Entertainment Law Asked & Answered Gordon Firemark

The Latest episode of my Entertainment Law podcast, Entertainment Law Update, is now available for your enjoyment. Listen here, or subscribe and download in your favorite podcast listening app.  Show notes are located at www.entertainmentlawupdate.com/141















PUBLIC DOMAIN DAY 2022







EMERGING SPLIT OF AUTHORITY REGARDING ORIGINALITY DETERMINATIONS







DISNEY STILL HAS TO LITIGATE OVER ORIGINALITY OF JACK SPARROW







THE  “DARK TOWER” CASE – CERT DENIED







ERIC CLAPTON GOES AFTER BOOTLEG SALE







NEVERMIND BABY COMES BACK WITH AMENDED COMPLAINT







SPOTIFY WINS TRADEMARK LITIGATION AGAINST POTIFY







UPDATE: MUSICOLOGISTS AROUND THE WORLD SUPPORT KATY PERRY IN LITIGATION







FAT LEONARD PODCASTERS ORDERED TO HAND OVER RECORDINGS







Suzanne Wilson Named General Counsel of U.S. Copyright Office

The Latest episode of my Entertainment Law podcast, Entertainment Law Update, is now available for your enjoyment. Listen here, or subscribe and download in your favorite podcast listening app.  Show notes are located at www.entertainmentlawupdate.com/125







* AMC TO TAKE OVER SHUTTERED THEATERS * FALL OUT FROM CONSENT DECREES CONTINUES IN APPELLATE RULINGCentury Theater Owner’s Negotiation Tactics Approved.* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE* JERSEY BOYS-NEW STANDARD FOR NON-FICTION CORBELLO V VALLI (USCA, 9th Circuit)* TONY BASIL LOSES AGAINST AGENTS DUE TO COPYRIGHT PREEMPTION* CHICK-FIL-A LOGO DENIED COPYRIGHT REGISTRATION* VID ANGEL SETTLES (quick take-1 paragraph) (CAN COME OUT OF BANKRUPTCY)* RAZORCREST LEGO SET CHANGES NAME DUE TO TRADEMARK* SOCIAL MEDIA SERVICE APPROVED IN TEXAS * CALIFORNIA PASSED AMENDMENT TO AB5

The Latest episode of my Entertainment Law podcast, Entertainment Law Update, is now available for your enjoyment. Listen here, or subscribe and download in your favorite podcast listening app.  Show notes are located at www.entertainmentlawupdate.com/124







* OLIVIA DE HAVILLAND LEGAL OBITUARY * PARAMOUNT CONSENT DECREES ENDED* WAITE V UMG RECORDINGS (USDC, E.D. New York)* MANGO V. BUZZFEED-LACK OF KNOWLEDGE OVER POTENTIAL FUTURE INFRINGEMENTS ISN’T A RELEVANT ISSUE* GOOGLE SUCCESSFULLY DEFENDS AGAINST INFRINGEMENT LAWSUIT OVER LYRICS* SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF KINGS* 50 Cent vs. Rick Ross – Connecticut Common Law claim* ACTRESS WINS FAIR USE LAWSUIT AGAINST DIRECTOR FOR DEMO REEL* FRANKENSTEIN OF FAIR USE IN THE METROPOLITAN MUSEUM* MARANO V METROPOLITAN MUSEUM OF ART (USDC, S.D. New York)+* SHAPE OF WATER APPEAL RESULT LEADS TO  RESURRECTION OF PIRATES OF THE CARIBBEAN SUIT* *IS NINTH CIRCUIT BEING INDECISIVE?* Pirates of the Caribbean Lawsuit Revived by the Ninth Circuit* AND NOW WE HAVE THE FOLLOWING PETITIONS FOR CERT IN STAIRWAY TO HEAVEN AND INSIDE OUT

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Tom has a terrific question about recounting a true-crime story from long ago…

Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.



OK, here's Tom's question:

“I am finishing my first draft on a true story about the murders of four of my family members 66 years ago and the transcripts of the trial cannot be found in Jackson, Mississippi. Can I fictionalize the trial / Jury Room / Names of unknown (and probably not alive), activities and dialogue in my inspired by a true story. The outcome of the Trial is all i can find in a 1950 Life Magazine Article with pictures. This is a forgotten historical event and will add a refresher chapter to our national history.”

Well, this is a little sticky… I’d counsel caution when fictionalizing things involving real people and events.  At very least, be sure that you’re not making false statements about living people that would damage their reputations. (That’s defamation).  If you recreate a scene, but inadvertently get some facts wrong, but there’s no HARM, you’re probably OK.  But incorrectly saying a person was on the jury, when he or she wasn't, or vice-versa could be troublesome. Especially if the story suggests some wrongdoing or error by the Jury.

Of course, anyone can sue anybody over anything at all, so you want to provide them with as little ammunition as possible by taking whatever steps you can to assure that the account you present is as truthful as it can be. Document your sources for everything that you can. The best practice for this kind of thing is to have 2 or 3 sources for each fact.

66 years ago is a good long time, but some folks may still be alive. I’d suggest tracking them down and interviewing them. Get them to cooperate, if possible…

When you get into using people's names, likenesses, and personas, you're talking about either Rights of Publicity or Rights of Privacy.

The Right of Publicity is recognized in about half of the US States, as well as some foreign countries. This is the right of a person to control any kind of commercial uses of his or her name, likeness or persona. In some places, that even covers look-alike and sound-alike performances.

But remember that I said “commercial” uses. Here, you're talking about telling a story… It's a narrative, and it's based on true events. So, there's an element of newsworthiness, and a public interest in this material being given some exposure. And… You're not selling a product or service or suggesting that the people in question are endorsing anything… So, the right of publicity isn't likely to be an issue…

But rights of privacy might be a bit trickier. For example, if a person was, 66 years ago, a notorious figure in the community, but has since led a quiet, respectable life. Retelling their story might constitute an invasion of their privacy, under a theory called “Public Disclosure of Private, Embarrassing Facts”. Generally speaking, these kinds of cases come down to whether a reasonable person would find the re-hashing of things “highly offensive” after so many years. So, I'd be cautious here.

You also want to make sure you're not presenting people in a false light… again, in a way that would be highly offensive to the average reasonable member of the public.

But, bottom line, finish writing the script… Then, get someone objective to go through and highlight every situation where someone’s reputation might be injured, or one of these other issues might be involved. Then determine whether that person is still living, and whether that reputation is really in jeopardy, and if so, get them to cooperate, sign a life-rights release, or something.

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Scott asks a tricky question about music rights for video of a stage production…

Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.



 

OK, here's what Scott wrote in…

Q: I create and tour original visual theater. We tour internationally and in every contract the producer or venue pays the ASCAP or other performing rights society fee for the music that is used in our performances.

However if one were to record a performance and make it available online for sale who would the international fees be paid to for the video rights to the 20+ snippets of music in the performance? And how would one go about getting the rights to use said snippets of music?

First off, I have to say that, based on what he's described, I’m not 100% certain that the venues paying ASCAP and similar types of licenses is enough to get the rights for what they're doing. You see, those Performing Rights Organizations only license so-called “small” performing rights (concerts, coffee-houses, radio airplay, etc.), and not the “Grand” rights that are involved when music is an integral part of a stage production, where the music helps move the storyline and characters forward. It’s possible that they're in small-rights territory, if this show is fairly sparse on plot, storyline, costumes, lights, etc., but it’s also possible that they really need grand rights for what they're doing.

Grand Rights licenses are negotiated directly with the music publishers who own / administer the songs.

But that’s not the question Scott asked.

To use the music in video, you also need to directly license each piece of music from the publishers that own them. The license needed is called a “synchronization” license (which authorizes you to synchronize the song with pictures and dialogue, etc.)

AND, if you’re using existing recordings of the music, you also need a “master use” license from the record company that owns the recording you’re using.

To add to the hassle, many songs are administered by multiple publishers, (each songwriter’s interest might be handled by a different company)… So you might have to chase down 3 or more publishers for a single song.

These licenses are not automatically approved. Publishers usually have to secure approval from the songwriters themselves before licensing this kind of thing, (the songwriters or their heirs…

Sometimes have weird views about such stuff) so the publisher will ask for lots of information about the intended use… Context, script pages where the song appears, duration of the piece used, nature of the use (background, visual-vocal, etc.)…

And then they’ll quote a price for the use. Licenses are usually done on a “most favored nations” basis, so the highest quote sets the bar for all the music…

This can be a tremendously time-consuming process, so you should leave plenty of time.

The process:

1. Research to identify who holds the rights to each song

2. Prepare and send a quote-request (sometimes a form, sometimes just a letter asking for the rights needed) to each rights-holder.

3. Wait for approval and quote

4. Sign licensed pay fees/royalties

5. Use the music

But here's the other wrinkle… because you’re now revealing the nature of the show to these publishers, they too, will be asking the question whether you’re in “Grand Rights” territory, or whether the ASCAP/BMI rights are sufficient for the live aspect of what you’re doing.

And that's it for this session of Asked and Answered.

Do you have a question I can answer here? Visit firemark.com/questions

See you again soon.

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TRANSCRIPT:

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Music Rights – How do you get permission to use a song in your video or film?

Hi, I'm Gordon Firemark, and this is Asked and Answered, where I answer common entertainment law questions, so you can take your entertainment industry career and business, or just your hobby, to the next level.



So, in a previous Asked and Answered session, I talked about fans making cover videos and posting them on Youtube and Facebook. And I explained that, when you include a musical composition (even your own recording of the song) in a video or film, you need special permission, called a Synchronization or Sync License from the owners of the copyright in that song.

So here's how you get that license.

It's actually pretty simple, conceptually.

You find out who owns the copyright,

You submit a request

You wait for an approval, called a “quote”

You agree to pay the required license fee in a written contract prepared by the copyright owner

And you're set.

In practice, however this is a bit more complicated.

That's because lots of songs are written by multiple songwriters. Collaborators. And, each of those songwriters might be represented by a different publishing company. And you need permission from all of them.

So, you've got to track down all those publishers so you can ask.

Now, a good place to start this is by looking at the liner notes for a recording of the song you're using. Oh, wait, this is the 21st century, and you're listening to an mp3 that doesn't have liner notes, or on a streaming service… Again no liner notes.

So, first check out the source where you got the music in question, and see if it lists the names of the songwriters and their publishers. Then google those companies. OR, head over to ASCAP.com and BMI.com, and search their repertoires.

Then, contact each publisher, and request the permission for the use you have in mind.

Then you wait for the quote, and then the license agreement…. Which you have to read, and understand, and comply with its terms…

And that's how you clear music rights.

More work than you thought, huh?

This is why TV shows and Film Production Companies have staffers who do this stuff for them. Most shows and films have a music supervisor who helps find the music, and identifies the owners, and then a lawyer or paralegal or other executive will handle the actual licensing.

For a film project, or a TV show, that makes sense, But for your typical YouTube or Facebook video… It's probably overkill. Maybe you'd be better off using some original music you wrote, or a track from a royalty-free source.

That's it for this session of Asked and Answered. Submit your entertainment law questions at http://firemark.com/questions.

See you next time.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.