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October 20, 2009

Shepard Fairey Motion to Amend Exhibits

The Exhibits to the Motion to Amend may be found at: http://www.ap.org/iprights/fairey.html.

September 8, 2010

Whose Life is it Anyway? Clearance of Life Story Rights in Film

By Diane Krausz

The right to privacy is one of the most treasured fundamental rights in American society. Another treasured fundamental right is freedom of expression. A great deal of filmed media involves the re-imagination of historic events, the examination of public figures and their private lives, or the dramatization of the lives of private citizens with compelling, interesting or unusual stories. Often, the right of a film maker’s freedom of expression can overshadow or destroy an individual’s right of privacy, particularly for a private citizen. Attorneys who advise screenwriters, producers and film financiers often need to weigh the existing state laws, precedents and particular facts of a matter to determine how to advise their clients in this confusing area.

Even a first year film student understands that writing a screenplay based upon someone's life can raise significant legal issues. Law students are taught to analyze the facts; specifically, to classify the characters of a script into the "living" or "dead", "private" or "public” citizen, and the specific issues in a scene (“newsworthy”, “private matter” or “public matter”), as this can make all the difference when determining whether the depiction of a particular individual in a specific scene constitutes infringement on someone’s ”right to publicity” or is permissible because of “fair use.” Note that a right to privacy is a protected right of an individual to non-interference by others, while the right of publicity is an individual’s right to exploit and profit from the exploitation of the exact things he or she is entitled to protect under the right of privacy.

A right of publicity is typically defined as an individual’s right to control and profit from the commercial exploitation of his or her name, likeness, image, or persona. In order to grant a right of publicity in New York State, the individual must give permission for such use in writing. In order to use a person’s name and likeness in New York, one must look to N.Y.Civil Rights Law 50 and 51. Absent the obtaining of a signed release, a private individual may have a cause of action if private information about him or her is disclosed in a film, and if such information is offensive, embarrassing or defamatory.

However, the private individual could lose the right to object to the public dissemination of the above information if a court determines that the story and/or facts disclosed is/are something that the public needs to or should know, e.g., is "newsworthy", and that there is a "public need" to share the story. For information to fall within the newsworthy exception the information must: 1) Be a current news item, or a past event currently disseminated for informative purposes, 2) be a media presentation on public issues, or 3) be based on historic information. This means that fair use extends to underlying events discussed in the film containing information obtained during a private information session, but already available to the public (for example, court records, newspaper, etc.). Of course, the actual record cannot be reproduced or read verbatim, since that would infringe on the "actual means of expression" concerning the event. Again, one must always consider whether one can get the private individual in question to sign a permission or release, waiving his or her right to sue, or whether the facts disclosed are already in the public domain.

Screenwriters who cannot obtain releases from unwilling or unavailable individuals are often advised to craft characters and situations that are inspired by actual people and events, but where no individual is identifiable in the resulting film. Another approach is to create a "composite" character, which represents a number of various participants in a particular life story, but does not resemble or be identified as a specific individual.

Even in this age of sophisticated film students and eager life story litigants, rarely does a screenwriter or creative producer analyze a screenplay in the same way as a production attorney at a studio, or an attorney who clears errors and omissions insurance for a film prior to distribution. Post production decisions regarding the need for additional releases can often hold up the financing or distribution of a film until such a clearance is obtained. Absent the ability to obtain the mandated written waivers/permission, significant edits and other changes dictated by legal and business rather than creative concerns are often made to a final film prior to distribution.

It is important to note that the right of publicity is not a federal right. Therefore every state has a different view on what constitutes “infringement” and what is “fair use.” For example, in New York a photographer may not need permission to take someone’s picture and make the photograph a special feature at his next exhibit (see Nussenzweig v DiCorcia, 832 N.Y. S. 2d 510). However, in May, Judge Trauger of the Middle District Court of Nashville Tennessee refused to dismiss the plaintiff’s claim in summary judgment in Samuel David Moore et al. v. The Weinstein Co. LLC, opining that the use of Samuel David Moore’s identity as the basis for a character in the film “Soul Men” could sustain a cause of action for breach of right of publicity against a defense of First Amendment privilege.

It is important to point out that a claim for violation of a right to someone’s publicity is not limited to the main subject of a film or story. If there are ancillary individuals involved in the film, it is necessary for to obtain permission for the depiction of their names, likenesses, etc., especially if the dramatized depiction of the events was not previously recorded in a public manner. The upcoming release of the film, The Social Network, based on the actual facts surrounding the creation and creators of “Facebook”, has recently received quite a bit of media attention to the issue of whose and what rights producers should clear when dealing with recent, highly public and litigated issues concerning disagreement as to facts. A New York Times article by Michael Cieply and Miquel Helft correctly stated that "filmmakers often elect not to buy rights for people who figure only marginally in a picture....But studios like to lock down the rights to their principal living subjects if only so that they will not be bound to literal truth in their portrayals." An quote from one of the film’s producers, Scott Rudin, in The Wall Street Journal on September 3, 2010, excellently summarizes a film producer’s (and attorney’s) best legal justification for not obtaining releases from principals in connection with their portrayals in a film:

These guys (the major players in the Facebook lawsuits) all walked into a
courtroom to give their depositions-their version of the truth. And they told
three different stories. The movie exists in that grey area.

Personal experience has found that when negotiating life story rights with major studios, it is extremely difficult, if not impossible, to carve out, limit or modify any provision that gives the studio absolute control to make any and all changes to a story line, character, plot of any kind or nature, including a specific waiver of droit moral rights in European jurisdictions. The result of one very long but ultimately successful negotiation resulted from one client, a former head of a foreign government agency, to legally forbid the producers of a film from having him depicted in the act of personally carrying out the murder of anyone during the course of the film’s action. In other instances, film producers have been known to change the gender of an individual for a film, much to the consternation of the underlying life story owner/grantor.

Attorneys prefer well written and signed releases from anyone and everyone depicted in a film. If such releases are unavailable, the analysis and procedure for "clearing" the rights or "chain of title" to a film, including the need to obtain rights in and to life stories of characters in a film production, the decision of what creative edits are required often becomes a complicated and multi-tiered process. An ultimate resolution is often an imperfect combination of financial, practical, creative, legal and business considerations unique to the particular project in question.

December 12, 2011

Jesse Eisenberg Sues for the Misappropriation of his Image in the Film Camp Hell

By Geisa Balla (geisa.balla@gmail.com)

"No good deed goes unpunished" begins the complaint filed by Jesse Eisenberg in the Superior Court of the State of California on November 22, 2011. In this lawsuit Jesse Eisenberg, an actor who starred in the horror film Zombieland, and best known for Academy-nominated performance in The Social Network, alleges that defendants Lions Game Entertainment Inc., and Grindstone Entertainment Inc., capitalized on Eisenberg's fame and public persona by falsely advertising the film Camp Hell as a film starring Jesse Eisenberg.

In this complaint Mr. Eisenberg alleges that he appeared in the low budget film Camp Hell as a favor to a friend. The plot of Camp Hell centers on teenagers who travel to a Christian Bible Camp led by a charismatic priest played by Bruce Davison. In the film, the Bible Camp turns into a nightmare when it becomes possessed by a demonic presence. The two main characters in the film are teenagers who are played by Will Denton and Connor Paolo. Mr. Eisenberg was approached by friends who were producing Camp Hell, and was asked to appear in a small role. He worked on the film for one day and appears on screen for five minutes, primarily in flashbacks of Bruce Davison's character. He accepted only $3,000 for this role, the SAG minimum compensation, and his name appears last in the list of cast credits.

The film was released on DVD on August 9, 2011. The cover of the DVD features a large photo of Mr. Eisenberg's face, and Mr. Eisenberg's name in large letters appears above the title of the film. The names or the photos of the three lead actors of the film do not appear on the cover (http://www.bloodygoodhorror.com/bgh/reviews/08/22/2011/camp-hell-camp-hope).

According to the complaint, Mr. Eisenberg was informed that his image would be featured on the cover of the DVD prior to its release. He objected to this use of his image and demanded that the defendants cease and desist from using it. However, the ddefendants refused to do so, and admitted to Mr. Eisenberg their intent to exploit his fame by prominently featuring him as the star of the film, hoping to lure in young viewers familiar with Mr. Eisenberg's work.

Mr. Eisenberg is seeking $3 million in damages. In his misappropriation of right of publicity claim, Mr. Eisenberg alleges that the defendants' unauthorized use of his image and their fraudulent and misleading advertising for Camp Hell has damaged his name, likeness and goodwill. In his quantum meruit claim, he states that he provided valuable services to the defendants by performing in the film and being featured in its advertising. The complaint also brings a claim for unfair business practices, alleging that the defendants have received ill-gotten results from their fraudulent advertising.

To view the full complaint, see http://images.eonline.com/static/news/pdf/eisenberg.pdf.

June 24, 2013

While a Quarterback Looper tries to take down the NCAA Football, National Collegiate Athletic Association is on the Defensive for Publicity Right Violations

By Irina Tarsis

Contrary to popular belief, IP law does not protect our rights to exploit our own likenesses for commercial purposes. Celebrities like David Beckham, Angelina Jolie, Justin Bieber and Bruce Willis cannot trademark, patent or copyright their names, likeness, voices, or mannerisms. However, individuals may preclude others from using these personal attributes for commercial exploitation without their consent under the right of publicity doctrine. Most states have codified their privacy laws to classify appropriation of another's likeness as a form of an invasion of privacy. Thus, under rights of publicity, companies are required to obtain permission from individuals, including celebrities, for using their attributes in promoting a commercial product.

On May 21st, the U.S. Court of Appeals for the Third Circuit handed down a long anticipated decision in Hart v. Elec. Arts, Inc., 2013 U.S. App. LEXIS 10171 (3d Cir. N.J. May 21, 2013). It reversed the granting of summary judgment and held that the First Amendment does not shield Electronic Arts, Inc.'s (EA) unlicensed use of college football players' likenesses in NCAA Football sports videogames. Ryan Hart, Plaintiff/Appellant, is but one member of a Class made up of dozens of athletes whose identities and likenesses were incorporated into the game without authorization.

Originally released in the early 1990s, the NCAA Football videogame has been revamped and re-released annually to work with different game consoles and their next generation models. It evolved to include several Division I-A teams, as well as offer gamers options to recruit players, customize interfaces and offer trophies. Only the players who were chosen to adorn the covers of the game boxes were compensated for their participation. Historically, EA was careful not to use official logos of individual teams or the names of the actual players; however, college teams are listed by city and players are identified and identifiable by their actual numbers, class year, home team and vital statistics.

Ryan Hart is a former Rutgers college football player whose avatar is recognizable on the Rutgers virtual team as player number 13. However, EA did not license his likeness. In his original complaint, Hart alleged misappropriation of his likeness and biographical information, and sought, among other forms of relief, actual damages, statutory damages, punitive damages, disgorgement of all profits, enjoining future use of his and other class members' identities and likenesses in videogames, legal fees and destruction of all the copies of the videogame to the extent permitted by law. The case was initially dismissed on a summary judgment motion on First Amendment grounds.

A reversal in Hart may bolster another pending rights of publicity class action case brought by former NCAA athletes against the NCAA and Collegiate Licensing Company, alleging that the defendants violated sections of the Sherman Act, the federal antitrust laws, and unlawfully used the athletes' likeness and images in videogames produced by EA, television contracts, rentals and on-demand streaming, apparel and other products. O'Bannon, et al., v. N.C.A.A., 4:09-cv-01968-CW (Argued June 20, 2013). Before addressing the merits of the allegations in O'Bannon, U.S. District Judge Claudia Wilken first will need to decide whether to certify for a class action suit the former basketball and football players, including lead plaintiff O'Bannon, a former University of California basketball player.. The class suit would proceed under the legal theory that O'Bannon and other similarly situated athletes were injured in their right of publicity while the NCAA was unjustly enriched from retention of proceeds from sale of the products depicting the uncompensated athletes.

In Hart, EA conceded that NCAA Football infringed on the right of publicity as recognized in New Jersey. Thus, Judge Greenaway, writing for the majority, focused only on "whether the right to freedom of expression overpowers the right of publicity." Hart v. Elec. Arts, Inc., 2013 U.S. App. LEXIS 10171 (3d Cir. N.J. May 21, 2013).

Presented with a case of first impression, in Hart the Court relied heavily on a number of other states' decisions, including Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. N.Y. 1989) and Comedy III Productions v. Gary Saderup, Inc., 21 P.3d 797 (Cal. 2001), both which had more general IP holdings. Comedy III Productions in particular was important to the Hart Court because there, the California court introduced a balancing test to determine when individuals may or may not be allowed to demand payment or deny permission for depicting them in commercial projects. Specifically, the test focused on "whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation." 21 P.3d 797, 799. There the court inquired as to "whether a product containing a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness." Id.

The test that the Saderup case ultimately formulated would favor the celebrity "when an artist's skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame, then the artist's right of free expression is outweighed by the right of publicity." In Hart, as in Saderup, the "marketability and economic value of [an offensive] work derives primarily from the fame of the celebrities depicted." Hart v. Elec. Arts, Inc., 2013 U.S. App. LEXIS 10171 (3d Cir. N.J. May 21, 2013) citing Comedy III, 21 P.3d at 810.

In applying the Transformative Use Test to the instant case, the Court decided that mere creation of a virtual Hart did not satisfy the test, and the game did not sufficiently transform Hart's physical and biographical attributes. It believed that NCAA Football sought to create a realistic depiction of college football, and thus a purposeful depiction of athletes.

In Hart, dissenting Judge Ambro posits that the majority's application of the Transformative Use Test "underplays the creative elements of NCAA Football by equating its inclusion of realistic player likenesses to increase profits with the wrongful appropriation of Hart's commercial value." Therefore, "[t]his approach is at odds with the First Amendment protection afforded to expressive works incorporating real-life figures."

Judge Ambro also writes that "The Transformative Use Test I support would prevent commercial exploitation of an individual's likeness where the work at issue lacks creative contribution that transforms that likeness in a meaningful way. I sympathize with the position of Hart and other similarly situated college football players, and understand why they feel it is fair to share in the significant profits produced by including their avatar
likenesses into EA's commercially successful video game franchise. I nonetheless remain convinced that the creative components of NCAA Football contain sufficient expressive transformation to merit First Amendment protection."

Unless the parties settle now, Hart will proceed to discovery and trial to determine whether and to which extent Hart's privacy was violated. As for O'Bannon, Judge Wilken is likely to grant class certification, which too would probably lead to settlement. In the world where winning is gold, settlement of legal dispute may be platinum.



January 20, 2016

The 11 Contracts Every Artist, Songwriter & Producer Should Know: Video Production

By Steven R. Gordon

Steven R. Gordon (steve@stevegordonlaw.com, www.stevegordonlaw.com) is an entertainment attorney specializing in music, television, film and video. His clients include artists, songwriters, producers, managers, indie labels and music publishers as well as TV and film producers and digital music entrepreneurs. He also provides music and sample clearance services for producers of any kind of project involving music. Mr. Gordon is the author of The Future of the Music Business [www.futureofthemusicbusiness.com/] (Hal Leonard 4th ed. 2015).

The author gratefully acknowledges the assistance of Ryanne Perio, Esq. in the preparation of this article. Ryanne is a litigation associate at the WilmerHale law firm. He would also like to thank his intern Jena Terlip, 2L at Benjamin N. Cardozo School of Law, for her research and editing assistance.

DISCLAIMER
This series of articles and the forms included in them have been created for informational purposes only and do not constitute legal advice. This article and other articles in this series should be used as a guide to understanding the law, not as a substitute for the advice of qualified counsel. You should consult an attorney before making any significant legal decisions.

The eighth installment of this 11-part series on basic music industry agreements focuses on the business of producing music videos. This article contains a form agreement that can be used to hire a video producer, as well as releases for people and locations appearing in videos. Although MTV does not play many anymore, music videos have become more important in breaking new artists than ever before. Before making your own video, though, it's important to know the legal ins and outs of producing them.

INTRODUCTION

In the first part of this Introduction, I give a brief history of music video followed by a survey of how successful artists have used and continue to use them to launch their careers. The second part of the Introduction offers a summary of business considerations in producing videos.

PART I: HISTORY & CONTINUING IMPORTANCE OF MUSIC VIDEOS

1. Before Music Videos
Audiovisual presentations of music have existed since the first motion pictures containing sound. In fact, the first Hollywood "talkie," released in 1927, was a musical featuring Al Jolson called "The Jazz Singer." Before the invention of the video cameras, there were many musical short films featuring the performance of single songs, such as Frank Sinatra's patriotic "The House I Live In (That's America To Me.)" (https://www.youtube.com/watch?v=EWxW2Z5znWQ) These films were sometimes shown before main features at movie theatres. In the 1960s, artists like the Rolling Stones and the Beatles started to make short form films of individual songs to promote their albums. The dawn of what we think of as music videos began in the 1970s. For example, in 1975, Queen commissioned the production of a video for its new single, "Bohemian Rhapsody," to show on Top of the Pops, a popular British TV show showcasing the week's top hit songs. In the U.S., Video Concert Hall was launched on November 1, 1979 as the first nationwide video music program on American television, predating MTV by almost three years.

2. MTV and the Birth of the Era of Music Videos on Television
In 1981, MTV launched by airing "Video Killed the Radio Star," and began an era of 24-hour-a-day music videos on television.

The founders of MTV, including Robert Pitman (current chairman and CEO of iHeartMedia, Inc. (formerly Clear Channel)), convinced record labels to produce more videos and give them to MTV for free, just as they gave free records to radio stations. The pitch was that the videos would promote the labels' records and increase sales. The only money MTV paid to the labels was a relatively small fee to secure exclusive rights to play select videos for a limited period of time. For instance, MTV paid Sony Music $4 million a year for such rights.

By the mid-1980s, MTV grew to play a central role in marketing pop and rock music. Many important acts of this period-- most notably Madonna, Aerosmith, The Who, Phil Collins, John Mellencamp, Phil Collins and Billy Idol-- owe a great deal of their successes to the seductive appeal of their videos. After years of controversy regarding the lack of diversity among artists on the network, MTV aired Michael Jackson's "Billie Jean," "Thriller" and other videos, which helped Jackson become the best-selling pop artist of all time.

However, by the late 1990s, MTV sharply decreased the number of videos it showed on its airways. Former MTV president Van Toeffler explained: "Clearly, the novelty of just showing music videos has worn off. It's required us to reinvent ourselves to a contemporary audience." A decade later, MTV was playing an average of just three hours of music videos per day, preferring cartoons such Beavis and Butt-Head and, later, unscripted reality shows, such as Jersey Shore. MTV continued to play some music videos instead of relegating them exclusively to its sister channels (such as MTV Hits), but around this time, the channel began to air music videos only in the early morning hours and in Total Request Live , which aired the 10 most requested music videos of the day. As a result of these programming changes, Justin Timberlake implored MTV to "play more damn videos!" while giving an acceptance speech at the 2007 Video Music Awards. Despite the challenge from Timberlake, MTV continued to decrease its total rotation time for music videos in 2007 and shut down TRL in 2008.

3. YouTube and the Rise of Cover Videos
YouTube was created by three former PayPal employees in February 2005. In November 2006, it was bought by Google for $1.65 billion. The online video sharing site is this generation's MTV. Artists like Beyoncé and Taylor Swift regularly have hundreds of millions of views for new videos, and their record companies and music publishers monetize them by allowing ads. YouTube keeps approximately 40% of the ad income, although the details of its formulas for arriving at the exact amount is not public record, and the balance is paid to the copyright owners.

YouTube allows you to share your videos with a worldwide audience. However, the thing that makes YouTube great for new artists--that it's so easy to upload and reach a huge audience--also makes it incredibly competitive. YouTube reports that hundreds of hours of video content are uploaded to its servers each minute. Unfortunately, therefore, although you have a potential audience of millions who you can directly reach with your video, standing out in the sea of other content is a huge challenge.

One way new artists have used YouTube to attract attention is to "cover," that is, re-record hit songs. A good example of an artist who was discovered from making covers is Justin Bieber. Before he was the erratic "bad boy" that many love to hate, Justin Bieber was just a kid from Stratford, Ontario. At age 12 Bieber began to regularly post covers of hit R&B songs on his YouTube channel under the username "kidrauhl."

As his videos got more and more views, he was eventually discovered by talent manager Scooter Braun. After tracking Bieber down, Braun flew the then-13 year old to Atlanta to record some demo tapes. Braun introduced Bieber to Usher, who reportedly beat out Justin Timberlake in a bidding war to sign the young YouTube star. After being signed by Usher, Bieber recorded his first album, released the single "One Time," and proceeded to have his face put up on tween bedroom walls everywhere. He's had three multi-platinum albums that have all reached number one on the charts, and continues to play to sold-out arenas all across the world.

Another example of how cover videos have launched careers is Vazquez Sound, a musical trio known for its covers of hits, including Adele's "Rolling in the Deep," which has garnered over 172 million views. In September 2014, Vazquez Sounds released its first original album, which was an instant hit that earned a nomination at the 2015 Latin GRAMMYs for "Best New Artist." Another example is the pop duo, Karmin. Karmin broke a couple of years ago with a string of clever, sassy covers of hits by acts such as Lil Wayne, Nicki Minaj, and Katy Perry. Alessia Cara, a 19 year old Canadian singer and songwriter, is another example. She is currently signed to Def Jam and is best known for hit single "Here," which reached the Top 20 in the United States. Before her original album was released, though, Cara was known for her acoustic song covers on YouTube.

4. YouTube Musical Celebrities
Other artists have made careers by producing original content for their YouTube channels. A prime example is Lindsey Stirling. She plays the violin, dances and then does them both at the same time. Stirling began posting videos of herself performing in 2007 after failing to be signed by a major record label. Now, she claims they are begging to sign her, but it's too late--she doesn't need them anymore. Explains Stirling: "It's a very loyal fan base that wants you to succeed because they found you. It wasn't some big radio station or record label that shoved art down someone's throat." Coming in fourth in Forbes' round-up of the most financially successful YouTube personalities, Stirling raked in $6 million in earnings last year. She has also released two albums, "Shatter Me" and "Lindsey Stirling", scored a book deal, and developed a lucrative touring career.

5. YouTube's New Subscription Service
YouTube recently unveiled its long-discussed paid subscription service, "YouTube Red." The new service offers ad-free versions of all current YouTube videos and additional exclusive content from some of the site's top creators, including PewDiePie and Lilly Singh, both of whom perform music as well as comedy. It launched on October 28, 2015 and costs $9.99 per month. YouTube Red will have a big emphasis on music, providing access to music streaming service Google Play Music and a new app called YouTube Music, which offers a Pandora-like personalized playlist based on a selected song or artist. Both music apps also have ad-supported versions that non-Red users can access.

6. Self-Made Indie Videos Launching Careers On Social Media Such As Vine & Instagram
Over the past several years, with the advent of smart phones with video capability, as well as greater connectivity across social platforms, an entirely new phenomenon has occurred with singer songwriters as well as rappers catapulting themselves to recognition and commercial success. They use self-contained performances on social media in addition to, or other than, YouTube. One example is Shawn Mendes. In 2013, when he was 15, Shawn Mendes began posting cover videos on Vine and picked up millions of views. The next year he was signed to Island Records and became the youngest artist to debut in the Top 25 with a song on the Billboard Hot 100.

PART II: LEGAL AND BUSINESS ISSUES

1. Cover Videos
It is legally necessary to get a license from the owner of the song before making a cover video. However, YouTube has developed a system Content ID that deals with this issue. The system recognizes the identity of the cover song and then notifies the publisher. The publisher can then choose to order YouTube to take down the video, or let the video continue to play and "monetize" it. If the latter is chosen, YouTube splits the advertising revenue with the publisher. It is important to note that if the publisher chooses the second option, the artist performing the cover will not receive any of the fees generated by advertising. This, however, is to be weighed against the possibility of worldwide recognition discussed above.

Although Vine and Instagram do not employ Content ID, the music publishers have not, so far, cracked down on covers on these social networks. An argument could be made that the snippets played in these services are "de minimis," i.e., too trivial to amount to copyright infringement. It can also be argued in a litigation defense that these brief videos are "fair use." The argument would be that, under the doctrine of fair use, a person can use a brief excerpt of a copyrighted work if the new work is "transformative" of the original.

2. Work For Hire Production Contract
I was the Director of Business Affairs for TV & Video at Sony Music from 1991 to 2001. We produced over 250 videos each year that I worked there, and every video that Sony commissioned was a "work for hire." Under the copyright law, a work for hire is defined as follows:

(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

In the case of works made for hire, "the employer or other person for whom the work was prepared is considered the author ...[and] owns all of the rights comprised in the copyright."

Recently I worked with a small book publishing company that wished to produce a series of music videos to promote the new edition on one of its religious text books. The videos will feature songs by 12 different Christian rock acts. The agreement that we used to commission the videos was basically the same as Sony's work for hire agreement. I recommend to my artist clients the same business format for the production of their music videos. Re-published below is sample work for hire contract for producing a music video.

3. Releases
If you are either a new artist or a small label, and you wish to create a music video, in addition to using a work for hire agreement, you should also make sure that you will not have legal problems associated later on with any person or location depicted in your video. Although you should always have every side artist, model, dancer or actor in your video sign a release, some judgment is required when determining whether to secure a location release.

Personal Releases: If a label is commissioning a video, the artist's appearance in the video will generally be covered by the recording agreement between the artist and the label, which usually includes a provision specifically addressing music videos and giving the label the right to use the video for any promotional or commercial purpose. If an indie artist is appearing in a video, obviously he or she will not need a release for his or her own performance. Regardless of whether the commissioning party is a label or an artist, it will want to have any other person appearing or performing in the video sign a personal release giving the label or the artist, as the case may be, the right to use the video, including that person's appearance and/or performance in any and all media. Usually, the production company will handle this responsibility.

An example of a personal release is included below. Personal releases do not vary very much, although some contain more legalese than others. The basic point of any personal release, however, is that the person signing the release grants the artist or label all rights to use his or her appearance and/or performance in the video.

Note that the person signing such a release may have recorded the audio performance as a background vocalist or musician. A separate contract usually covers that audio recording, but the release contained below would cover that audio performance as well. Please also note that the release usually does not include financial remuneration; but if a musician, dancer or actor contributed a performance in the underlying audio track, there may be a separate agreement in which that person is compensated.

A cautionary tale about failing to secure proper releases: The producer of a video for an artist at a major record label used a picture of an old girlfriend from her Facebook profile in a spilt second of a still titled "Missing Persons" in a video featuring the artist singing about a romantic break-up. The ex-girlfriend noticed and was not pleased. She retained a lawyer who was able to negotiate a significant settlement.

Crowds and Audiences: If you are shooting in a public place, releases should be given to anyone wandering into the scene if anyone is are recognizable. If a person doesn't want to sign the release, you should avoid using that footage. If you are shooting in front of a live audience, you can use one or more signs at the entrance to the performance area informing the audience members that, by entering, they consent to appearing in the video. The sign (or signs) should be large enough and displayed in a place prominent enough that anyone entering will notice. However, if a person from the audience is featured, or especially if he or she appears on stage, a personal release should be signed.

Location Release: The location release at the end of this article is for a venue that agrees to let you shoot your video at the location without a fee. It is particularly useful if there is a sign or logo that people would recognize. The release will make it clear that no consideration was expected for the use of the location. Of course, sometimes a location, such as a restaurant or bar, will require a fee. In that case, the amount to be paid can be inserted in the release.

Public Places: Generally, if public venues and landmarks, such as the Empire State Building appear in the video, you do not need a release if the location is incidental to the action in the video. If, however, you are shooting in front of a well-known place, such as Nathan's hotdog restaurant in Coney Island, and its name appears prominently in the video, it would be wise to have the manager sign a location release.

4. Trademarks
The use of a trademark in a music video is generally protected by the First Amendment, but not always.

Likelihood of Confusion Test: The limited purpose of trademark protection set forth in the Lanham Trademark Act (15 U.S.C. § 1051 et. seq.) is to avoid confusion in the marketplace by allowing a trademark owner to prevent others from duping consumers into buying a product or using a service they mistakenly believe is sponsored by the trademark owner. Trademark law aims to protect trademark owners from a false perception that they are associated with or endorse a product or service. Generally, to assess whether a defendant has infringed upon a plaintiff's trademark, the courts apply a "likelihood of confusion" test that asks whether use of the plaintiff's trademark by the defendant is likely to cause confusion or mistake, or to deceive as to the affiliation, connection, or association of plaintiff's brand with defendant's product or service.

Applying these principles to music videos, the bottom line is that if a trademark is used in such a way that it is not likely to confuse a viewer into thinking that the brand sponsored the video, the producer may have a First Amendment right to use the mark (notwithstanding any licensing issues). The classic example is a rapper wearing a baseball cap or t-shirt. Just because the singer may be wearing a Yankees cap or Baltimore Orioles t-shirt doesn't mean that a reasonable person would think that the Yankees or Orioles sponsored or produced the video.

On the other hand, where a trademark is prominently featured, it may be reasonable to think that a brand is sponsoring the video. For instance, a number of brands are featured in the video for "Telephone" featuring Beyoncé and Lady Gaga. Yet in that case, the brands were actually sponsoring the video by paying for product placement. In fact, these days, many indie artists use brands to help pay for or at least defray the costs of their videos. However, if you have not received approval or received a sponsorship from a brand, it is important not to lead your viewers to believe that you have by drawing too much attention to the brand in your video.

Product Disparagement: This is also called product defamation, trade libel, or slander of goods; product disparagement is any statement about a brand that is false and likely to adversely affect its profits. Product disparagement includes negative statements about a product or service, false comparisons of competing consumer products or services, and statements harming the reputation of an artist.

When applying these principals to a music video, it is important to note that showing a brand's name or logo in a negative context could prompt a demand that the video be changed or not shown at all. Consider this real world example: A record label made a video in the early 1990s, when MTV was still playing videos, of a toy train running off the track and smashing into small models of people made of clay. During the video, close-ups of the artist as the conductor of the wayward train would appear. The video was lighthearted, and no one would think that the artist/conductor was actually running over real people. However, the name of the well-known U.S. railroad appeared on the toy train, and its representatives were less than amused. In fact, they sent a letter to MTV demanding that it stop playing the video. The label agreed to take the name off the toy train by blurring it, but the railroad still insisted that the video be banned because the color of the toy train--a particular shade of yellow--was the same color as its actual trains. The label reacted by changing the entire color of the video to sepia, which made the toy trains a different shade of yellow. Yet the railroad still had a problem because the cars were still yellow. The label defiantly re-released the video. However, the railroad company initiated a lawsuit against the label and was able to persuade a federal judge to permanently enjoin the further exhibition of the video on MTV and any other outlet. Later, the label settled the suit by paying damages to the railroad, in addition to agreeing to never use the video for any purpose again.

5. Artwork and Other Copyrighted Works
A best practice is to avoid using material protected by copyright. This will save you a lot of headaches, and possibly money. The case of Ringgold v. Black Entertainment Television is an important case in this regard. In the late 1990s, Faith Ringgold, a successful contemporary artist, sued BET for airing an episode of a television series called ROC in which a poster containing her artwork appeared. In the scene, at least a portion of the poster was shown a total of nine times. In some of those instances, the poster was at the center of the screen, although nothing in the dialogue, action, or camera work particularly called the viewer's attention to it. The nine sequences in which a portion of the poster was visible ranged in duration from a little more than one to four seconds. The aggregate duration of all nine sequences was approximately 27 seconds.

The case was decided by a federal appeals court in New York. The court found BET liable, rejecting the de minimis defense. As already noted in the section on "Cover Videos" above, if the amount of a work copied is so trivial as to fall below the quantitative threshold of substantial similarity, the copying is de minimis, and does not constitute copyright infringement. However, the court found that in addition to its appearance in the scene, there was also a qualitative connection between the poster and the show. The poster included a painting depicting a Sunday school picnic held by the Freedom Baptist Church in Atlanta, Georgia in 1909, and was intended to convey "aspects of the African-American experience in the early 1900s." ROC was a television sitcom series about a middle-class African-American family living in Baltimore, and the scene in question was of a gathering in a church hall with a minister.

In contrast to Ringgold, the case of Sandoval vs. New Line Cinema Corp stands for the proposition that use of copyrighted artwork in the background of a scene may be de minimis.

In Sandoval, the same court that decided the Ringgold case, found that the use of the plaintiff's copyrighted photographs in the motion picture "Seven" was de minimis and therefore not actionable. The photographs appeared in the film for a total of 35.6 seconds, but they were always in the background and never in focus. The court found that the "photographs as used in the movie [were] not displayed with sufficient detail for the average lay observer to identify even the subject matter of the photographs, much less the style used in creating them." The court distinguished the facts from Ringgold because there was no substantive connection between the appearance of the photos and the subject matter of the scene.  

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The agreement below contemplates that an artist is hiring a production company to produce a promotional video. The same form of agreement may be used by a record company. An artist may consider forming a corporate entity (i.e., C corporation, Subchapter S or LLC) in order to avoid any personal liability in regard to any agreement including a video production agreement. In addition, an artist would be wise to consult with an accountant or attorney about forming an LLC or S corporation for tax purposes including eligibility to deduct video expenses from his or her personal income.

DISCLAIMER
This form has been created for informational purposes only and does not constitute legal advice. You should consult an attorney before making any such legal agreements.


VIDEO PRODUCTION AGREEMENT


This agreement ("Agreement"), effective as of _____, 2016, is between __________ ("Artist") with an address of __________________, and _____________ ("Producer"), with an address at _____________________________.

WITNESSETH:

WHEREAS, Producer has recognized expertise in video production; and

WHEREAS, Artist wishes to engage Producer to record a music video featuring Artist performing a song titled "_____________" (the "Video").

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:

1. PRODUCTION SERVICES

1.1. Producer shall provide Artist with the video recording and production services (hereinafter "Production Services") described within this Agreement.

1.2. Principal photography shall begin on ____________, 2016. Producer shall make Delivery, as defined herein, of the Video to Artist no later than _________, 2016. "Delivery" shall consist of delivery of (i) a fully edited sound synchronized video master, and (ii) all other recorded elements created during production, including but not limited to all audio tracks, video footage and outtakes. Delivery will not be deemed to have occurred until Artist accepts the Video as suitable for commercial exploitation.

1.3. Producer shall provide the Production Services to Artist promptly with the degree of skill, attention and due care that is standard practice within the professional Production Services industry.

1.4. Producer and Artist agree that the budget attached in Schedule A shall represent 100% of the funds required to produce the Video (hereinafter "Budget"). This amount represents the Producer's total anticipated costs and profit.

The Budget should include all costs for producing the video including producer and director fees as well as post production editing costs. For examples of music video budgets ranging from "shoestring" to "commercial/studio" budgets, see http://garrettgibbons.com/music-video-budgets.


1.5. If the Producer hires a director (hereinafter "Director"), the Director shall be an employee of the Producer for purposes of the production and Delivery of the Video.

1.6. All employees and representatives of Producer providing the Production Services hereunder to Artist during the Term of this Agreement shall be deemed for all purposes (including all compensation, taxes and employee benefits) to be employees or representatives solely of Producer, and not to be employees or representatives of Artist or to be independent contractors of Artist.

1.7. The Video shall depict content to be included in a treatment or script to be approved by Artist prior to principal photography.

2. GRANT OF RIGHT: WORK MADE FOR HIRE

This clause transfers all rights to the person (or company as the case may be) commissioning the Video.


2.1. Production Services provided by the Producer and any other person providing such Services shall be deemed to be provided on a "work made for hire" basis as that term is defined under the U.S. copyright law. The Video and all other materials created or contributed by the Producer including all footage, outtakes and audio tracks (the "Materials"), shall be the sole property of Artist throughout the universe, free from any claims whatsoever by Producer; and Artist shall have the exclusive right to register the copyright(s) in such Materials in her name as the owner and author thereof and to secure any and all renewals and extensions of such copyright(s).

2.2. Without limiting the generality of the foregoing, Artist and any person authorized by Artist shall have the unlimited exclusive right, throughout the universe, to manufacture or create copies of the Video or any other Materials by any method now or hereafter known, or any work derived from the Video or the Materials and to sell, market, transfer or otherwise deal in same under any trademarks, trade names and labels, or to refrain from such manufacture, sale and dealing.

2.3 Artist or any Person authorized by Artist shall have the right throughout the universe, and may grant to others the right, to reproduce, print, publish, or disseminate in any medium the name, portraits, pictures, likenesses and biographical material concerning Producer and Director any other person providing Production Services, as news or information, or for the purposes of trade, or for advertising purposes, in connection with promotion marketing and sale of the Video. As used in this Agreement, "name" shall include, without limitation, any professional names.

3. COMPENSATION

3.1. The Parties agree that the Effective Date of this Agreement shall be as set forth at the beginning of this Agreement (hereinafter "Effective Date"). The parties acknowledge that the total amount of the attached Budget is___________ Dollars ($_____). Within five (5) days of the Effective Date, Artist shall pay Producer 50% of the Budget, that is, _________ Dollars ($_____). The second payment of 25%, that is, _________ Dollars ($_____), shall be due upon completion of principal photography. The third and last 25% payment of ________ Dollars ($_____) shall be due upon Delivery of the Video and other Materials to Artist.

3.2. Overages. In regard to overages to the Budget, Producer shall not charge Artist any monies in addition to the approved Budget without Artist's prior written approval.

4. NOTICES

Notices, reports, accountings or other communication which Producer or Artist may require or desire to send to the other must be delivered either by:

Certified mail, return receipt requested to the parties at the addresses first written above or other address to be designated by Producer or Artist as the case may be; or

Electronic mail at the following addresses:

(i) for Artist: _________@___.com
(ii) for Producer: ___________@___.com

5. ASSIGNMENT

Producer may not assign this Agreement or any right or obligations under this Agreement. Artist may assign this Agreement or any of her rights or obligations hereunder to any person, firm, or corporation including a corporation in which Artist is a principal, provided that (i) Artist shall remain responsible for any payments required to be made under this Agreement, and (ii) the assignee has the necessary cash on hand to make any payments required under this Agreement.

6. WARRANTIES AND INDEMNIFICATION

6.1. Producer warrants and represents that he has the legal right to enter into this Agreement including the legal right to sign on behalf of the Director. Producer further warrants and represents that (a) all content contributed by the Producer shall be original and not interfere with or violate any rights of any third party; and (b) no content appearing in the Video, including artwork or photography, will interfere with or violate any rights of any third party.

6.2 Producer warrants and represents that he shall provide valid signed releases from any third party performing or appearing in the video, and that he shall, if legally required, secure valid signed location releases from any location appearing in the video. Acceptable forms of release are attached hereto as Schedule "A" and "B" respectively.

The attached releases may be used as Schedules A and B. Note that the releases allow the Producer to assign the rights secured in the releases to the Artist.

6.3. Producer and each of his representatives, employees, contractors, agents and representatives hereby release, indemnify and agree to hold harmless Artist and her agents and representatives from and against any and all losses and/or damages which arise out of the Production Services.

7. TERMINATION

Artist may terminate this Agreement upon written notice in the event of a material breach by Producer, including late delivery of the Video, if such breach is not cured within __ days of notice thereof. If such breach is not cured within that time, Producer shall not be entitled to any additional payments and, upon notice by Artist, Producer shall refund to Artist any monies previously paid.

8. MISCELLANEOUS

8.1. Governing Law. This Agreement shall be interpreted under the laws of the state of ________ without regard to its choice-of-law rules, and the parties shall submit to the exclusive jurisdiction of the courts of that state.

Since the Artist is the party paying money in this Agreement, the Artist should have the right to decide in which state any dispute arising from the Agreement should be litigated.

8.2. Relationship of Parties. Producer and Artist shall have the relationship of independent contractors. Nothing herein shall be construed to place Producer and Artist in the relationship of principal and agent, employer and employee, master and servant, partners, or joint venturers, and neither party shall, either expressly or by implication, have represented themselves as having any authority to make contracts in the name of, or binding on, each other, or to obligate the other in any manner.

8.3. Complete Agreement. Producer and Artist acknowledge that this Agreement represents the complete and exclusive statement of the agreement between the Producer and Artist with regard to the subject matter herein, and that it supersedes any proposal or prior agreement, whether oral or written, and any other communications between the Parties relating to the subject matter of this agreement.

8.4. Enforcement. If any provision of this Agreement shall be found invalid or unenforceable, then such provision shall not invalidate or in any way affect the enforceability of the remainder of this Agreement.

UNDERSTOOD AND AGREED:

[ARTIST's NAME]

_______________________________


[NAME OF PRODUCER]

_______________________________

SS #____________________________


If the Producer is a production company or LLC ("Production Company"), the president or managing partner should sign the personal guarantee below:


In order to induce Artist to enter into this Agreement, I hereby agree and acknowledge that (a) I have read all of the terms and conditions set forth in this Agreement; and (b) I shall be personally bound by all the terms and conditions in this Agreement applying to the Production Company, and that I shall be personally liable for any breach of this Agreement by Production Company.

PRESIDENT OR MANAGING PARTNER

_______________________________
Print Name: _____________________
Position: ________________________

PERSONAL RELEASE

To ______________ ("Producer")
Address

I understand that Producer is producing a video containing the performance of a song titled "_____________" (the "Video").

For good and valuable consideration, including my desire to appear in the Video, I irrevocably grant to Producer, his licensees and assigns the right to film, videotape, portray and photograph me, my likeness and my performance, and to record my voice and other sound effects, and the right to use them or any portion thereof, and my name and any biographical facts which may have been provided to Producer, in connection with the production of the Video and the advertising, promotion and publicity therefor, and all rights of every nature whatsoever in and to all films, video, portrayals, photographs, performances and recordings produced hereunder ("Material"), including without limitation all copyrights therein and renewals and extensions thereof, and the exclusive right to reproduce, exhibit, distribute and otherwise exploit the Material in whole or in part in perpetuity throughout the universe in all languages, in any and all versions (including digitized versions) and forms, and in any and all media now known or hereafter devised. Independently and apart from any consideration accruing to me hereunder, I hereby release Producer and Producer's authorized designees from, and covenant not to sue Producer and Producer's authorized designees for any claim or cause of action, whether known or unknown, for libel, slander, invasion of right of privacy, publicity or personality, or any other claim or cause of action, based upon or relating to the exercise of any of the rights referred to herein. I understand that nothing herein will require Producer or Producer's designees actually to produce or utilize any Material hereunder.

This grant is irrevocable so that Producer may proceed in reliance thereon. This instrument contains the entire understanding of the parties, may not be changed or terminated except by an instrument by Producer and me and will be construed in accordance with the laws of the State of ______, provided that the courts of the state of __________ shall have exclusive jurisdiction to resolve any disputes arising from this Release.


Dated:______________________

Authorized Signature

______________________________
[Print name]


LOCATION RELEASE

Property Owner: [Name]
Address: ___________________________ _
Phone: ____________________________ Fax: _______________________________
Email: _____________________________ Contact: ____________________________

Producer: [Name]
Address: _____________________________
Phone: _____________________________ Fax: ______________________________
Email: ______________________________ Contact: _____________________________

Your signature in the space provided below as owner or agent, will confirm the following agreement ("Agreement") between you as the Property Owner ("Owner") and Producer regarding filming of your property (the "Premises") described below in connection with a video containing the performance of a song titled "_____________" (the "Video").

1. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Owner hereby grants to Producer the right during the Term (as defined below) hereof to photograph and record at, the Premises (including, without limitation, the right to photograph and record both the real and personal property, all of the signs, displays, exteriors, and the like appearing therein, if any) for the period specified below.

2. As used herein, the term "Premises" refers to the premises located at: __________________________________________________________________

3. The term hereof (the "Term") shall commence from __________am/pm to ____________ am/pm on or about ____________________________ and shall continue until _________________________, unless modified by the parties. The Term shall be subject to modification due to changes in production schedules. Owner agrees to consult closely with Producer's representatives to ensure scheduling is arranged which will allow for completion of the scenes planned to be included in the Video using the Premises. Owner acknowledges that Producer is incurring significant expenses in reliance on Owner's cooperation and participation in connection with this Agreement and that Owner may be held responsible for the actual and/or consequential damages incurred by any breach of this agreement.

4. Owner represents and warrants that: (a) Owner has the right and authority to make and enter into this Agreement and to grant Producer the rights set forth herein, without obtaining any consents or permissions from any third party; and (b) Owner shall take no action, nor allow or authorize any third party to take any action which might interfere with Producer's authorized use of the Premises. Owner hereby waives all rights of privacy or other rights of a similar nature with respect to Producer's use of the Premises. Owner shall indemnify Producer, his licensees and assigns, and their parent, affiliate, and related entities, shareholders, directors, officers and employees from and against any breach or claim of breach by Owner of any representation, warranty, agreement or obligation herein.

5. Producer shall leave the Property in as good condition as when received, reasonable wear and tear to be expected. Producer shall remove all of his material, equipment and personnel from the Property.

6. Producer agrees to indemnify and hold Owner harmless from damage to the Premises and property located thereon and for personal injury occurring on the Premises during the Term and from any liability and loss which Owner may incur by reason of any accidents, injuries, death or other damage to the Premises directly caused by Producer's negligence in connection with his use of the Premises. In connection therewith Owner must submit to Producer, within three (3) days after Producer vacates the Premises, a detailed list of any property damage or personal injuries which Owner feels Producer is responsible, failing which Owner will be deemed to have acknowledged that there is no property damage or personal injuries for which Producer is responsible. Owner shall permit Producer's representatives to inspect any damaged property and to verify any claims for damages by Owner.

7. Nothing shall obligate Producer to photograph, to use such photography, or to otherwise use the Premises. Producer shall have the right to photograph, record and depict the Premises and/or any part or parts thereof, accurately or otherwise, as Producer may choose, using and/or reproducing the actual name, signs, logos, trademarks and other identifying features thereof and/or without regard to the actual appearance or name of the Premises or any part or parts thereof, in connection with the Video.

8. a. Owner acknowledges that, as between Owner and Producer, Producer is the copyright owner of the photography and/or recordings of the Premises, and that Producer, his successors and assigns have the irrevocable and perpetual right, throughout the universe, in any matter and in any media to use and exploit the films, photographs, and recordings made of or on the Premises in such manner and to such extent as Producer desires in his sole discretion without payment of additional compensation to Owner. Producer and his licensees, assigns and successors shall be the sole and exclusive owner of all rights of whatever nature, including all copyrights, in and to all films, programs, products (including interactive and multimedia products), photographs, and recordings made on or of the Premises, and in the advertising and publicity thereof, in perpetuity throughout the universe.

b. The Owner hereby gives to Producer, his assigns, agents, licensees, affiliates, clients, principals, and representatives the absolute right to use any names associated with the Property in the Video, or to promote the Video, all without inspection or further consent or approval by the Owner.

9. Producer may assign or transfer this Agreement or all or any part of his rights hereunder to any person, film or corporation; Owner agrees that Owner shall not have the right to assign or transfer this Agreement.

10. From the date of execution of this Agreement, through and including the date this Agreement may be terminated, Producer shall keep or cause to be kept in force the following insurance:
Commercial General Liability Insurance, including public liability, contractual liability, bodily injury, and property damage insurance, each policy with a combined single limit of bodily injury and property damage liability of $1,000,000.00 per accident or occurrence. Owner shall be an additional insured. The policies shall provide that they cannot be canceled or reduced without thirty (30) days prior written notice to Owner.

All insurance policies required hereunder shall be with companies having at least a Best A+10 rating as of the date of issuance of the policy, and shall contain language to the extent obtainable, to the effect that (i) any loss shall be payable notwithstanding any act or negligence of Owner that might otherwise result in a forfeiture of the insurance, (ii) that the insurer waives the right to subrogation against Owner and against Owner's agents and representatives, including Owner's insurers, (iii) that the policies are primary and non-contributing with any insurance that may be carried by Owner. Producer shall furnish Owner with certificates evidencing the insurance on or before ______________________. All certificates of insurance required herein, and exclusions from coverage in all policies, and the actual liability policies are subject to the approval of Owner's counsel.

Insurance should be obtained if shooting is to occur inside a location such as a store or someone's house. The cost of the insurance should be included in the Budget for the Video.

11. This Agreement constitutes a binding agreement and is the entire agreement among Producer and Owner and supersedes all prior negotiations and communications, whether written or oral; representations and warranties, whether written or oral; and documents and writings, whether signed or unsigned, with respect to the subject matter hereof.

APPROVED AND ACCEPTED:

Owner or Owner Representative
Signature: _________________________
Print Name: _________________________

Producer or Producer Representative
Signature: _________________________
Print Name: _________________________

September 13, 2016

AME Awards® 2017 Competition

The AME Awards® competition is now accepting entries for the 2017 competition. Since 1994, the AME Awards® has honored campaigns worldwide that successfully demonstrate groundbreaking solutions to challenging marketing problems.

"The 2017 AME Awards® continues its 23-year tradition of showcasing brilliant creative delivering measurable results," said Deb Ryan, newly appointed Executive Director of the AME Awards®, "and AME diligently monitors the industry to provide relevant categories that mirror evolving creative industry trends across all platforms."

For 2017 competition, the AME Awards® unveiled a new category to showcase Olympic-themed advertising and marketing created for the 2016 Summer Olympics in Rio. This additional category compliments AME's robust category roster that included Technology in the Product & Services category group, which was added last year to showcase digital advertising and marketing applications utilized within the advertising industry to drive consumer engagement. The AME Awards rigorous monitoring of global technological advancements led the competition to previously launch categories in Augmented Reality and Social TV.

"AME's global Grand Jury is comprised of five regional juries, allowing entries to be judged with cultural relevance within their own region by jurors with the most up to date knowledge of that particular market.", said Ms. Ryan. "Entrants can be sure that their creative work is given the utmost attention and that all award-winning work is worthy of being called the World's Best Advertising & Marketing Effectiveness℠."

The AME Awards® Grand Jury is responsible for awarding Gold, Silver, and Bronze to the highest scoring entries through two rounds of regional judging to ensure scoring accounts for cultural and economic relevance. The Grand Jury also selects the AME Green Award winner -- the highest scoring, Gold-winning entry for a company whose emphasis is on resource conservation and negative environmental impact. Gold-winning works from all regions are judged by the full international Grand Jury to determine a Platinum Award for each of the five regions (North America, Latin America, Europe, Middle East & Africa and Asia Pacific) and the International Grand AME Award.

The 2017 AME Grand Jury of interactive and multidisciplinary marketers, media planners, strategy directors, social media experts, and creative directors will evaluate entries based on four specific criteria, each weighted by importance: Challenge/Strategy/Objectives - 20%; Creativity - 25%; Execution - 25%; and Results/Effectiveness - 30%.

In 2016, the AME Grand Jury presented the AME Grand Award and Regional Platinum Award/Europe to Grabarz & Partner/GGH Lowe Germany for its campaign "Nazis Against Nazis - Germany's Most Involuntary Charity Walk" for client ZDK Zentrum Demokratische Kultur. Leo Burnett Melbourne earned 2016 AME Regional Platinum Award/Asia-Pacific for "#MyFamilyCan" for client SPC. BBDO New York was honored with the 2016 AME Regional Platinum Award for "Vines in the Real World: Making the Digital Analog" for client Lowe's Companies. Impact BBDO Cairo earned the 2016 AME Regional Platinum Award for "Everyday Hero" for Sting, PepsiCo's energy drink.

The deadline to enter the 2017 AME Awards is October 31, 2016. Entry details and competition rules and regulations can be found on the AME website, at www.ameawards.com.

March 15, 2018

De Havilland v. Pacific 2.1 Entertainment Group, Inc. et al

By Pamela Jones

Oral argument in De Havilland v. Pacific 2.1 Entertainment Group, Inc. et al will take place on Tuesday, March 20, 2018, at 1:30 pm, before the California Court of Appeals Second Appellate District Division 3. Appellants and amicus curiae in support of the Appellants will go first followed by the Respondents and amicus curiae in support of Respondents. Special arrangements have been made for oral argument in this case to be presented to the court at University of Southern California's Gould School of Law. Appellants were unsuccessful in their effort to have the case dismissed under California's Anti-SLAPP statute, and filed a notice of appeal on October 10th. On October 26th, the Court granted De Havilland's attorney's request for "calendar preference" and directed the parties to submit briefs, on an expedited basis, no later than December 26, 2017. De Havilland, whose age is 101, resides in France and is not expected to attend in person.

All eyes are focused on the outcome of this highly-visible California "right of publicity" case, and its potential impact on depictions of real people in docudramas and "biopics", as well as Porco v Lifetime Entertainment Serv., LLC case, a New York case that similarly challenges First Amendment protection of expressive works and statutory case law. Amicus curiae briefs in support of the Appellant have been submitted by Netflix, Electronic Frontier Foundation, Motion Picture Association of America, Organization of Transformative Works, Wiki Media Foundation, and a group including A&E Television Networks, LLC, Discovery Communications LLC, Imperative Entertainment LCC, Urban One Inc., Critical Content LLC, the Reporters Committee for Freedom of the Press and the First Amendment Coalition. An amicus curiae brief in support of the Respondent was submitted by SAG/AFTRA.


June 25, 2018

New York Right of Publicity Bill Passage Drama Ends With No Action by State Senate

By Judy Bass
Chair, Right of Publicity Bill Subcommittee
Member, EASL Executive Committee

A controversial New York right of publicity bill came very close to being enacted by the New York State legislature last week. The New York State Assembly passed the bill (A. 8155-B) by a vote of 131-9 on Monday night, June 18, 2018. The question then was whether the New York State Senate would vote on the companion bill (S.5857-B) before the legislative session ended on Wednesday, June 20th. The Senate adjourned, however, at 1:30 a.m. Thursday morning without taking up the bill. The bills would have dramatically modified New York Civil Right Law, Sections 50 and 51, which currently provide only for a right of privacy under New York law, not a descendible right of publicity as has been enacted in certain other states.

SAG-AFTRA led the effort to enact the legislation. After passage of the bill by the New York State Assembly, SAG-AFTRA posted on its website a statement saying the following: "Today's historic vote supports an incredibly important 34-year campaign by the performance community giving families the right to prevent unwanted commercial exploitation of their deceased loved ones. A.8155-B better protects individuals from unwanted image and voice manipulation and unauthorized advertisements, while prohibiting deepfake pornography, and clarifying the digital replica rights of entertainers. The bill extends rights to survivors 40 years past death."

The SAG-AFTRA statement went on to say that the proposed bill protects performers while "maintaining the free speech rights afforded to the media and content creators." https://www.sagaftra.org/sag-aftra-statement-passing-new-york-assembly-bill-a8155-b.

A large contingent of the media community, however, strongly disagrees with that assessment. Statements in opposition to the Assembly and Senate bills were submitted by a wide range of organizations and companies, including the Motion Picture Association of America (MPAA), Getty Images, the New York State Broadcasters Association, the Electronic Frontier Foundation, the Digital Media Licensing Association, the Entertainment Software Association, the Media Coalition, Disney, Warner Bros. Entertainment, and Viacom.

Professor Jennifer Rothman of Loyola Law School, an expert on the right of publicity, on her blog post opposing the amended version of the bill introduced in early June, strongly criticized the "ill-thought-out right of publicity bill" being pushed through the Assembly without allowing for hearings and public debate. She further stated that the bill "jeopardizes a vast array of creative works and biographical works" and grants a "windfall to heirs of dead celebrities without ever justifying why they should receive one at the expense of the public." She also called out the "estate tax danger that can force the commercialization of the dead against both their and their families' wishes", and that the bill "opens the doors of New York courts to all plaintiffs regardless of their domicile." She concluded by saying the following: "New York need not revise its current law which is working just fine. Nevertheless, if New York State wishes to extend postmortem protection and to address concerns over the use of digital avatars to replace actors, it should propose distinct, narrower, and more carefully drafted statutes to address these issues." https://www.rightofpublicityroadmap.com/news-commentary/new-york-right-publicity-bill-resurrected-again.

The New York State Bar Association Committee on Media Law, chaired by Sandra Baron, submitted a detailed report on the bill, including a history of the current right of privacy in New York. It noted that New York Civil Rights Law Sections 50 and 51, on the books since 1903, "have been strictly construed in New York, favoring the right to freely publish about persons based on State Constitutional and First Amendment principles and only restricting the publication in clear cases where the use of the personality's image or likeness is for purposes of advertising or trade." It urged the state legislature not to make wholesale changes to the law "without significant public input" and to amend the current law only "with careful weighing of the costs to this historical legal structure." The report was approved by New York State Bar Association and submitted to the New York State legislature last week. It is available here (Media Memo #3): https://www.nysba.org/CustomTemplates/SecondaryStandard.aspx?id=73536.

It is not known whether the bills will be re-introduced next fall. If so, we should urge our state legislators in both houses to conduct a more open and complete discussion of the issues and evaluation of the impact of the legislation, including public hearings, and to implement additional necessary changes before moving forward again on this controversial legislation.

About Publicity

This page contains an archive of all entries posted to The Entertainment, Arts and Sports Law Blog in the Publicity category. They are listed from oldest to newest.

Privacy and Media is the previous category.

Theater and Performing Arts is the next category.

Many more can be found on the main index page or by looking through the archives.