I was recently made aware by a trusted source in the fashion industry that the clothing retailer Forever 21 had placed an artist's artwork on clothing without the artists permission and without compensation to the artist.
So you may be asking yourself, but Ted, you are always talking about how designs are protected by copyright. How could this be?
Well, in addition to its history of labor violations, Forever 21 has been sued more than 50 times for allegedly stealing the work of other designers and passing it off as their own. Despite this long legal history, Forever 21 continues to thrive.
The matter that recently came to my attention is that the artwork of an artist at http://textilenerd.tumblr.com was appropriated by Forever 21 without permission or compensation. See the original link here.
Left: Original Artist's work. Right: Forever 21.
Consequently, being the lawyer I am, I started researching the issue. What I discovered was a company that is no friend to fashion designers.
Left: An Anna Sui dress on the runway. Right: Forever 21's version.
Apparently, Sui was copied by Forever 21 more than 20 times before she took legal action.
Forever 21 has copied everyone, from big brands like Anna Sui and Diane von Furstenberg...
If the vitality of film banking reflects the health of the independent production sector, then there are plenty of encouraging signs despite the ongoing turmoil in the global financial system.
After the shake-out following the credit crunch in 2008, the stalwart lenders who stuck with indie film through thick and thin, such as Union Bank of California, Comerica and City National Bank, are reaping the reward with expansion in their business.
A number of new entrants are also emerging, including National Bank of Canada, East West Bank and OneWest Bank.
At the same time, Wall Street's capital markets are waking up again to the opportunities offered in the more risky but also more rewarding areas of gap and mezzanine finance.
"It's an optimistic time now, and will become more optimistic in the next year," says Myles Nestel, the former banker who recently launched a sales and financing venture called the Solution Entertainment Group in partnership with veteran sales agent Lisa Wilson.
Union Bank, the market leader in single-picture financing, is expanding its entertainment team under senior VP Bryan LaCour after a record year in 2011, when it doubled its deal volume to $800 million from its previous average of $350 million-$400...
Your work is copyrighted from the moment you create it. You cannot choose to have something copyrighted.
The issue is whether you will want to pursue a breach of that copyright. If someone copies your work... you can either ignore it or you can try to take action. In that case we are talking about registration of your copyright. Copyright infringement lawsuits without registration often prove to be cost prohibitive. However, with registration comes access to statutory damages of as much as $150,000 per violation, plus an award of costs and attorney fees.
As to the question of why you would want to copyright your work... there are various reasons. The most important two are:
1. Financial - If the work makes money, you may be entitled some of it (including preventing others from unauthorized duplication of your work).
2. Creative - You will want to be properly acknowledged for your work. It could help your reputation and/or your success for future work in the industry.
As with all legal issues touched upon in this blog, this information should be used as a guide only. You should always talk to a qualified entertainment lawyer regarding any legal issue.
Generally speaking, you can refer to trademarks by name without permission. The only exception would be using someone else's trademark in what amounts to a competitive product. For example, you couldn't have a superhero named "Spiderman" or a spaceship named "Enterprise" (both trademarks), although you could, for example, have a character look around a high-tech building and say, "What the hell is this, the Starship Enterprise?" or sarcastically say to someone hanging from the side of a building, "Who do you think you are, Spiderman?"
With regards to having a character sing a few lines from a copyrighted song, you will need obtain clearance to perform the said piece from your country's music clearance organisation (ASCAP, BMI, SEASAC, etc). Depending on the profile of the music, this may or may not attract a fee. Generally if you are not using an original recording (i.e. having the character sing the lines instead of the original artist) clearance is a lot cheaper. Again, contact a lawyer, like me.
Unless you know for sure that the clip showing on the TV is in the public domain, you should get copyright clearance to use it. Otherwise you may find that the shot has to be removed from your final film before it can be shown publicly, or worst, you get a letter from the copyright owner demanding a license fee plus damages for the unauthorized use of the their material.
In some cases, particularly with documentary films, it may be possible to argue that the clip on a television constitutes "fair use" (as defined in copyright law). However, to be successful in this defense the clip needs to be incidental to the shot. You still may end up in court having to defend your assertion of fair use, but if the clip isn't featured or favored in your shot, you'll at least have a chance of convincing the judge that fair use applies.
But the upshot is, if you have any control over the scene whatsoever, turn off the television or replace the content with something, which either a) you have the rights to, or b) is in the public domain. If that's not possible, you should seek to clear the clip, or don't use the shot.
A film production company is no different from any other type of company, so the same rules and processes apply. Starting any new business requires a good deal of research and planning, particularly if you are intending to raise money from third-party investors to help fund the venture.
The first thing that most people do before starting a new business is write a business plan. A business plan is a document, which outlines how the business will be set up, how it will operate, and how it will make money. As most business plans are written for people who may not necessarily have first hand knowledge of the industry in which the business is going to operate, the plan normally must also include an overview of the market and information on how the business is going to compete effectively in that market. All information presented in a business plan should be researched and supported with verifiable facts. Itâs not a good idea to use anecdotal or made-up information in a business plan, at best it just means you are deluding yourself about the viability of your business idea; at worst, getting investors on board with inaccurate information could land you in hot water further down the road.
Business plan writing is a bit of an art...
Getting investors on board your film is perhaps one of the most difficult aspects of the filmmaking process, and also one that can be fraught with many risks. Indie filmmaking lore is full of stories of filmmakers who begged, borrowed, or proverbially stole the money to make their films, stories, which of course end in box-office gold or Sundance glory. But for every âBrothers McMullenâ, âEl Mariachiâ, âClerksâ, or âBlair Witch Projectâ, there are at least 10 miserable failures; stories of filmmakers who poured heart, soul, and comparatively plenty of cash only to be left with an expensive tin of celluloid that nobody wants.
Placing money in independent films is a risky investment. So when you are looking to get investors on board your project (particularly people who are outside your circle of family and friends) itâs essential that you take a professional approach and set realistic expectations for the potential risks and rewards. The best way to do this is to prepare a business plan or prospectus which outlines what is required to produce the film and how you are going to generate enough money from it to repay your investors (hopefully with a little profit too).
When preparing any kind of business plan, itâs essential that...
There's no doubt about it: Music Rights can be a confusing and complex subject. To further complicate matters, determining which rights, clearances and licenses that you - the filmmaker - need to acquire depends upon the source of the music used.
There are really only two sources for music used in film:
Â Original music written specifically for your film
Â Pre-existing music
Original music can be either underscore or songs. Pre-existing music can include both popular songs or "canned" library music.
Copyright law is complex. As a composer or songwriter [or filmmaker] you should have at least a basic understanding of copyright law and know when to contact us.
A copyright refers ownership. It is a property right comprised of a set of legally enforceable privileges granted by law to creators of artistic works such as scripts, songs and recordings.
Â Musical Works - including songs with lyrics
Â Sound Recording
Musical Works - In the case of songs it encompasses the words and music. As with a script or any other intellectual property, the creator of a work automatically owns all copyrights in that work. However, these rights are transferable. The copyright is generally divided into two equal halves: one-half owned by...
So you've read a book/play/article/something that you reckon will make an unreal movie. You're a script writer of sorts so you think, "yep. I'm gonna write this sucker." Where do you go from there?
The most important first step you should take is finding out whether the motion picture and associated rights are available for the work you wish to adapt. FIND THIS OUT BEFORE YOU START WRITING as you may just be wasting your time if you go ahead and write a killer screenplay, only to find that Spielberg's company just optioned the material for half a million dollars. There are thousands of other reasons that may prevent you from getting the rights to a work so you must always check first if you are serious about the project.
Finding out if the rights are available can either be a piece of cake or a monstrous task of seeming impossibility. The easiest way for published works is to get in contact with the author (assuming they're still alive). This can be done through a number of ways.
1) writing to the author's fan club address;
2) sending a letter to the author care of the publisher of the book;
3) finding out who the author's agent is (many reference books exist with this information) and asking them. Regardless of the method, it...
Under an international copywriter treaty known as the Berne Convention for Protection of Literary and Artistic Works of 1889 (as revised), your script is automatically copyrighted as soon as you write it and signatory countries to are obligated by law to protect this copyright. To indicate copyright ownership of a work, you should place the copyright symbol (Â) and year of claim along with your name on the front of the script. For example:
Â 2003, John Smith.
In the instance where you feel your copyright has been infringed by someone else, the problem isn't so much about whether your work is copyright or not, rather itâs about proving that you created the work (and therefore owned the copyright in it) prior to a certain date. So how do you prove you owned copyright prior to a certain date?
In the past it has been quite common for less-learned people (and sometimes companies) to recommend that you mail yourself a copy of your script as a way to protect your copyright. The idea goes that when you receive your script back you don't open it, and then you are able to use the postmarked date as proof that the work existed prior to a certain date. Unfortunately this is a fallacy, as it's extremely unlikely such an argument will stand...