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

 
Entertainment Law Kettle Summer 2015
Entertainment Industry: A Global Enterprise                                                                             
Introduction
–          US entertainment industry (established and emerging media) is a global enterprise
o   Products include: music, films, television, literature, video games
o   Participants have also gone global
–          Globalization of music industry has led to the shaping and sharing of culture across national boundaries
 
Areas of Law
–          Contracts
–          Copyright
–          Trademark
–          Patent
–          Right of Publicity
–          Labor Law
–          Business Association/Formation
–          Property
–          Defamation
–          Administrative
–          1st Amendment
–          International Law
–          Criminal Law
 
 
Industries
–          Sports
–          Music
–          TV
–          Movies
–          Theatre
–          Internet
–          Radio
–          Games
–          Book Publishing
 
International Piracy
–          Piracy – international theft of films, televisions and music produced in US has expanded
o   Postings on the internet has no expanded making it harder for the studios
o   Microsoft & other companies who make software that allow Internet bootlegging are concerned they will be held liable as contributory infringers
 
International Legal Challenges
o   Court reasons that mere authorization of extraterritorial acts of infringement doesn’t state a claim under © act
§  Authorization “right” – doctrine of contributory infringement which requires that the authorized act itself could violate one of the exclusive rights listed in §106(a)-(5)
·         Here: its not any of the conduct found in §106 nor does it violate the section bc the illicit act occurs overseas
§  No exterritorial application
·         Not within congressional intent & although there is an interest, court cant act in a way to disrupt congress’ efforts to secure a more stable int’l IP regime à didn’t apply © law
o   Court makes it a requirement that there exist a primary infringement in order to be liable for contributory infringement
–          IFPI à international federal phonographic industry
 
 
ENTERTAINMENT PROCESS: IT ALL BEGINS W/ AN IDEA
 
GOVERNING LAW: CL/STATE
 
IDEA PROTECTION: in order for an idea to be protectable, an idea must be:
–          (1) Idea must be novel
o    Objective Novelty
§  Idea must be original to P
§  Idea must be innovative or original in nature;
§  Idea must be both original to the P and innovative
§  Novelty to the buyer
·         Even if the public knows about it but the buyer doesn’t will still be novel
–          (2) Idea must be in Concrete Form –
o   Idea must be capable of being reduced to writing or used
o   Idea must be reduced to a tangible form – committed to writing or incorporated into a tangible product
o   Must be fully developed and flushed out  – cant be an abstract idea
o   Needs to be able to be easily understood by people
–          (3) D makes use of the idea
–          (4) P has to have expectation $$ for the idea from D à theories of recovery
 
*** For professional submitters usually don’t need it to be in writing ***
–          Goes to the concrete form portion
 
THEORIES OF RECOVERY:
–          Express Contract – best way to protect an idea
o   K exists – recipient of the idea expressly promised to pay of the idea submission if he used it
o   Lower standard of novelty – bc novelty is the consideration
–          Implied Contract – requires some novelty
o   Recipient impliedly promised to pay
o   Courts will look to see whether a K was intended to be made even tho it wasn’t expressly stated
o   Will consider:
§  Whether the D has paid for such ideas in the past
§  Whether the P has customarily been paid for his ideas
§  Whether there is an industry custom for paying for such ideas
–          Quasi Contract / Unjust Enrichment – requires highest level of novelty
o   Did D receive a benefit for which equity and justice require him to pay
o   Intent of the party isn’t relevant
–          Breach of Confidentiality
o   No novelty required
o   Typically mandated to be waived before recipient will even consider a submission
o   P has burden of showing existence of a confidential relationship
–          Tort of Conversion à D took P property 
o   Extreme and rarely used; idea isn’t treated as property; would require a higher standard
o   Tough time treating idea as property so wouldn’t really bring a tort conversion claim
 
DEFENSES:
–          Independent Development
–          Idea wasn’t novel or concrete
–          P signed a non-confidential disclosure; waiver
–          Even w/o contract terms laid out à bc breach of fiduciary duty could be enough (confidential relationship)
 
 
 
 
FILMMAKING INTRODUCTION
–          A complex technical and emotional process; its art; its cinema
 
FILMMAKING PROCESS:
–          Preproduction process
o   Pitch & green light
§  Film process begins w/ a pitch à producers have 3 min to pitch their ideas & writers receive 45 min
·         Writers: should be able to give an outline of the story (beginning, middle & end); provide characters & story arcs (how story develops & overall plot); might turn over entire script if there’s sufficient interest
·         Producers prepare a treatment à 1-2pgs to several dozen pages; provides an overview of the film, including plotlines, essential characters, sometimes locations & settings and what it would take to make the movie work
o   Purpose of treatment: give the reader a sense of how project might devel

t Matter
Copyright subsists “in any original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
 
17 U.S.C. § 102(b):  Not Copyrightable Subject Matter
“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless or the form in which it is described, explained, illustrated, or embodied in such work.”
 
17 U.S.C. § 102(a): Works of Authorship
Literary works; Musical works, including any accompanying words; Dramatic works, including any accompanying music; Pantomimes and choreographic works; Pictorial, graphic, and sculptural works; Sound recordings (phonorecords) (2/15/72); Architectural works (as of Dec. 1990)
 
17 U.S.C. § 106: Rights of Owner à Bundle of Rights
1)      Reproduce the work
2)      Prepare derivative works
3)      Distribute copies or phonorecords of the work to the public
4)      Publicly perform the work (does not apply to pictorial, graphic and sculptural works, architectural works, or sound recordings)
5)      Publicly display the work (does not apply to architectural works and sound recordings)
6)      In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
 
17 U.S.C. § 107: “Fair Use” Doctrine
“for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.”
COURTS MUST CONSIDER:
1)      Purpose and character of the use
2)      The nature of the copyrighted work
3)      The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4)      The effect of the use on the potential market for or value of the copyrighted work.
 
17 U.S.C. § 109(a): First Sale Doctrine
17 U.S.C. § 109(b): Exceptions: can’t rent records or computer programs
17 U.S.C. § 110: Allows “Scene Skipping” technology (2005)
17 U.S.C. § 110(5): “Home-Style-Receiver Exemption” also Point of Sale Exceptions
 
17 U.S.C. § 114: Adaptation of Sound Recordings
Only a violation when the defendant actually mechanically recaptures or “lifts” the sound and them mixes with others.