Why copyright registration is the best way to protect your script.

Copyright protection for independent film should begin with its treatments, outlines, and script. It’s in these early documents that the filmmaker’s unprotectable ideas become “fixed in a tangible medium“—the moment that they change from being something anyone might have and something that only the author can claim. You can’t protect a mere idea with copyright, only the expression of the idea.

Ideas about how to protect those expressions, however, are abundant among indie producers, and they are all too often wrong. One persistent notion is the so-called “poor man’s copyright”. It’s the idea that mailing a copy of your completed script to yourself in a sealed envelope and never opening it until needed is irrefutable proof that the work inside belonged exclusively to you as of the date shown by the postmark. Copyright protection forever for the price of a Forever stamp is the thinking.

Another idea is that free registration of work with the Writers Guild of America (“WGA”) makes registration with the U.S. Copyright Office unnecessary. It’s also an inaccurate notion, but WGA registration at least does create valid legal evidence that can be used in court. It may be useful if there is a dispute as to authorship or sequencing of material by date. That’s better than the non-existent protection provided through the postal system. Most copyright disputes, however, are about contracts and allegedly infringing uses, not authorship.

Mailing your script to yourself will not protect your copyright.

The above ideas about copyright protection for your work are wrong for a couple of very important reasons. First, they provide at best minimally useful evidence of the date on which the work may have been created. Postmarks, for example, do not show the date on which the work was deposited in the mail. Nor are sealed envelopes with no documented chain of custody likely to even be admissible evidence. If they are, they are certain to be allowed only with a limiting instruction for a jury that will probably see them as having little persuasive value.

Second, even if a sealed envelope or WGA registration did provide indisputable proof of ownership of a work not registered with the Copyright Office, the value of that proof would be severely limited. Under 17 U.S.C. § 301(a), the federal Copyright Act preempts all state law claims alleging violations of rights that are equivalent to the exclusive rights protected by copyright. “Preempts” means that federal law applies to the dispute. And federal law is clear that without copyright registration, not only is the plaintiff (in this case, the author of the unregistered work) unable to sue in federal court, he or she would be limited to recovering economic damages that he or she can actually prove, if any. Most of the time, claims that infringement caused an author to lose some amount of money will be pure speculation.

Register your work with the Copyright Office instead.

In contrast, infringement of registered works entitles the plaintiff to statutory damages. These are amounts awarded by the court regardless of whether there is proof of actual economic loss.

The short answer? Save the stamp. Register your work with the Copyright Office.

Russell Lee, Redding, California. Motion picture show (1942).

Three reasons your independent film or television project needs a clean chain of title.

Where is the title to a film or television project? If your first thought was something like in an animated opening sequence starting off with James Bond turning abruptly to camera with raised .25 Beretta, in a continuous opening shot of “The Player” heading across a studio lot, or in disturbing typography like Se7en, you’re thinking of the wrong titles. This kind of title is critically important, of course. But unlike the title in your film’s chain of title, it’s unlikely to stop your project from ever being seen.

That’s because chain of title in the film industry refers to the ownership of intellectual property rights, life rights, and other rights involved in a cinematic project. The “chain” is a series of documents that link current ownership of those rights to their original owners. One link might be rights of publicity that belong to the subject of a life story. Another might be copyright in a screenplay or the literary fiction, short story, or comic on which it is based.

All of those rights must be established as owned by the production company behind the media project. This means written proof in the form of an agreement, license, or assignment transferring or granting the rights to the filmmaker for use in the specific project being made. Broken links in the chain are spaces where there is no documentation. Their result is uncertainty over ownership, which creates a risk that one who can prove ownership will assert the rights. Typically, this means a lawsuit.

Chain of title and liability protection

If you are sued for infringing someone else’s intellectual property rights, right of publicity, or other rights, costs can be severe. A copyright owner, for example, “is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” 17 U.S.C. § 504(b). If he or she cannot prove actual damages (say because your film was never distributed as a result of its broken chain of title), statutory damages “in a sum of not less than $750 or more than $30,000 as the court considers just” may be awarded to the owner. And “the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000” if it finds that infringement was willful. 17 U.S.C. §§ 504(b)-(c)(2).

Chain of title and media distribution

Because a lawsuit carries the risks of monetary damages, prevention of distribution, or even destruction of all copies of a film making unauthorized use of certain rights owned by someone else, errors and omissions insurers and distributors will not cover or acquire the film. That’s another major reason to make sure your chain of title is clean from the beginning of development.

Chain of title and film finance

But a clean chain can affect your film even sooner by severely limiting your ability to finance it. Just look at a program like Panavision®’s New Filmmaker Equipment Grant and Post Production Grant. It provides for camera rental packages and post-production services such as VFX pulls for up to 50 shots and up to 12 hours of final color correction. But you’ll need to sign an agreement warranting that you “have the exclusive, unconditional legal right and authority to submit” your project for consideration as well as “the legal right to film and distribute the Project.” If your chain of title is broken in any way, then you cannot truthfully make that statement.

You can be sure that when you seek some other form of film finance you will again be asked for the state of your chain of title. As an indie producer, you must be able to answer immediately that it is clean and provide the documentation to back it up. It is vastly easier and more economical to work with experienced production legal counsel on creating your chain of title during the process of creating your script. By continuing to do so though development and production, your financing options will expand, and your film or television project will be ready for distribution.

Original image of Hollywood sign by Ahmet Yalçınkaya.

How will President Biden’s mandatory vaccination plan for large employers affect film and television productions?

Announced last week, the Biden Administration’s order on mandatory vaccinations as part of a comprehensive national strategy in response to the ongoing COVID-19 pandemic may bring new requirements for some film and television productions.

Current film and television industry-wide protocols for returning to work agreed upon jointly by SAG-AFTRA, the Directors Guild of America, the International Alliance of Theatrical Stage Employees (IATSE), the International Brotherhood of Teamsters and the Basic Crafts, and the Alliance of Motion Picture and Television Producers already call for social distancing, masking, sanitizing, and other safety steps. They also give producers the option to implement mandatory vaccination policies for casts and crew on a production-by-production basis. Depending on the number of employees involved in those productions, however the upcoming federal regulations may soon require such policies. Moreover, because the vaccination mandate will not be limited to employees of covered employers who work within certain Safe Way Forward zones, already swollen production budgets may soon need to expand again.

Background

In response to the continuing spread of COVID-19 and variants, the Biden administration last week directed federal workplace safety officials to issue an emergency rule for private employers with 100 or more employees: Workers must be vaccinated or have a weekly negative test result before coming to work. The Occupational Safety and Health Administration (OSHA) will now implement the new policy by writing new federal regulations. Normally an administrative procedure that can take up to eight years, the rule making will be expedited with an “emergency temporary standard” that could impose new requirements affecting some productions in the coming weeks. Legal challenges could slow the process but probably only slightly in the face of pervasive COVID-19 cases and their effect on strained healthcare resources.

Because no new regulations implementing the large-employer vaccination mandate have been released as yet, significant questions about the implications of the mandate for film and television remain. Obviously, smaller productions are unlikely to face requirements beyond those in current return-to-work protocols. For production companies with casts and crews large enough that they may be impacted, we provide the following information and preparatory insight that we hope is useful.

Once issued, OSHA’s emergency rules will have immediate effect in the 29 states under the federal agency’s jurisdiction. State agencies in Alaska, Arizona, California, Hawaii, Iowa, Indiana, Kentucky, Maryland, Michigan, Minnesota, North Carolina, New Mexico, Nevada, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Virginia, Vermont, Washington, and Wyoming will have to adopt the standards or measures that are as effective within at most six months unless sooner required by OSHA. Thus, for productions of a scale that could bring them under the pending regulations, it would be advisable to begin developing or improving health and safety systems now to handle an increased workload. This is especially important because covered employers who fail to comply with the standards could face OSHA citations and penalties of up to $14,000 per violation. On a September 10 webinar, Department of Labor officials confirmed that the 100-employee threshold will be counted on a company-wide basis. But this guidance clarifies only whether a production company is likely to be subject to the mandate. It is also currently uncertain how threshold employee numbers would be determined as between a parent company that holds the necessary underlying rights to a project and a single (or special) purpose vehicle (SPV) created to insulate the parent, investors, or both from operational liability. The question of whether penalties would be imposed on a company-wide basis—or instead be potentially far greater if calculated on a per unvaccinated or untested employee basis—likewise remains to be answered.

Other important issues are also as yet unknown. For example, it is unclear whether a particular type of COVID-19 test (antigen, PCR, etc.) will be mandated, whether covered employers will be responsible for COVID-19 testing costs, and whether employers will be required to collect proof of employee vaccinations. The new standard likely will compel not only asking about vaccination status but collecting documentation proving it. Labor Department officials have confirmed that pending regulations will specify whether the employer must pay for COVID-19 testing. Given that the Fair Labor Standards Act (FLSA) generally requires employers to pay for time spent waiting for and receiving medical attention (including COVID-19 testing) at the employer’s direction or on its premises during regular working hours, it seems likely that the vaccine mandate will also do so.

Action

Film and television production companies with large projects in pre-production should begin planning now for how they will implement the new mandate’s requirements. Policy decisions can be made and some action steps taken before the regulations are released. Among other things, producers should decide whether they will implement a mandatory vaccination policy or allow unvaccinated employees to be tested weekly (likely already routine for some employees under Safe Way Forward protocols). Producers mandating vaccination should develop a reasonable accommodation policy for processing requested religious and disability exemptions. They should also develop tracking systems for vaccination status and weekly test results.

Original image of Hollywood sign by Ahmet Yalçınkaya.

New Quentin Tarantino film-based novel shows value of controlling ancillary rights.

Quentin Tarantino’s Once Upon a Time…in Hollywood: A Novel looks back at the world of 1969 Los Angeles recreated in the director’s 2019 film, delving into the history of stuntman Cliff Booth. The character, portrayed by Best Supporting Actor award-winner Brad Pitt, served as a good friend to former cowboy picture star Rick Dalton, portrayed by Leonardo DiCaprio. Booth serves equally well as an example of why protecting ancillary rights should be on every filmmaker’s list of deal points when negotiating distribution and other key agreements.

Ancillary rights are rights related to a particular intellectual property. In the case of a film, they include rights such as novelization rights, soundtrack rights, music publishing rights, and merchandising rights. Each of these rights can be separated and sold or licensed to the same or different parties and in domestic and foreign territories. But before doing so to finance development or production of a film, consider whether and how to split ancillary rights to best preserve options. Most domestic distributors, for example, will demand ancillary rights as a condition of taking on a film to cover their increased distribution costs.

The novel based on Once Upon a Time came after the film became Tarantino’s biggest domestic box office opening. As demonstrated by its prompt rise to the top spot on Amazon, a guaranteed audience for an ancillary work like a novel exists for such a property. This obviously makes the film’s novelization rights extremely valuable.

But all serious independent filmmakers should recognize the importance of ancillary rights. After all, it would have been almost impossible “once upon a time” to predict the success of Tarantino’s Hollywood story when the picture was in development. Filmmakers should assume that their own ancillary rights (which they, as creators of the underlying work, control at the outset) could one day be equally valuable——and attempt to negotiate accordingly. You might never imagine a successful book or other related work based on your film. But you should never give control of the possibility away unless as part of a coordinated effort to fully and successfully exploit your creative product.

Original image of Hollywood sign by Ahmet Yalçınkaya.

Los Angeles County revises film production health protocols as LA moves into Yellow Tier for COVID-19 reopening.

As of May 6, 2021, health and safety restrictions applicable to film and television production companies looking to shoot on location in LA County have been eased slightly. Due to Los Angeles County entering the “Yellow Tier” of California’s Blueprint for a Safer Economy framework, certain local music, television, and film production-specific activities that were previously banned may now resume. Of course, independent film producers should continue to proceed with caution and adhere to the continuing requirements in the industry COVID-19 protocol to reduce the potential spread of COVID-19.

The most recent update continues to require employees to wear face masks. But employees that are fully vaccinated may elect not to wear a face shield if otherwise required to do so by the COVID-19 protocol. Audience occupancy in increased to Yellow Tier levels, which limit outdoor attendance to a maximum 67% of total venue capacity as determined by the applicable building or fire code. For venues that seat up to 1,500 persons, indoor attendance is capped at 25% of capacity or 300 people, whichever is fewer. For venues that seat more than 1,500 persons, maximum occupancy is 10% of capacity or 2,000, whichever is fewer. In either case, venues may open at 50% of capacity if all audience members either show a recent negative test result or proof of full COVID-19 vaccination.

Original image of a graffiti wall film set in Los Angeles
by Ricardo Diaz licensed under CC BY 2.0.

Does China’s May Day box office herald new opportunities for independent filmmakers?

Box office numbers over the five-day China May Day/Labor Day holiday showed at least 10 local titles grossing over a combined $125 million in US dollars. It’s a calendar event in which new local films usually compete against studio movies like Avengers: Endgame. In 2019, the superhero epic dominated. Do this year’s numbers for local movies indicate that the market may be cooling? If so, will Hollywood shift from comics-based tentpoles, perhaps putting greater focus on bringing out more independent pictures with smaller budgets?

It’s likely too soon to tell. But combined with the continuing effects of the COVID-19 pandemic on the domestic box office (see the recent announcement that Pacific Theatres will close all 17 ArcLight and Pacific cinemas), independent producers may be justified in feeling inspired. The top earner among the holiday weekend pictures in China was “the story of unrequited love between two former high school classmates, tracking their romance over a 15-year period until the female character marries another man.” Beijing Enlight Pictures youth romance “My Love” pulled in $65.1 million in three days despite highly critical reviews.

Compelling, well-crafted, and distribution-ready cinematic stories by independent filmmakers may not generate the $629 million that Marvel’s Avengers did just in China in 2019. But such films don’t require $400 million budgets either. For their indie producers, China’s May Day numbers may well indicate greater opportunities ahead.

A signed reality TV Contestant Agreement blocks a singer’s personal injury claim.

Terms of a mandatory contract for participation in the reality television series American Idol give a thumbs down to injury claims says a new ruling by the California Court of Appeal. Plaintiff Michael Smith sued American Idol Productions, Inc., Fox Broadcasting Company, LLC, Freemantle Media North America, Inc., and others for negligence after being injured while participating in the televised singing competition. The court rejected Mr. Smith’s argument that his signed release of injury claims should not prevent his lawsuit.

The case arose out of an 2014 ear injury allegedly caused by ear impressions made to fit contestants with in-ear monitors. An experienced licensed audiologist and a a licensed hearing aid dispenser, also highly experienced, made silicone molds of Mr. Smith’s ears. Removal of one mold appeared to injure his eardrum. Mr. Smith sued.

What to know before signing a reality TV participant agreement

Reality show participant contracts typically include terms by which contestants in these unscripted television productions waive claims that may arise from their taking part in these often highly physical and emotional experiences. A “harsh reality” of reality TV is that unless contestants agree, they are not allowed to participate. Mr. Smith was asked to agree to a contract entitled “Contestant Agreement, Personal Release and Arbitration Provisions.” More than 20 pages long, it included a comprehensive waiver and release section. Despite being given approximately three to four weeks to review the terms, he reportedly “thumbed through” and “skimmed over pieces” of the document drafted by the television producer’s attorneys (hardly a “lengthy” contract in the entertainment industry). He apparently did not seek legal advice before initialing to consent.

A contract, however, must not be “unconscionable” or it will not be binding even if signed. This defense to contract obligations means that the terms a party is being asked to accept are so one-sided that they are “shocking to the conscience” that they cannot be allowed to stand. There are two aspects: “Procedural unconscionability” considers the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. “Substantive unconscionability” considers the fairness of an agreement’s actual terms—whether they are overly harsh to one party. The typical situation is when one party has much greater bargaining power, applies intense pressure, discourages the other party from seeking help, and basically says “take it or leave it” about the deal. All of these were potential issues in Mr. Smith’s case.

What to know before you go onstage

But Mr. Smith nevertheless lost. The California appellate court explained that the Contestant Agreement was written in plain language. Headings were set out in bold-faced type and underlined, including those about assuming the risk of injury and waiving all claims and suits. The release that barred Mr. Smith’s claims was not buried in a sea of small type. Ample time had been available to read it and consult with an experienced entertainment attorney about its meaning. There was no element of surprise in the contract, and the fact that signing it was required to participate (“take it or leave it”) was not by itself enough for the court to set it aside.

The unfortunate injury in this case should serve as a vivid reminder of how important it is to read contracts carefully and seek legal advice. Singing for a network television audience may be a performer’s goal, but knowing what one is signing should come first.