M.E.L.O.N.

Agreeing to License Part One: Free to Roll With The Changes

by Mark A. Pearson, Esq.

The following is the first in a series of articles that will try and explain some of the pros and cons of entering into a licensing agreement in today’s entertainment industry.

As the various business models of the entertainment industry continue to reinvent themselves almost on a daily basis, one prevailing trend is the growing use of licensing.  More entertainment product is now self-produced by artists than ever before.  The “Studio System” and “Major Label” business models are quickly becoming obsolete.  It’s beyond the scope of this article to make any grand sweeping speculation as to why the industry models are changing.  Are these changes the result of the economy, backlash against the ‘old systems’, or technology changes?  The answer probably lies somewhere in the murky gray area known as “a combination of all of the above”.  The point is that change is here, and change means an influx in the use of licensing throughout the entrainment industry as the shift continues toward independent production.

Take the music industry, for example.  Under the old model, record labels hired talent evaluators to find artists, signed those artists to a recording contract, paid for the artist to record an album, created and distributed the album, and then profited off the sale of the album.  The label owned the copyright to master recordings that made up the album, and shared in the copyright of the song publishing with the songwriter.  The artist made money off of royalties paid by the label (including their advance) based on sales of the album, and on royalties paid to the songwriter by a performing rights organization (ASCAP/BMI) for use of the song.

Events: Filmmaker's Resource Sharing Group

For any current or future filmmakers out there, the Filmmaker's Resource Sharing Group is a potluck event you may be interested in. 

• WHEN:   Thursday, March 6th - 7 pm to 10 pm
• WHERE:  Metrospace Theater - 379 Highland Avenue, SF

Writers' Strike: Pt. 4 - That's a Wrap

by Howie Cockrill

After 100 days of strike, the writers and the producers have come to an agreement that will see both parties through until the next negotiation in 2011.

Both sides had to make difficult concessions, and the industry as a whole no doubt took a big hit.  The estimates range from $1.3 billion to $1.5 billion lost by the industry and dependent businesses. 

While the WGA made a number of demands throughout the course of the strike, the most ground-breaking and newsworthy were those pertaining to the writers’ share of online revenue. 

Film/TV Business: Writers' Strike Pt. 3

by Howie Cockrill

In the Part 1 and Part 2 of this article, I discussed the “who” and “what” of the current WGA strike and some of the history leading up to the current situation. 

In this article I’m going to touch on a few areas that are being affected or are affecting the WGA strike.

Copyright: The 3 "C"s - Compensation, Control & Credit

by Tony Berman

If you’ve ever been hired or hired someone to perform creative services or to create an artistic or technical work, either orally or by signing on the dotted line, this is an article you should read.

Regardless of:

• Whether the deal terms are straightforward or complex,
• Whether you’re dealing with your best friend or a faceless corporation and
• Whether the negotiating process is informal or formal –

this article will give you a FRAMEWORK for thinking about what terms are crucial to you and what is open for discussion. 

This framework is applicable to deals involving copyright, trademark, patents and publicity rights – essentially the entire spectrum of intellectual property. 

In short – if you buy, sell or trade creative services or works, and the very thought of negotiating a deal gives you a massive migraine, you need a simple way to organize the deal points in your mind. 

In addition to some aspirin, you need perspective and context.   

You need the Three C’s.

Film/TV Business: Writers' Strike Pt. 2

by Howie Cockrill

Following up on "Writers' Strike Part 1," in which I discussed the basic "who" and "what" of the current strike by the WGA against the AMPTP - this article is geared toward giving some background information to understand where the current dispute comes from.

The topics are:

• Timeline - WGA and AMPTP
• 1960 WGA Strike
• 1988 WGA Strike

Film/TV Business: Writers' Strike Pt. 1

by Howie Cockrill, Esq.

If you watch television, live in Los Angeles, read Entertainment Weekly, are in the entertainment industry or know someone who is – chances are you’ve heard that there’s a writer’s strike going on.

But who is involved and what do they want?  And, aside from some extra facial hair on our favorite actors and talk show hosts, what have the effects been?

This will be a multipart article giving a broad-brush, non-partisan view of the current writer’s strike  - essentially “Writer’s Strike 101.” 

Events: Expo for the Artist & Musician

This Saturday, September 15th, is the 8th annual Expo for the Artist & Musician - an event offering networking, free workshops, performances, exhibits and other services to the arts community and the public.

I will be on a panel with Trevor Stordahl from the Pranger Law Group entitled "Intellectual Property and Creative Licensing."  We will be discussing licensing music for films, digital music distribution (downloads and streams), traditional music distribution, copyright basics, trademarks and parties that are implicated in music licensing.

Check out the Expo website and the BEAT Law Events Calendar for more information.

I have also updated the Calendar with several other events in San Francisco, Los Angeles and New York during September & October.

Copyright: Proving Infringement

Infringement Elements

To establish infringement of copyright, plaintiff must prove:

1. plaintiff's ownership of a valid copyright and
2. defendant's copying of original elements of the copyrighted work.

Incidentally, with regard to Infringement Element 1 (plaintiff's copyright ownership)....

the copyright registration certificate, if made within 5 years after the first publication of the copyrighted work, provides prima facie evidence (i.e. evidence that is sufficient unless rebutted) with respect to plaintiff's copyright ownership.  The burden then shifts to the defendant to demonstrate why the copyright is not valid.

Film Law: Purchase of Film Rights

Hollywood released 607 movies in 2006 to the tune of 1.45 billion tickets sold for $25.8 billion in ticket sales world wide.

Yet, with an average budget of $65.8 million and average marketing and distributing costs of $34.5 million, every studio film put out last year cost over $100 million.   

It is a well established rule of thumb that a movie has to make three times its negative cost to show a profit. With those kinds of numbers in the ledgers, it is no wonder that studio executives are nervous.

Talent costs continue to rise and over the past decade writers have been asking for, and getting, multimillion dollar deals.  And perhaps the most valuable, if underrated, factor in the industry is the story itself.

Movies continue to draw on television for inspiration (e.g., Jackass, Mission Impossible, and the upcoming Simpsons movie).  Other robust sources for potential screenplays are books, plays and newspapers. Several films have also been based on video games.

Generally, however, all purchase agreements for the acquisition of motion picture and allied rights contain the same elements.