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142 Cards in this Set

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determines the criteria which makes a film rated for general audience viewing

Motion Picture Association of America

Holding of Miramax Films V MPAA NY 1990

all ideas with the slightest social importance even hateful ones have protection of first amendment

Holding of Borger by Borger v Biscigilia Wisconsin

schools have discretion to censor the environment and claims of constitutional violation must meet a high threshold. School acted reasonably to ban all R rated films and that is all that is necessary

Holding of Lawson v United States DC

right to silence may be abridged by the government’s right to inquire in the interest of public good/safety if the inquiry is carried out by a constitutionally created valid governmental entity

What is an unconscionable contract?

In the entertainment industry it does not exist

What is the primary difference between the 2nd NY and 9th CA districts with regards to entertainment law?

NY courts favor corporations/managers and CA courts favor artists

When are sequences of music protected by copyright? (see Newton v Diamond)

Short sequences of music may be protected by copyright if the sequences accompany lyric, if sequence is at the heart of the musical composition, or sequences and lyrics that were repetitive or sequences based upon analyses of both the written composition and sound recording.

What is the statute of limitations on copyright infringement?

As per Morrill v Smashing Pumpkins Copyright statute of limitations is three years from when infringement began.

What is a joint work?

one where there are 2 or more authors and the authors must intend that their contributions be merged into inseperable or interdependent parts of a whole.

Who holds the copyright in a sound recording?

In the case of a sound recording absent an employment relationship or express assignment of copyright thecopyright for the sound record will be either exclusively in the performingartists or a joint ownership between the producer and the performing artists.

5 tests that show likelihood of confusion to public

Parody – the level of which is needed to use the name or mark for Parody without taking too much from original


Similarity of Marks – comparison of the two marks in appearance, sound and meaning. Similarity of products and services – more similar the greater the likelihood of confusion A are the products similar enough to cause confusion as to source or affiliation


B is the alleged infringer in a market into which the mark holder would naturally expand into


The defendants intent- it is not necessary to a finding of confusion but here the intent would be to confuse the public


Actual confusion – evidence of actual confusion is notnecessary to a finding of confusion but is the best evidence

nominative fair use defense

Commercial users are entitled to this defense provided: 1 must be one not readily identifiable without use of trademark


2 only so much of the mark or marks may be used as is reasonably necessary to identify the product or service


3 the user must do nothing that would in conjunction with the mark suggest sponsorship or endorsement by the trademark holder

Right of publicity

artist controls anything about them as an artist. Right of publicity provides protection from unauthorized use of celebrity likenesses. Often referred to as the fourth branch of the privacy tort and embodies a right to control the use of one’s identity for commercial purposes.

When can trademark owners enjoin others?

if that use is likely to confuse the consumers as to the source of the good of service

Holding of Cruce v Kurnt

If client believes you are the lawyer than you are the lawyer regardless of your beliefs and you may become liable for malpractice.

Did the 1909 Copyright act cover sound?

No,1909 copyright act did not apply to sound recordings per se

What length of time did the 1909 Copyright act protect works?

1909 Copyright act properly recorded artistic work. Works receives copyright protections for 28 years from the date of the first publication and the owner may renew for an additional 28 year period

Describe the protection for an unpublished work.

An unpublished work was protected by the states common copyright law until it was published or until it received protection under the Federal copyright scheme. If a work is published and not placed under Federal copyright is was injected irrevocably into the public domain.

Preponderance of evidence standard is

just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true.

Lanham Act definition

The Lanham Act of 1946, also known as the Trademark Act (15 U.S.C.A. § 1051 et seq., ch. 540, 60 Stat. 427 [1988 & Supp. V 1993]), is a federal statute that regulates the use of Trademarks in commercial activity.

Trademark definition

Trademarks are distinctive pictures, words, and other symbols or devices used by businesses to identify their goods and services.

Lanham act purpose

The Lanham Act gives trademark users exclusive rights to their marks,thereby protecting the time and money invested in those marks. The act also serves to reduce consumer confusion in the identification of goods and services.

Responsibilities for trademark holders

You have to use it and you have to police it or you will lose your trademark.

How do you resolve trademark violations with joint owners?

endeavors where prior ownership by one of several claimants cannot be established the legal question becomes which party controls or determines the nature and quality of the goods which have been marketed under the mark in question

Is Public Association with a name dispositive in determining who owns it?

No Public association of an individual with a name is not determinative in who owns the mark but it is crucial in determining what the mark has come to identify. This is done with a totality of the evidence standard.

How is ownership of a mark determined?

ownership of a mark is established by priority of appropriation. Priority is established not by conception but by bona fideusage. The usage must be deliberate and continuous and the use must beconsistent with a present plan of commercial exploitation.

Where is minimum compensation required?

All CA based recording contracts must contain a minimum compensation clause in order for the label to enforce the contract in equity. If the artist does not make the minimum amount of money they are free from contract.

Does Incorporating a copyrighted sound recording into the soundtrack of a taped commercial television production infringe upon the copyright owner’s right of reproduction?

Yes

What is an ephemeral recording?

is production of a work produced solely for the purpose of a transmission by a transmitting organization of the work by an entity legally entitled to publicly perform the work

How do you get ephemeral recording exception to not be liable for copyright infringement?

1 The Copy must be used solely by the transmitting organization that made it and no further copies can be made 2 the copy must be used solely for the transmitting organization own transmissions within its local service area or for purposes of archival perservation and 3 unless preserved exclusively for archival purposes the copy must be destroyed within six months from the date the program was first transmitted to the public.

What rights do copyright holders enjoy?

Exclusive rights under the Copyright Act 17 USC 101 : 1 to reproduce the sound recording, 2 prepare a derivative work based upon the sound recording, and 3 to distribute the copies of the sound recording to the public.

Describe limitations on copyright for sound recordings-

Sound recording copyright owners do not have exclusive performance rights 17 USC 114

When does a sound recording become a derivative work?

A sound recording copy becomes a derivative work when the actual sounds in the recording are transformed that is rearranged remixed orotherwise altered in sequence or quality.

What does known or hereafter known accomplish in a contract?

leaves room for future mediums to be included in contract

What is a novation?

novation is the act of either replacing an obligation to perform with a new obligation; or adding an obligation to perform; or replacing a party to an agreement with a new party.

When can trademark holders prevent use of the trademark?

if that use is likely to confuse the consumers as to the source of the good of service

Can personal service contracts be specifically enforced?

No

What does a ticket holder have?

All the holder has is a license to enter so they have no cause of action if an artist performs even one song or steps on stage at a concert

Things that tend to show contract in absence of written agreement.

Partial performance and acceptance indicates a contract exists. Meeting of minds on material terms also shows a contract.

Is nuisance or violation of civil rights a valid complaint against a municipality?

No, nuisance nor violation of civil rights of plaintiff is not a valid complaint against a municipality.

What is festival seating at a concert?

Where there are no reserved seats

Can treatments and screenplays be copyrighted?

Yes

Holding of Buchwald v Paramount Pictures

When proving if something is based upon you need access to original work. The more the access the less striking the similarities between the two works need to be.

Statute of Limitations on Breech of Confidence

2 years from when the confidence is breached.

Under what statute does a copyright holder have protection?

17 USC $501(a) Copyright infringement . USC 17 106(2)copyright holder has exclusive rights to create a derivative works.

What defines a contract of adhesion?

Contracts of adhesion exist when an individual has no opportunity to negotiate – failure to negotiate does not result in a contractof adhesion.

___ is required to prove stealing of an idea

Access

NY Article 11 of the General Business Law Section 172

All agents must be licensed but there is an exception for an agent who is in the business of managing such clientel and the seeking of employment is only incidentally involved.

The Talent Agencies Act Lab Code $1700-1700.47

Requires those who procure work for talent to be licensed by the labor commission.


No person shall engage in or carry on the occupation of a talent agency without first procuring a license therefor from the Labor Commisssioner. There is an exception for those procuring recording contracts because the reviewers/ experts in the industry believe thatit should be excused.

InPari Delicto with regards to Agents licensing

As held in Buchwald v Superior Court Artistsare not equally guilty because the Act to ensure agents are licensed was meantto protect them.

Taft Hartley Exemption

All major motion picture studios are members of the SAG and all actors who work for them must be licensed through the guild. Under Taft Hartley there is a one time exemption to this rule

SAG

screen actors guild

WAG

writers association guild

Loan out corporation

is a personal service corporation which lends the servicesof an artist to a production company.

1st Cut of movie

Editor gets all the raw footage and does an assembly

2nd Cut of movie

Director watches and does a cut with the editor for submission to the studio

Final Cut

studio does the final cut showing the interests of the studio

Agent

generally someone who procures employment (the deal maker for the artist), subject tostate licensing and regulations (CA Artists Managers Act and Talent Agency Act)

Pay‐or‐Play Clauses

Record industry artists will want the number of albums to be released during the first cycleto be firm so that the label will have to pay the artist if they don't release it Movie biz: applies to actors and other talent (writers, producers, directors) so theproduction company can fire at will as long they willing to pay

Coogan's Law

protects a minor's earnings


Courts and parents must establish trust funds for the minor and employers required to deposit 15% of gross profits into trust fund◊ If employer not told about trust fund, they still must set aside to Actor'sFund of America to hold for the minor

Entertainment Contract Remedies

i. Equitable remedies (injunctions, specific performance) ii. Damages (must mitigate damages)

Policy reasons behind personal service contracts being uneforceable

1. court will not compel unwilling employee to continueproviding services2. difficultto monitor and enforce compliance of an unwilling party3. 13thAmendment ban on involuntary servitude4. negativeinjunctions not issued against employees where probable result will compelperformance involving personal relations, or leave employee w/o means ofreasonable livingl>

What is needed for a negative injunction on personal service K's?

California Injunction Legislation—CA Civil Code §342 In order to sustain claim for injunctive relief, a Kmust:


1. bein writing;2. encompassunique and extraordinary personal services; AND guarantee minimum compensation a

Positional damages/ remedies for breech of contract:

expectancy (where you would have been), reliance (back where you were) and restitution (puts breeching party back to beginning)

Defamation elements

i. Elements (prove to succeed as a π)


1. Falsestatement of fact,2. ofand concerning the π,3. publishedto at least one other party,4. injuriousto π’s reputation,5. culpability

Actual Malice

knowledge of falsity or gross disregard of truth

Defamation of Private party—

negligence required only but, need actual malice for punitive damages

Invasion of privacy

1. Intentionally,2. intrudes(physically or otherwise),3. uponsolitude or seclusion of another,4. conductis highly offensive to a reasonable person.receD}@3

Privacy Invasion causes of action

For these causes of action, person has to have somereasonable expectation of privacy. Standard matter, people have no protectable interests in public.

Public Disclosure of Embarassing Personal Facts

1. Public disclosure,2. mattersof π’s private life,3. highlyoffensive to a reasonable person,4. matterpublicized is NOT of legitimate public interest (not newsworthy)

False Light Portrayals

1. Publicity which places the π in a false light in thepublic’s eye,2. highlyoffensive to a reasonable person,Δ is culpable, actual malice for public figures

A public figure is

one who has 1. pervasive fame/notoriety, AND2. voluntarilyinject themselves, OR3. aredrawn into public controversy which renders them public figures 1@3

What does a publicity action require?

commercial exploitation by one side or the other

Elements of Infringement

owns copyright and must show Δ copied by direct proof OR show circumstantial evidence through access.

What works are copyrightable?

copyright applies only to original works of authorshipin any tangible medium or expression

Fixation

Original work must be fixed in a tangible medium ofexpression

Scenes-A-Faire

Stock scenes—standard in the treatment of a topic or Sceneswhich are indispensable or at least inherent in the treatment of the topic

Fair Use Elements

1. Purpose and character of usea. Transformative,commenting, criticizing, parody? 2. Natureof copyrighted work (usually pro-π)a. Isthe original work creativeb. Πcan almost always show this is a factor3. Amountand importance of material useda. Quantitativeb. Qualitative4. Effectof use upon potential market for copyrighted work and derivativesa. Dopeople now buy second work rather than first?b. Aparody so good that it eliminates desire for the original does not satisfy thiselement

Contributory Infringement

Induced, promoted, encouraged, fostered infringement or knew and failed to prevent

Vicarious infringement

knew profited had the right to supervise and failed to do so

Works for hire

1. Prepared by employee (look to agency law) w/in thescope of employment, OR2. Speciallyordered or commissioned, BUT ONLY IF:a. Partiesexpressly agree (before performance) in a written agreement (agreement memo cancome after performance) signed by them that the work is “for hire” ANDb. Workfalls w/in specific statutory categories

17 USC § 502(a)

Court may grant temporary and final injunctive reliefon such terms reasonable to prevent or restrain infringement of a copyright

17 USC § 504b

Infringer of a copyright is liable for either actual damages and additional profits of the infringer, OR i. Attempt to reimburse π for the extent to which the market value has been injured or destroyed based on 1. π’slost profits, OR 2. Δ’sprofits, OR 3. combinationb.

Does copyright law protect ideas?

No

How long do copyrights last after death?

50 years

Independent Creation

concept from Selle v. Gibb that more than one person can create original, identical works, and each person will still have a valid claim to the ©

Cumpulsory License Fee

Once published anyone else can record that song, subject to paying a compulsory license fee to ©proprietor of the song.

Transfer of copyright

there must be an article of conveyance; it must be a writing, signed by the owner.

Right of Publicity Summary

Right to reap rewards - © and patent law More attractive for assignment & descendibility issues (assignable right) Predominantly for celebrities

Right of Privacy Summary

Person’s reputation (mental distress) Personal right only injured can assert (expires upon death) More for the average individual !

Right to Privacy Elements

identifiable manner, without consent, and in situations in which the invasion benefits thewrongdoer (how many recognized you does not prove violation of privacy right but may be factored in re damages)

Difference in right to publicity NY v CA

NY no right to publicity separate from civil right to privacy. Stephano. CA has statutory and common law protections of the right to publicity

Suggestive TM

words which suggest but don’t primarily describe the goods or their character

Fanciful TM

coined words which have been invented for the sole purpose of functioning as atrademark

Descriptive TM

marks that describe the qualities, ingredients, characteristics of a product

Arbitrary TM

words or symbols in common usage in the language but arbitrarily applied to goods

Trademarks types

Arbitrary,Descriptive,Fanciful, or Suggestive

Personal Managers

takes care of whole package, coordinates all, manages career – global view

Agents

1. Gets name out there, gets work. In CA, personal manager can’t secure employment for the person, can negotiate terms of record K, etc, unless personal manager is also license agent

Fiduciary Duty

Put clients above all of your interests, nomatter what they are. Can’t do anything to promote yourself in anyway adverse to the client

Music Publisher

1. Working on a creative level with songwriters in thecomposing of new songs


2. protecting, enforcing and administering copyrights


3. seeking potential licensees for songs - find uses forthe song


4. entering into licensing arrangements


5. collecting and disbursing resulting income $

Four standard money generators for music

Public Performance Royalties


Print


Synchronization


Mechanical Royalties

Publishing Agreement

Songwritergets ½, publisher gets ½. Publisher owns copyright

ESWA

Singlesong publishing agreement and exclusive songwriter agreement. Common where writer is reliant on publisher’s song plugging and writers who record their own material and want ownership and just need administration

Songwriter Agreement

Writerreceives 50% royalties, songwriter transfers 100 % of the copyright andadministrative rights to publisher.

Administration Agreement

Songwriter retains 100% of the copyright, the publisher receives administrative fee (15% gross income).Songwriter controls everything here, and publisher gets no ã percentage. Songwriter can’t keep up with ASCAP and asks publisher to.

Collection Agreement

Publisher acquires no ownership rights, has rights for a term of years. Publisher handles paperwork of registration, licensing and collection fees.

Foreign Sub publishing Agreement

US publishers enter into deals with sub-publishers in other countries that are similar to administrative agreements. These include provisions for economic control,a prohibition against licensing songs for film or TV, timely payment of advances and royalties, tend to be for short time – 3 years.· If there is no local publisher to collect royalties, the income is still paid to US publisher or affiliate (BMI, ASCAP).

Songwriter Deal

Onesong deal and shared copyright between songwriter and publisher

RIAA

Recording Industry Association of America. Releases figures and statistics related to the music industry.

Completion Guaranty Bonds

guarantee,issued by a company whose personnel are typically experienced in financing andproduction of films, that a specific film will be completed on time and onbudget and, if not, that the guarantor will either step in and complete thefilm, pat the over-budget costs or abandon the film and repay production costs.

A producers role in a movie

1. Acquires story 2. Finds a director – runs the show and the production start, puts twist on the film 3. Acquires Financing – if goes over budget, ins. co comes in & finishes picture 4. Finds Actors 5. Hires Crew 6. Finds Music –label owns, master use license with phonorecordings

provides equalair-time to political candidates; same time, same price

Fairness Doctrine

Synchronization License

contract betweena movie producer and a record label for sync rights of master use in the movie.

Mechanical License Agreement

between record label and music publisher granting the label a license to use compositions in record or tape on payment of royalty.

Master Purchase Agreement

tosell master recordings on payment of flat fee or royalties, usually for old recordings

Billing

Important for future pay value of an actor.

When is a copyright created?

The law automatically protects a work that is created and fixed in a tangible medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting for the author's life plus an additional 70 years.

How are copywritten songs performed in public?

Through the payment of a flat fee to perfomance right organizations like ASCAP BMI and SESAC

When can a trademark be registered?

a trademark can be registered if it is able to distinguish the goods or services of a party, will not confuse consumers about the relationship between one party and another, and will not otherwise deceive consumers with respect to the qualities.

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band agreement

dissolution agreement

trademark dilution

is a trademark law concept giving the owner of a famous trademark standing to forbid others from using that mark in a way that would lessen its uniqueness.

when does a copyright form

as soon as a work is created the author holds the copyright of that work for 70 years without obtaining a registration ie novel sculpture song dance computer program database pantomime

coverage

is a summary of a script for producers/ studio executives



all stories must have

3 acts romance and a happy ending

bead outline

is the outline of a story scene by scene

log line

is a one (or occasionally two) sentence description that boils thescript down to its essential dramatic narrative in as succinct a manner aspossible.

climax cross over between intro and conclusion

at 60 minute mark in movie and always in 2nd act



under which law are creators allowed compensation for stolen ideas

Torts law

A formal meeting where an idea is pitched and the idea is subsequently used creates

A CONTRACT

defamation per se

comments regarding chastity of a woman

type of right Right of Publicity is

Property Right which is governed by state the star lives or dies in

NY Protects Copyright when

The idea is novel to the listener ie person who received the idea has not heard it before

CA Protects Copyright when

a meeting of the minds in a formal meeting has occurred. If I give you an idea and you use it you will pay me

First Sale Doctrine

Once you sell your copyrighted material you have no copyright in it

Public Domain

Everything created prior to 1923

Trademark Abandonment of Name

Cannot be done

Lanham Act accurate labeling exception

Exception that factually defining something without implying endorsement is not a violation

Where does Right of Publicity include appropriation of voice?

CA

Dilution Causes of Action under Federal Trademark Dilution Act of 1995

-"Blurring", by which the connection in consumers' minds between the plaintiff's mark and the plaintiff's goods or services is weakened; -"Tarnishment", which means that the defendant's use is unsavory or unwholesome, or the mark is used in connection with inferior products.

Remedies Against Further Dilution

Injunction