Digital MoviemakingRights…

Camera…

Action!

Websites • IMDB: movie information database

http://www.imdb.com/

• YouTube: movie clip databasehttp://www.youtube.com/

• U.S. Copyright Ofc: Copyright Introhttp://www.copyright.gov/

• Protecting Characters:http://www.publaw.com/fiction.html

http://www.ivanhoffman.com/characters.html

• Unsolicited Ideas:– http://www.moviepitch.com/

What Laws impact Moviemaking?• Employment, Supply Chain &

Outsourcing– Screen writers, actors, extras, film

crew, 3d Parties, distribution, video sales, TV broadcast

– All involve rights transfers & new duties

• Intellectual Property (IP)– Copyright– Trademark– Trade Secrets

• Privacy Law

Does Intellectual Property (IP) Matter?• Protecting your “Work”

– Studios demand & profitable business models require “monetizable” rights

• Protecting your ”Self” & your Organization– Infringement risk management – Many creators transform from others’– Employees, 3d party service providers & sub-

contractors also transform

• Or…Red Hot Chili Peppers’ Motto– “Give it away, give it away, give it away, give it

away, now”– But even P2P has a business model

• Paid for by banner ads, referrals, PII dossiers

– There are limits to P2P’s “15 minutes of fame”

Rights, Physical & Technical Security • Music Industry

– Owned or locked up all vinyl presses – Analog audio tape threatened – CD burners & P2P really hurt

• Movie Industry– Developed the film, locked up the reels– Control the projection of films– Videotaping – DVD burning restricted by h/w & s/w

• TV Industry– Lock on all broadcast transmitters– FCC Licenses & network distrib control

Overview of Intellectual Property • Copyrights: expression• Trade Secrets: information, ideas• Unfair Competition • Trademarks & Trade Dress: symbols • Patents: inventions, processes • Sui Generis Protections:

– Semiconductor chips, asexual plants, designs, petty patents, Databases, boat hull design

• See: http://faculty.ist.psu.edu/bagby/IP-COMPR.pdf

Trade Secrets• Information

– EX: formula, pattern, compilation, program, device, method, technique, process, data,script idea

• Derives independent economic value – From Secrecy, or – If competitor uses a proper means to

discover the information, and

• Subject of reasonable efforts, under the circumstances, to maintain secrecy

• Databases protectable as Trade Secrets

Submission of Unsolicited Ideas • Is it Sensible to Pitch Your Idea for a

Movie, TV, Game, Book to a Studio or Producer?

• Does an innovator have any rights to compensation if another uses their ideas?

• Unsolicited ideas are a gift to the recipient• The blurter loses – unless:

– Express contract: offer, acceptance, consideration

– Implied contract from conduct or context • Course of performance/dealing, usage of trade

– Unjust enrichment under quasi-contract – Confidentiality & trust relationship

Submission of Unsolicited Ideas • The Idea must have Certain Properties

– Novelty– Concrete - Sufficiently definite to implement

• Many recipients simply refuse to “listen” or consider – Evaluation is Costly – Could complicate if already under development

in-house – Independent Evaluation is Possible– Google this: “submission of unsolicited ideas” EX:http://www.apple.com/legal/policies/ideas.html

Copyrightable Subject Matter • Originality

– Min. personal creativity/intellect required

• Work of Authorship

• Expression

• Fixation in Tangible Medium

• Not Protectable under Copyright:– Ideas, Facts, Data

Trademark Protection• Word, Name Symbol, Device

– Recently: color, sound, smell, fictional characters

• Identifies Source of Goods or Services – Distinguishes from competitors

• From Unfair Competition (Palming off) • Protection Schemes:

– State C/L, misappropriation, unfair competition

– Federal registration under the Lanham Act– Int’l: Paris Conv, Madrid Arrange, Pan-Am

Distinctiveness• Capacity to distinguish owners

goods or services

• Scale from Descriptive to Distinctive

• Scale of Increasing Protectability & Decreasing Distinctiveness– Generic – Descriptive – Suggestive – Arbitrary or fanciful

Privacy Rights Under State Law• Four major common law privacy rights

– (1) intrusion upon seclusion,

– (2) public disclosure of private facts

– (3) false light

– (4) misappropriation.

• Most exist in some form in all 50 states, largely by common law precedent

• A few states have codified into statutory provisions

Intrusion upon Seclusion• Section 652B of the Restatement

(2d) of Torts is most common form of the intrusion tort that protects the sanctity of the “right to be let alone.”

• Individual must prove three elements:– (1) The intruder intended to intrude– (2) There was a reasonable expectation of

privacy under the circumstances – (3) The intrusion is substantial and therefore

highly offensive to a reasonable person.

Public Disclosure of Private Facts • Section 652D of the Restatement (2d) of

Torts has been called an extension of the tort of defamation

• Prohibits only highly offensive and broad-based disclosures of highly embarrassing & private facts, not newsworthy – Individual whose private facts are revealed is

seldom successful

• Courts balance the media’s 1st Amendment rights to exercise news judgment in determining the public’s interest in the facts

False Light • False light tort prohibits

– Making a false connection between • A person and illegal, immoral or

embarrassing activity • This link causes injury to the person

• Similar to Public Disclosure of Private Facts

Misappropriation• Right of publicity

– a/k/a: Personality Right, Appropriation Right, Misappropriation

• Resembles a property right in one’s own personality – Protects individual’s right to control

commercial exploitation through endorsement

• Resembles misappropriation of Trade Secrets– In some states the misappropriation

right does not survive the individual’s death giving no rights to next of kin

Types of Copyrightable Works

Literary worksLiterary works

Architectural worksArchitectural works

Sound recordingsSound recordings

Motion pictures and A/V works

Motion pictures and A/V works

Pictorials, graphics, and sculptures

Pictorials, graphics, and sculptures

Musical worksMusical works

Dramatic worksDramatic works

Pantomimes and choreography

Pantomimes and choreography

Non-Copyrightable Materials• Ideas are not copyrightable

– Only the expression of ideas– Includes ideas, procedures, processes,

systems, methods of operation, concepts, principles, or discoveries.

• The idea-expression dichotomy rule – Creators, authors, writers can control

ideas only if they qualify as patentable or remain trade secret

Bundle of Rights under Copyright • Reproduce: make copies, fixation• Derivative Works: editorial change or adapt to

other market, medium • Distribution: sale, rental, loan, gift, transfer

for- or not-for-profit• Display: public viewing using mechanical

means• Performance: recite, render, play, dance, or

act directly or w/ device (projector, PA) • License: temporary, revocable right to use • Assignment: permanent, transfer of

ownership of some or all in bundle• Digital Transmission: on demand broadcast

of sound recording

Copyright Procedures • Easy/inexpensive compared to patent

– Arises automatically when fixed in a tangible medium of expression

• EX: printed, recorded, photographed, sculpted, formed, saved

• Registration & Deposit w/ Copyright Ofc – Technical adv. if regis. w/in 5 yrs of pub– Problems: software code has trade

secrets – No longer prerequisite to infringement

suit or moral rights

Moral Rights • The Moral Rights Principle:

– Author or owner retains right to prevent: • Distortion, mutilation or modification

– Author’s discretion to permit derivative works • May consider damage original’s artistic integrity, &

author’s reputation or honor

• Much Stronger in Europe than in U.S. – Berne Convention & U.S. implementation – Alternate U.S. bases: trademark & privacy

• Artistic control may be retained by contract, veto right over scripts, particular actors or musicians, require re-shooting …

Fair Use Exception • Infringement Excused, even w/o

Permission: – Criticism, comment, news reporting,

parody, teaching, transformation, scholarship or research.

• Fair Use Factors: – Purpose & character of use – Nature of copyrighted work – Amount & substantiality used

• In relation to original

– Impact on original’s potential market & value

Fair Use: Parody• Parody

– EXs: 2 Live Crew’s Pretty Woman,” Weird Al Yankovic’s works,

• Most Famous Remake: Shakespear’s Romeo and Juliet…West Side Story http://www.rit.edu/~423www/

performing_arts/comparerj.html

Copyright Ownership • Author Presumed to Hold Bundle • Unless Commissioned as a Work

Made for Hire – Prepared by emp’e w/in scope of empl – Employer or commissioner of work

owns • EX: Microsoft owns all employee

programmer’s code

• Joint Works - Multiple Owners if: – Contributions inseparable

Notice: © 2001 by John W. Bagby

• Pre-1976 revision: notice required on all visually perceptible copies, unless cured, copyright was lost, still governs events before 1989.

• Post 1976: precludes infringer w/ access to original making assertion of innocent infringement

• Notice may deter infringement • Also: copr. or copyright

Duration • Post-1977 Works

– Life of author + 50 yrs – Works made for hire -

• 100 yrs. from creation or 75 yrs from 1st pub.

• Pre-1978 registered works - 28 years– Renewable for another 28 yrs.

• Pre-1978 unregistered works - only C/L – No life+50

Infringement Analysis• Copying or the Violation of any 1

right in the Bundle• Proof of Copying - Expert Testimony

– Access to original suggests copying possible & explains similarities

• Proof of Illicit Copying - No Experts – Substantial similarity in expression

only – Idea-expression dichotomy – Qualitatively vital elements “essence”– Eliminate unprotected ideas, scenes a

faire