Spaam are not likely to cause consumer confusion because a sophisticated consumer would not confuse a puppet with lunch meat. c. What does trademark protect? i. Trademark protects the consumer from confusion. 1. We want people to get the products that they think they are buying so we protect consumers from getting products that they think are endorsed or licensed but are not. 2. Trademarks do not expire but last until the trademark is no longer in use or has a secondary meaning. a. A secondary meaning occurs when the mark is readily identified with the product. i. EX: Tommy Hilfiger, Coke, KFC ii. EX: River Kwai: Film is made about war prisoners in Japan. Later a book is written about war prisoners being used in a similar way but for different work. This book uses the films title and is called Return to the River Kwai. The film and book are not associated. Later book is made into a second film. This was infringement on the first films trademark because consumers assumed that the two movies were associated. iii. EX: Barbie Girl Song: Song is not infringement because of first amendment and because no one is going to think that a toy company authorized an adult themed pop song. ii. Trademark protects the creator of the mark from having others use that mark, so that the others can reap the benefits of the marks secondary meaning. 1. A mark has a secondary meaning when it is associated with a single source. a. EX: General Lee Case: Warner brothers licensed the Duke of Hazards car to one toy company. Another company started making a car that looked like the Duke of Hazards car but was no called a Duke of Hazards car. The use of the trademark of the flag and numbers on the General Lee was infringed by the unauthorized toy because the trademark of the General Lee had a secondary meaning

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being part of the Dukes of Hazard. iii. Trademark laws protect the mark from dilution. 1. A mark is diluted when the mark is blurred. a. A mark is blurred appears on a variety of goods and is no longer able used as a mark to identify a unique product. i. EX: Buick Aspirin or Kodak Pianos. ii. EX: Spam v. Spaam: Henson will not be using Spaam to compete with the Hormel product line so this is no dilution of the Spam mark 2. A mark is diluted when the mark is tarnishing. a. A mark is tarnished when it is used on products that are of inferior quality or character. i. The mark is tarnished when a mark is infringed upon and used in a negative way. ii. EX: Spaam was not tarnishing the Spam trademark because it was not promoting an inferior or competing meat product and Spaam was not making any negative remarks about Spaam. d. Defenses i. First amendment 1. EX: Barbie Girl: Creative expression is has a higher value in society then protecting against possible trademark infringement. Aqua using Barbie in a song is not infringement because they have a first amendment right to creative expression and parody. 2. EX: Fred and Ginger: Unless there is a real reason for invoking the trademark image the use of the trademark will be infringement. Film maker did not infringe on trademark when he used Fred and Ginger because he was purposefully trying to evoke the imagery associated with that mark for artistic reasons. 3. Contracts a. Rights i. Property Rights 1. Furnishing Agreement- Company/ Producer will pay creator for the idea/treatment/master copy because it has commercial value. 2. Industry customs for acquiring property rights are a valid standard a. EX: Opening and reading a script will result in having to pay creator rights. 3. Based upon is a valid contract term if you can establish access to the material and similarity between the work produced and the original work. a. Need both elements- access and similarity. i. The more access to the info the less similar the works have to be. 1. Coming to America case: Guy who provided treatment of film that was not made is owed money because of gimmicks used in Coming

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to America that makes that film based upon Guys ideas. a. Have to show actual access i. Woman giving a script to Gal who gives it to Friend who passes it on to Dude does not establish access. b. Similarity must be substantial- not just scenes a faire but gimmicks and plot points. i. THIS IS STATE LAW: CA different from NJ different from NY. b. Artistic credit i. Artists can contract for credit 1. Artists can contract for where their credit is featured. a. If credit is changed without authorization this is breach of contract i. EX: Film is released and Guy is promised that his name will be featured first. Dudes name appears before Guys. This is a breach of k= reverse palming- not trying to misappropriate good but depriving Guy of economic opportunities and public good will. ii. All artists must be credited for the work they create. 1. Protection is offered under the Lanham Act because we want to ensure that consumers get the right product. 2. Knowingly falsifying credit- without approval- is punishable under the Lanham Act 3. Incomplete credit is punishable under the Lanham Act a. EX: Guy wrote a song with Group. He and Group all took part in writing the song. Guy left Group and joined Crew. Guy released song with Crew and didnt credit Group. Guy is liable to Group under the Lanham act for misleading the consumer. 4. Credit is only incomplete if it would confuse the consumer a. Guy helps Gal make changes to edition of her Dads book. Guy is left off title page in latest edition. Guy has no claim under the Lanham act because he is not a creator of the work (just an editor) and the consumer is not buying the work because of Guys connection to work. iii. Changing the credit if you have no right to do so is protected under the Lanham act 1. EX: Film Company makes movie and hires Distributor. Distributor changes opening credits to say that they are presenting this film. Distributor is liable to Film Company under the Lanham Act.

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a. Saying you are responsible for the presenting the movie when all you are doing is distributing the film is going to confuse the consumer into thinking you had some artistic role. c. Moral rights i. The copyright owner is the one who gets to control the Moral Rights 1. Unless the K says that the Artist has waived moral rights the work cannot be changed. a. EX: Guy signs over masters to Record Co. Record Co. cuts the tracks down to 8 min. Editing the tracks to make them shorter violated Guys moral rights. 2. A work for hire vests the copyright in the Company/ Employer. ii. Changing the work in any way that the Artist did not intend is a violation of the Artists moral rights. 1. EX: Gal wrote a book and Publisher licensed the Book to Company to edit and change. Gal did not intend for book to be edited this way so Publisher cant license book. a. If Gal waived moral rights then Publisher could do this, but without waiving rights Book cant be changed without Gals approval. iii. Industry practices for exploiting the work need to be considered in the K. 1. Editing a film to allow for commercials is an industry practice 2. Cutting a film to fit TV is an editing practice. a. However this will change the work so the Artist may need to give approval. iv. US courts do not recognize moral right v. US courts do recognize that the Artist is protected from having their work mutilated or distorted 1. Monty Python skits edited and changed for US TV without approval mutilated and distorted the skits allowing Monty Python to recover under the Lanham Act. vi. Under the Lanham Act any changes to a movie must be noted on the packaging of the movie or before the movie 1. If the film is changed without the directors consent this needs to be noted. d. Creative Control i. Vest in the Artist 1. Can be assigned e. Contract formation i. A deal memo will only be enforced if the memo contains definite language explaining the material provision that will establish each parties performance. ii. Entertainment Ks are usually oral 1. This means the statute of frauds often applies. a. Test is whether the K could be completed in one year, iii. Material Terms of the K must be in agreement for there to be a valid k.

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1. Kim B loses a K case because of nudity since this was not a material term and could be flexible. 2. Also she had a history of getting naked a lot in films and jury didnt believe she had issues with it. f. Contract formality i. Promisory Estopple can be used to recover expenses spent in reliance on the K. 1. EX: Producer spent money to make B-way show starring Star happen. Star backed out. There was no sign K but there was affirmative promises that Producer relied upon so Star had to repay Producer for expenses incurred because Producer relied on Stars promise that she would star in B-way show. g. Definiteness i. A contract will not be void for vagueness- Will be definite- as long as: 1. The terms allow the Ct to know whether a party has committed a breach 2. Performance by the parties must be understood by: a. Express language b. Legalize c. Past transactions d. Specific Industry Terms i. As long as a Ct can understand what the parties intended for these terms to mean with a degree of certaintity the term is not vague. ii. K disputes arise over the use of the term best efforts 1. Best Efforts are definite when: a. There is some way to measure the best effort EITHER i. Expressly or ii. Implied by circumstance (prior business relationships) 1. EX: Best efforts was void for vagueness in publishing K because best efforts to be used in negotiating terms for an agreement means nothing. a. No way for there to be a way to measure if parties are using best efforts. iii. If terms dont exist the court cannot supply them iv. If terms have been expressly rejected parol evidence cant be used to get the terms in 1. You need actual agreement to some standard for the term to be defined. h. Consideration i. Consideration means that both sides have given a promise. ii. Consideration gives the court evidence that the parties intended to be bound by the K.

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iii. Consideration makes a K enforceable. iv. Advance Money is binding consideration. v. Consideration keeps one party from being at the mercy of another. Mutuality i. Both parties have to have some mutually binding promises 1. IE: Royalties are a promise to pay on sales. Artist agrees to make a product from which they can earn royalties. Contracts with minors i. NY and CA allow State CTs to approve employment Ks for child entertainers. ii. Ks for people under 18 have to be signed by a parent iii. NY has a 3 year limit on Ks for the services of a child iv. Ks for child services require that the childs net earnings be set aside in a trust 1. CA says no more then 50% of the childs earning have to placed in a trust. v. A minor can disavow a K 1. If a minor disavows a K the minor cant keep the benefits from the K. a. Kid has K with manager. Kid gets role on Soap. Kid wants to leave manager so he wont have to pay commission. Kid cant disavow manager and still keep role on Soap because role of Soap is from Mangers work. Contract duration i. CA law limits duration to 7 calendar years. Bankruptcy i. Chapter 7- liquidation of all the non-exempt assets and divides them up among the creditors. ii. Chapter 11- debtor in possession- court appointed trustee in charge of reorganizing the business. iii. Chapter 13- work of the debt 1. You cannot for an Artist to work under chapter 13- violation of the 13th amendment- no involuntary servitude. Contract obligations i. Generally 1. Courts are supposed to put themselves in the shoes of the parties at the time they contracted 2. Terms should be interpreted so that they do not favor the drafting party ii. Performer/ Writer 1. Creative Control a. You have to do the job that you are hired to do to the best of your abilty. i. You can ask questions and be a little insubordinant but you cannot willful breach your obligation to provide the creative service.

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1. EX: Gal hired to perform in movie. She and director but heads. Director fires her for failure to perform. Gal can recover because she did not file to perform because there was no willful misconduct. 2. Actors/Writers may have to comply with Morals Clauses a. EX: Phelps and Wheaties. b. Moral Clauses are an opt out for the Money. i. If you are performing well and there is no public backlash the clause wont be invoked 1. If the Money needs to distance its self from you the clause will be invoked. 3. Non-compete clauses have to be part of a job offer or sale. a. You cant just have an agreement not to compete agreement as it own K- has to be ancillary. b. Non-compete agreements have to be reasonable in time and place. i. EX: Guy had non-compete that said he could create books with Character for Dude but if he leave Dude he cant use Character to compete with Dude. This is a valid non-compete. ii. EX: Boxer having non-compete that says he will not box until a rematch is not a valid non-compete unreasonable because no time limit- rematch unscheduled and could take place whenever. 4. Actors can have weight requirements in a K a. You cant discriminate based on preggers or race b. Can discriminate against certain characteristics i. IE- Breakdown characteristics. ii. Ultimately casting and producers call 1. IE: Miss Saigon and the Engineer. iii. Studio/Publisher 1. Satisfactory Product needs to be defined a. Without any standard as to what is satisfactory there is no way for the Court to decide if the Artist or Studio/Publisher is breaching the K i. EX: Guy wrote a book that Publisher rejected because the book needed edits. Book needing edits doesnt mean that the product is unsatisfactory in and of itself. 1. If Publisher wanted a certain number of edits to be excessive and unsatisfactory then K needed that to be clear. a. A work may be unsatisfactory if it can be proven to be of inferior or substandard quality

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i. EX: Guy wrote a book that Publisher thought needed extensive re-writes. Publisher wanted Guy to use a book Dr. Guy refused. Publisher was allowed to declare Guys book unsatisfactory. 2. Best Promotional Efforts a. Means a good faith effort to promote the material giving the material a good change to catch on with the public. i. Cant reduce original K terms without cause or justification n. Royalties i. Gross Receipts= whatever the movie/ record/book makes you get a % off ii. Net profits- once the product is in the red you will get your %. 1. Never go for net profitsyou will never see this. 2. Lots of overhead gets factored into this iii. Not unconciousbaleyou get the industry you negoated and you know this will be there iv. All in rate 1. Everyone who gets a % get its from artists royalties v. A compulsory license in music is 6.6 cents for a 5 min song 1. Rate goes up for longer songs vi. Royalty payments when company goes bankrupt 1. Company goes bankrupt it can sell/ assign copyrighted material a. New owner has to pay royalty. b. If royalty is not paid there is a breach of k. vii. Royalty when Artist has gone bankrupt 1. Company gets to recoup advances before anyone else gets to get paid from royalty payments. o. Advances i. Advances do not have to be repaid 1. They are deducted from advanced ii. Negoated artist by artist 1. Cant bring a class suit that industry payouts under royalties are unfair when you are getting huge advances p. Profits i. Revenues are tricky because video rental and movie theatres actually retain 2/3 of costs to fund their operations ii. 90% of licensing fees go to merchandizer. iii. To calucalte true profits you need to deduct from the actual costs incurred. 1. Negative costs: what production actually cost a. IE: studio fees, artist fees 2. Distribution cost: what it cost to get product to people a. Container and shipping costs q. Remedies

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i. Injunctive Enforcement of personal services K 1. Hard to figure out what performance is worth so Companies try to force performance. 2. K law does not allow Companies to force personal service performance a. If personal service is extraordinary company can prevent the performer from rendering services to anyone else during term of K if performer breaches and refuses to render service. 3. Rights of first refusals/ preventing someone going elsewhere a. Need to prove: i. Uniqueness ii. Irreparable injury iii. Cant unduly restrain iv. Investment of company in talent v. Only available if Artist actually leaving for a competitor. 4. Remedies against the Company who knowingly induces the breach a. Can be awarded damages and injunction i. Have to prove that Company knew it was inducing a breach. 5. CA injunction legislation a. To get an injunction you need to have: i. A k in writing ii. Encompass unique and extraordinary services lang. iii. Guarantees at least $6000 a year 1. Has to actually earn more then $6000 a. Olivia Newton John could be prevented from performing when her K after royalties were reduced from her advances she because she made over $6000. 2. Company cant use an option right and pay $6000+ and prevent artist leaving a. Has to be $6000 upfront. 3. ****1994 law changed to: a. $9000 yr 1 b. $12,000 yr 2 c. $15000 yr 3 through 7 iv. CA law limits K to 7 years ii. Damages for K 1. Performer K producer a. New York- performer is awarded salary under K 2. Performer is required to try and mitigate damages. a. If performer mitigates damages this is subtracted from salary awarded.

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3. Mitigated opportunity must be: In CA a. Comparable work b. Substantially similar opportunity. i. Musical is not the substantially similar opp as drama- refusing on e role after loss of the other will is not failure to mitigate, 4. Mitigated opportunity must be (everywhere else) a. Must not be different or inferior. 5. Perfromer can be awarded loss of opportunity money. 6. Pay or play--- we release work or we give you money. iii. Damage to reputation 1. Have to prove that not getting work because of firing. 2. Award based on what you should be earning and what you have earned. iv. CA does not allow breach of good faith and fair dealing tort claims. r. Authors v. Publisher remedies i. Only can be given what was expected under the K and no speculative bonuses. 1. Entitled to advance- not royalties. 2. Entitled to cost of publisher to print book so you can go and print book. 3. Only nominal damages will be awarded when the existence of damages are uncertain or speculative. 4. NY rule: existence of damages is certain but amount is unclear injured party will get substantial damages