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Entertainment Law
Rutgers University, Newark School of Law
Kettle, John R.

 
Entertainment Law & Business – Kettle (S14)
 
 
I.            Definitions:
a.       Pitch Meeting:  The routine presentation of a project by Agents, Managers, Actors or Producers to the people with financial resources who can “green light” the film. Can pitch idea, the story, plotline or even who will star or direct the film
                                                  i.      Example: Blaustein
                                                ii.      Producers will usually get only 3 minutes to pitch; writers get approximately 45 minutes.
b.      Green Light: term that refers to the ability of someone with power at the studio to give the final approval and go-ahead to send the movie into production
c.       Treatment: A short written narrative which provides an overview of the film, including plotlines, essential characters, sometimes locations and setting, sample dialogue, and what it would take to make the movie work.
                                                  i.      It is intended to give the reader a sense of how the project might develop on screen. 
d.      Pre-Production Process:  Preparing and submitting scripts, hiring talent and the production crew, scouting locations, and obtaining financing.
e.       Production: principal photography begins and movie is shot
f.       Post-Production: making theater/TV ready – editing & Revisions, Putting together all pieces of the film, incl. dialogue and soundtracks
g.      Turnaround Deals
                                                  i.      Once a screenplay has been developed and a studio has purchased the script and moved forward with development but now it wants to stop → now the producer can go to another studio and make the film
1.      The rights to the project are sold to another studio #2, in exchange for the cost of development plus interest
2.      Gives producer the right to take the project, call it his own, and try to set it up at another studio or 3rd party financing
h.      Cover: A Document in which the story is broken down, synopsized and explained
                                                  i.      Document permits reader to obtain a quick understand of the story
                                                ii.      More like an outline, shorter that treatment
i.        Scenes a faire – Incidents or plots that ordinarily result from a common theme or setting and are not protectable under copyright laws.
j.        Option Agreements: Should include…
                                                  i.      Additional Compensation for extending option
                                                ii.      Procedure for acting on option (time frame + consideration)
II.            Idea Submission: Pitches and Treatments
a.       Law of Ideas: grants creator of an idea the right to obtain fair compensation from those who benefit directly from his idea
                                                  i.      Conveyance of an idea can constitute valuable consideration and can be bargained for before being disclosed to a purchaser. But once disclosed to the buyer, it belongs to him and he may work and use as he (buyer) sees fit.
                                                ii.      If an idea has been conveyed with the EXPECTATION by the idea creator/seller that he will be paid if the idea is used, then there is no reason why the buyer (producer) who has benefited from the conveyance of the idea and finds it valuable and profits from the idea, should not promise to pay a reasonable compensation for the idea, even though he is not legally obligated to do so at that time.
                                              iii.      Idea Submission protections are a matter of state law, not federal copyright.
b.      Industry Custom – The Handshake Deal:  Standard Contract law does not apply in film – much is ruled by custom, so that oral contracts may not be as problematic as under reg. contract principles.
                                                  i.      Desny v. Wilder / Stanley v. CBS (1950s):  Landmark idea submission cases in CA.  Both hold that ideas are not protected under copyright, but they can be protected by contract.
1.      Densy is still cited and the case to look to for ideas and implied contracts
                                                ii.      Contracts can be implied in fact, so if the producer obligates himself for the disclosure of the idea, then he should be held to that promise.
                                              iii.      Blaustein v. Burton (1970): Plaintiff, producer, pitched idea based on Taming of the Shrew, to star Defendants and their agents, received oral ok from Burton.  Plaintiff had specific stars in mind, specific actors, specific plotlines etc. Defendant ended up producing Kiss Me Kate and not his movie. While there was no explicit written contract, there was an oral agreement to make the movie. Plaintiff sued, claimed he is entitled to compensation by reason of D’s use of his IDEA which he disclosed to them (as well as per quasi contract and breach of confidential relationship). Plaintiff’s idea was protected by contract, even though it was only an orally implied contract. Both parties’ conduct proves intent to contract and therefore Defendants must pay Plaintiff for use of his idea.
c.       Protection of Characters
                                                  i.      Literary characters are difficult to protect as opposed to cartoon characters, because you are dealing with a personality.
1.      Anderson v Sylvester Stallone (1989) – Plaintiff claims that Stallone ripped off his idea for Rocky 4. On May 1982, Defendant presented rough ideas for Rocky 4. On June 1982, Plaintiff writes 31 page treatment for Rocky 4, including plots and characters; gets meeting with MGM, presents it. On October 1984, Defendant writes script; on November 1985, Rocky 4 is released. Plaintiff sued claiming that Defendant stole his idea for the movie; took it directly from his treatment. Defendant asserted that Plaintiff’s story infringed his copyright and ripped off his characters. The characters from Rocky were so developed and detailed that they were protected by copyright. Plaintiff’s work was found to be an unauthorized derivative work that infringed upon Defendant’s copyright. Plaintiff violated Defendant’s right to prepare derivative work/”adaptation right”. Because the sequel is a derivative work, it infringed Defendant’s copyright.
                                                ii.      Cartoon characters are protectable in of themselves because they are protected visual works.
1.      Parody is a complete defense to fair use of copyrighted material.
d.      “Based Upon”? – Issues of Copying
                                                  i.      “Based Upon” has no industry definition, but the Buchwald case found that the ‘based upon’ standard was centered on (1) access to the work and (2) a showing of similarity between the two works.
1.      Similarity: Can be found if many general ideas are used together. However, even if the similar material is quantitatively small, if it is qualitatively important the trier of fact may properly find substantial similarity.
2.      Buchwald v. Paramount Pictures (1990): Plaintiff pitched and obtained K for his treatment of “King for a Day.” Defendant developed a script, but later abandoned the idea. Defendant placed KFAD in turnaround. On May 1986, P optioned his treatment KFAD to Warner Bros. Warner Bros cancels project after it discovered D was shooting “Coming to America” Plaintiff and Defendant’s agreement stated that Plaintiff would get certain contingent consideration provided that D produces a film “based upon” Plaintiff’s treatment. The court found that the threshold for substantial similarity was lowered as there is more access to the prior work because there is a written contract and a written submission. In the end, Plaintiff wins and was entitled to damages for Defendant’s work that is based upon Plaintiff’s treatment.
e.       Unsolicited Scripts
                                                  i.      Studios receive tons of unsolicited scripts; those writers cannot try and assert and idea claim/ right to compensation if a studio happens to make a similar movie;
1.      In order to protect themselves, studios do not accept unsolicited materials; they are not even looked at unless there is manager or agent (so as not to raise any claims anywhere up the chain that the artist was taken advantage of).
2.      Barry J. Spinello v. Amblin Entertainment (1994): Plaintiff sent Defendant script about a movie with toys and it was ultimately rejected. Defendant later made “Toy Soldiers” movie. Plaintiff sued alleging that Defendant appropriated his ideas and made them into a movie. Defendant moved to compel arbitration per agreement that Plaintiff signed; Plaintiff claimed it was unconscionable and thus unenforceable as an adhesion contract, and the court rejected that claim. Plaintiff was someone with 20 years experience in the industry. He had opportunities to review the agreement and had his lawyer review it, so he could have had the arbitration clause removed. He had opportunity to pursue business elsewhere too, as he sent script all around town.

t of California in his action alleging breach of contract under California law and violation of his copyright in ‘The Shell Game’, a screenplay. The alleged breach was Miramax’s making of ‘Rounders’. The court found that the district court erred in holding the claim was preempted by the Copyright Act. The dispositive issue was whether the rights protected by the claim were equivalent to the rights protected by copyright. Prior decisions of the instant court supported holding the implied promise to pay required by the contract claim was an “extra element” for preemption purposes. The Copyright Act did not preempt the individual’s claim for breach of an implied-in-fact contract, because it alleged an extra element that transformed the action from one arising under the ambit of the federal statute to one sounding in contract.
 
III. Copyrights
 
I.            Background [17 U.S.C. §§ 101-805, §§ 1001-1010] a.       Definition: 17 U.S.C. § 102(a) – copyright law applies to any work that meets the three requirements:
                                                  i.      Original
                                                ii.      Work of Authorship
                                              iii.      Fixed in a Tangible Medium of Expression
                                              iv.      For More than a Transitory Period of Time
b.      Original: it means original to the author, not original in general. Thus, if two authors wrote the same thing, as long as it was original to each of them (meaning they didn’t copy from each other), both works will be copyrightable.
c.       If you publish a work, you have the rights to send it to the library of Congress. There is a mandatory deposit: need to give a copy of the article to the library of congress or be fined. This is satisfied when you register the work.
II.            What is and isn’t Copyrightable:
a.       Three requirements for an item to be copyrightable:
                                                  i.      Copyrightable Subject Matter
                                                ii.      Fixation in a tangible medium of expression
1.      Physical rendering of the work
2.      Material object
3.      Paper
4.      Magnetic Tape
5.      Marble Block
                                              iii.      Work must originate with the author
1.      Copyright claimant must not have copied the work from someone else.
b.      17 U.S.C. § 101 – Definitions: defines literary works, motion pictures and audiovisual works, musical works, dramatic works, pantomime and choreographic works, pictorial, graphic and sculptural works
c.       17 U.S.C. § 101 – Requirement of Fixation: a work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
d.      17 U.S.C. § 102(a) – Copyrightable Subject Matter: literary works, musical works, dramatic works, pantomimes & choreographic works [can be fixed by notation, video, or recording], pictorial, graphic & sculptural works, motion pictures & other audiovisual works, sound recordings, architectural works.
e.       17 U.S.C. § 102(b) – Non-copyrightable Subject Matter: idea, procedure, process, system, method of operation, concept, principle, discovery, titles [can get protection only when it’s in a series such as in a book or show], short phrases, slogans [are potentially trademarkable] f.       Other Non-copyrightable Subject Matter: blank forms, merger, unlawful or obscene content, works of the federal government