The Complete Guide to Film & Digital Production: - PowerPoint Presentation

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The Complete Guide to Film & Digital Production: - PPT Presentation

The Process amp The People Lorene M Wales PhD LEGAL ISSUES 2017 Taylor amp Francis Types of Intellectual Property Patents Trademarks Copyrights Unfair Competition Trade Secrets 2017 Taylor amp Francis ID: 782191

francis amp 2017 taylor amp francis taylor 2017 work original public fair agreement material copyright film domain company years

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Slide1

The Complete Guide to Film & Digital Production:The Process & The PeopleLorene M. Wales, Ph.D.

LEGAL ISSUES

Slide2

Types of Intellectual PropertyPatentsTrademarks

CopyrightsUnfair Competition

Trade Secrets

Slide3

Types of PatentsUtility

Plant (literally, agriculture)

Slide4

Utility PatentAny new

and useful

process, machine, composition of matter, or any new and useful improvement thereof, may obtain a …(35 U.S.C. § 101)

Slide5

Design PatentsWhoever invents any new, original, and ornamental design

for an article of manufacture may obtain a patent. (35 U.S.C. § 171)

Slide6

What Is A Patent?

Grant

by the U.S. Government to provide individuals legal protection for their discoveries (inventions).

Gives the owner the right to prevent others from making, using or selling the

invention

Slide7

Life & DurationUtility patent

years from date of issue if application filed before June 95

years from date of filing application

after

June 95

Effective only in the U.S. (foreign patent applications filed separately).

Slide8

Requirements for a PatentTo obtain a patent, the new invention must be:

Novel – not known or used in this country and not published anywhere.

Nonobvious – cannot be an obvious way to do something.Useful – must have some application, even if not commercially practical.

Slide9

Trademark Law

Trade & Service Marks

Slide10

Identifies a tangible good or product of a company or individual.

Trade names

Once a trade name was used to denote any mark descriptive of a good or service. Today, it is a company

business name

Trademarks & Names

Slide11

TrademarkAny word, phrase, symbol, design, sound, smell, color, product configuration, group of letters or numbers, or combination of these,

adopted

and used by a company to identify its products or services, and distinguish them from products and services made, sold, or provided by othersA

distinctive

mark, device, or implement that a manufacturer stamps, or prints on its goods.

Slide12

Trademark

Assists customer in identifying a product without confusion.

If a business uses the trademark of another, consumers are misled as to who made the goods.

Slide13

TrademarkWhat can

be trademarked

Words that are used as part of a design or device or words that are uncommon or fanciful may be trademarked. What cannot

be trademarked

Personal names, descriptive or generic words, or place names

Books

Pencils

Carper

Hawaii

Slide14

Ownership and RegistrationFirst

person to use a mark in trade owns it.

Registration is not necessary, but does have some advantages.Protection becomes nationwide

Gives public notification of trademark protection

Damages under the Lanham Act are higher

Holders of registered marks have first priority to use the mark as an Internet domain name

Slide15

Requirement of EnforcementAn alleged infringer

may claim that the Plaintiff's mark was abandoned and thus the protection lost.

Non use of the mark in question. Intent to discontinue the use of the mark.

Presumptive abandonment occurs after two consecutive years of non use.

May be rebutted by proof of intent to resume use

Slide16

Service MarkAny word, name, symbol, device, or any combination, used, or intended to be used,

in commerce

Slide17

Domain NamesInternet addresses, (domain names), were originally assigned with no cost.

Now, bought and sold – sometimes for a lot of

money, and sometimes sold by people who originally registered those names for free.If a domain name infringes on a registered trademark, the domain name will be suspended immediately if the trademark owner challenges it.

Slide18

Additional ConceptsProduct disparagement

or product defamation

.False statement about a product or company

Must prove actual malice (companies are considered public figures)

Must prove damages

Slide19

Additional Terms & ConceptsPalming Off: One company sells its products by leading buyers to believe it is the product of another company.

Gray Goods

Slide20

Other forms of IP

Slide21

CopyrightsCopyright law protects the expression

of an idea. Not the idea itself.Copyright protects

“…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)

Slide22

OriginalThe term original

in the copyright law means that the work originated

with the author.There is no requirement for novelty or uniqueness as there is in patent law.Must originate with

author

Slide23

Fixed in a Tangible MediumAny stable medium

that will record or reproduce the material is acceptableComputer software satisfies the fixation the moment the material is stored (

saved)A computer display

is considered fixed even if it appears momentarily and only returns under certain conditions (games)

Slide24

DurationDepends on whether it is pre or post 1 Jan. 1978

Pre - Depends on whether published? Registered, first term, renewal

etc.Post - Life of author + 70 years

Work-for-hire 75 years from publication, 100 years from creation which ever is first

Slide25

InfringementTo prove

a violation, the plaintiff must show that the work was original, and that either:

The infringer actually copied the work, or

The infringer had

access

to the original and the two works are substantially

similar

Slide26

InfringementA court may:

Prohibit

further use of the materialOrder destruction of infringing material

Require infringer to

pay

damages

Slide27

OwnershipWorks for Hire

- employer is considered the author when:

Work prepared by an employee within the scope or his/her employment.

ork specially ordered or

commissioned

for use as a contribution to a collective work.

Duration 75 years from publication or 100 from creation.

Slide28

Ownership cont..Joint Works

- when 2 or more people make contributions of authorship with intention contributions be merged into

Slide29

Public Domain?How can you tell if a work is in the public domain?

Take a look at the following

chart and you will see that it depends on when the work was created…

Slide30

Slide31

Public Domain If published

before 1923, it’s in the public domain.

If it’s NOT in the public domain you cannot…Reproduce the music or lyricsDistribute (includes non-profit)Perform it in public

Play it in public

Make a derivative work

Check out this website:

www.pdinfo.com

, an awesome website for everything PD!

Slide32

Video GamesCopyright law protects the entirety of the computer code

that creates the game in the same manner as it protects the entirety of a novel. Copyright law also protects the music, dialogue, scene and setting images, and character images within the game.

Slide33

Video Games- Player LicensesLicenses player to use

the game within the terms that are set forth in the license. Does allow purchasers to make backup

copies for purposes of archiving and re-loading in event of a computer crashLicenses to players may differ

from game to game. Some permit or even encourage users to record and distribute screen shots of their plays.

Slide34

Plots and ConceptsBasic game concept or plot is not

protected by copyright law.

Slide35

Open Source and Creative CommonsSome choose to license their games as open source

or Creative Commons works. Allow the public to make designated use or some kinds of changes to the game.

Creative Commons licenses can set out different kinds of authorizations, allowing others to make new games based on characters or producing t-shirts or other commercial products provided the original copyright holder is identified

on subsequent works.

Slide36

Fair Use - CriteriaPurpose of the use (commercial or private)Nature of the workAmount of the portion used

Effect of the use on the value of the original

Fair use is a law, which allows people to have certain use of certain copy written works, depending on the following four criteria.

Slide37

Purpose of the UseIssue: whether the material has been used to help create something new or merely copied verbatim into another work.

Has the material you have taken from the original work been

transformed by adding new expression or meaning?Was value added by creating new

information, new aesthetics, new insights, and understandings?

Slide38

Slide39

Purpose of the Work Transformative is determined by:Whether and to what extent it is “transformative,” altering the original with new expression, meaning, or message

.The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

Slide40

Purpose of the WorkOK for purposes such as:scholarshipresearcheducation May also qualify as transformative uses because the work is the subject of

review or

Slide41

Nature of the WorkBecause facts or information benefits the public:You have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels.

Slide42

Published WorksYou have a stronger case of fair use if you copy the material from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance.

Slide43

Amount of the Portion UsedThe less you take, the more likely that your copying will be fair use. Your copying will not be a fair use if the portion taken is the “

heart”. More likely to run into problems if you take the most

Slide44

Amount and ParodyThis rule — less is more — is not necessarily true in parody cases. A parodist is permitted to borrow quite a bit, even the heart of the original work.Supreme Court has acknowledged, “

the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim.”

Slide45

Effect of Use on Value of OriginalIf the use deprives the copyright owner of income or undermines a new or potential market.Depriving a copyright owner of

income will trigger a lawsuit.

Slide46

Effect of Use & ParodyIt’s possible that a parody may diminish or even destroy the market value of the original work. That is, the parody may be so good that the public can never take the original work seriously again.

Slide47

Parody and Fair UseAs one judge explained: “The economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original—any bad review can have that effect—but whether it fulfills the

demand for the original

Slide48

Fair Use and the CourtsU.S. Copyright Law cites examples of activities that courts have regarded as fair use. These include:quotation of excerpts in a review or criticism for purposes of illustration or comment

quotation of short passages in a scholarly or technical work, for illustration or clarification use in a parody of some of the content of the work parodied

Slide49

Fair Use and the Courts (cont.)summary of an address or article, with brief quotations, in a news reportreproduction by a library of a portion of a work to replace a damaged copyreproduction by a teacher or student of a small part of a work to illustrate a lessonreproduction of a work in legislative or judicial proceedings

reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported

Slide50

Acknowledging Source Material Acknowledgment of the material may be a consideration in fair use, but it will not protect against a claim of infringement.

In some cases, acknowledgments can backfire and create claims, such as violation of the right of publicity.

Slide51

DisclaimersA disclaimer is a statement that “disassociates” your work from the work that you have borrowed. In close cases, a prominently placed disclaimer may have a positive effect on the way the court perceives your use.

However, generally a disclaimer by itself will not help.

Slide52

ClearancesThe process of getting permission to use or refer to certain items.What items?

Slide53

Clearance ItemsBusiness names – If you refer to say, McDonald’s a nationally known company, you need to get their permission.

Product names

– If you refer to an Oster blender, you may need to get their permission.

Slide54

Organization names – If you refer to the Salvation Army you need to get their permission.Fine artwork – If you show a painting that’s on the wall, you need to get permission of the artist.

More Clearance Items

Slide55

More Clearance ItemsPhotographs - You must get permission of the photographer and in some cases the people in the photograph (unless deceased).Book covers -

Not if you film a whole library, only if the book is featured in a scene.

Slide56

Magazine covers – again, really only if featured in a scene.Newspapers – this is why you see a lot of “fake” newspapers in film, it’s much easier to make a fake one than to get permission.

More Clearance Items

Slide57

More Clearance ItemsWallpaper – Yes, wallpaper is art work, SOMEONE designed it didn’t they?Bedding – This mostly refers to quilts which is a major art industry.

Slide58

Copyrighted Material – Goes without saying…Trademarked material – You don’t always have to clear trademarks, but it is a good idea.

More Clearance Items

Slide59

More Clearance ItemsStock footage – This usually becomes “cleared” when you buy it, because you buy the rights for it, when you buy it.Film & TV clips

– Same as stock footage.

Slide60

Derogatory references – Being derogatory could subject you to charges of defamation or slander.Telephone numbers – This is why you hear “555” whenever actors mention a phone number.

More Clearance Items

Slide61

Portrayals of famous people or government officials.Cases where filmmakers used look-a-likes &got into trouble, and some didn’t. Public figure is different because most public figures give up their right to privacy when they become famous, although that’s debated consistently by, guess who, the famous people!It’s all very gray…

More Clearance Items

Slide62

Releases

A release is a person granting you permission to film their likeness or use their location, or use their material.

Talent Release

Crowd Releases

Location Releases

Script Release

Slide63

Important?Distributor or network, or cable channel will ask for “deliverables.”Documentation from your film.Without these the company

cannot air or

Slide64

DeliverablesCan contain contracts, clearances, releases, post-production materials and credit information.This is done to insure you have all the proper legal permissions in place.

Slide65

Talent ReleasesTwo kindsAdult - 18 years old and over

Minor – 17 years old and under

Slide66

Minor ReleaseUsed for children 17 years old and younger.Because a minor is not legally allowed to sign a contract, the parent signs

this one.

Slide67

CrowdWhen you are filming a large population of people, most often in a venue that requires a crowd, like a stadium, congregation, etc.The release is

displayed in the area of filming in a place that is easy to see (generally a big sign).

Slide68

LocationAn agreement where the owner of a property agrees to let you film at their location.The agreement also promises that if you

damage the location, you will pay for it.

Slide69

Script ReleaseA contract between you and the scriptwriter. The release grants the production company the right to film the script.A script agreement is different than a script

release. A script agreement is done when there is significant pay involved.

Slide70

Script ReleasePart of this release also allows the producer certain rights to the story.

1. ASSIGNOR sells, grants, assigns and sets over (“assigns”) to _________________, its successors and assigns, all rights, under copyright or otherwise, and the unencumbered right to exercise these in all media and by any manner and means, whether now or later devised throughout the universe in perpetuity, in that certain [literary material/musical work]_________________written by ASSIGNOR entitled _________________ (“work”), including, but not limited to the copyright in all (i) contents. (ii) present adaptions and versions. (iii) themes, (iv) titles. (v) characters. and (vi) renewals or extensions.

Slide71

ContractsEmployee contractsCrew & castEquipment RentalsProduction Agreement

Script Agreement

Slide72

Slide73

Employee ContractsThe kinds of employee contracts you will encounter include:

Independent contractsDirector’s agreement

Slide74

Independent ContractorsWork for you but you don’t take taxes out of their pay.Get a 1099 form at the end of the year.The government gets the taxes from their pay.

Most work freelance and are incorporated (which helps with the taxes).

Slide75

Day & Weekly PlayersDay players - 5 or less days, get paid per day.Weekly players - 6 or more days, paid by the week.Contracts cover

length of employment & what

Slide76

Day & Weekly PlayersKit rentalRelease form inside contract.Keep silent clause. No one is allowed to talk about the filming with anyone. The producers try to create a sense of mystery around the filming.

Slide77

Director’s AgreementDGA director’s agreement, or, an independent agreement.Covers important issues in regards to the director including:Length

of time on the filmWhat credit

Slide78

SAG AgreementIf you produce a SAG show, you become signatory for the show.Lots of paperwork.All done to ensure actor’s are treated well.Here’s a link to one of their agreements:

http://www.sagaftra.org/production-center/documents

Slide79

SAG AgreementBased on budget.Ex: low budget agreement = budget of less than 2.5 million.Covers:The actor’s pay, hours, accommodations, per diem

Residual pay (if applicable)Has a statement about nudity and stunts on the film

Slide80

Equipment RentalsVary from vendor to vendor. Cover:Grip & lighting packagesCamera & sound packagesMiscellaneous rentals such as wardrobe, props, set dressing, etc.

Make sure to understand

terms of the agreement including drop off and pick up dates and any fees on damage or loss of the equipment.

Slide81

CREDITSNo set rulesContractualGet from deal memosDrafted @ end of principal

Slide82

MAIN TITLESFrame Right Films, Inc. presents

J Darin Wales FilmRegina of Icelandia

Starring

Jing Lei Wales

Zane Duran

Lindsey Snyder

Costumes Designed by

Carolyn Margaret

Production Designer

Elizabeth Stahl

Slide83

Director of PhotographyReagen Beard

Special Visual Effects by

Danielle KirstenMusic byMatt Brinkman

Casting by

Smith and Jones

Written by

Keenan Beards

MAIN TITLES

Slide84

Executive ProducersMargie GuerreraAlbert Jose

Produced by

Belinda SmithDirected by

J Darin Wales

MAIN TITLES

Slide85

ConclusionThe legal aspect of making films include items such as copyright, fair use, releases and clearances. There are many contracts associated with a show, so it is wise to retain the services of a good lawyer.

Main titles can be based on contract agreement.