Home renovation contractor’s California defamation claim for portrayal in Windy City Rehab evicted on preliminary ruling.

An interesting case based on a reality television portrayal may have been switched off. The claim alleged that producers of the home renovation reality television series Windy City Rehab on HGTV falsely depicted the plaintiff as the series’ villian. According to the Hollywood Reporter, the Sacramento County Superior Court in a preliminary ruling today in Eckhardt vs. The Idea Factory, LLC concluded that defendants Scripps Networks and Big Table Media proved “that the entire complaint arises from an act in furtherance of [their] right of petition or free speech . . . .”

The plaintiff, Thomas Eckhardt, appeared as a contractor on the show during Windy City Rehab’s second season. The California court found that his complaint did allege facts showing some of the elements needed to prove a defamation claim. The complaint, however, reportedly failed to prove that the defendants acted with malice. A claim that alleges harm based on allegedly defamatory speech is subject to a special motion to strike under California’s anti-SLAPP statute, Section 425.16 of the California Civil Procedure Code. A plaintiff alleging such a claim “establish[ ] that there is a probability that the plaintiff will prevail on the claim.” Cal. Civ. Proc. Code § 425.16(a).

A “SLAPP” lawsuit is a “Strategic Lawsuit Against Public Participation.” It’s a claim that is ostensibly brought to silence the defendant’s right to free speech guaranteed by the US Constitution’s First Amendment. As the California legislature described it in enacting the law, “it is in the public interest to encourage continued participation in matters of public significance, and . . . this participation should not be chilled through abuse of the judicial process.” Cal. Civ. Proc. Code § 425.16(a). If the court grants an anti-SLAPP motion, it will dismiss the plaintiff’s case early in the litigation. In most cases, the court must also award the defendant its attorney’s fees and court costs.

Proof of “malice” is a necessary part of a defamation claim where the person allegedly libeled or slandered is, to some degree, a “public figure”. Such individuals “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Welch, 418 U.S. 323, 345, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). A “limited purpose public figure” is generally one who becomes prominent in a particular field or in connection with a particular controversy. A defendant acts with malice with regard to a limited purpose public figure when the defendant knows that its statement to a third person about such a figure is false or has serious doubts about the statement’s truth. A plaintiff claiming harm from this kind of defamation must sufficiently allege facts showing that such knowledge or doubts existed to survive an anti-SLAPP motion. Apparently, that did not happen here. Whether the court decides that its tentative ruling requires any renovation remains to be seen.

Original image of Hollywood sign by Ahmet Yalçınkaya.

When can a filmmaker use a trademark in a scene?

The recent premiere episode of Sex and the City reboot And Just Like That features the dramatic death of a prominent character, who experiences a heart attack after finishing a workout on one of popular exercise brand Peloton’s stationary bikes. It’s a bold creative decision to start the new HBO show by series developer Michael Patrick King.

It’s also a decision that indie filmmakers and major motion picture and television producers alike often need to consult about with an entertainment lawyer. Not the life-or-death story choice itself in this case—but the decision to depict a real-world product in a way that could lead to litigation. When do you need a license from the manufacturer to show an actual recognizable branded product and its trademarks onscreen in your film? (more…)

A closer look at how a federal private employer vaccination mandate could affect feature film and television productions.

The continuing Covid spread, fueled by the delta and more recent omicron Covid variants, compelled the White House in early September 2021 to announce a vaccine mandate plan aimed to large employers. Implementation has since stalled as a US appellate court grapples with numerous legal challenges, and the question of the mandate’s constitutionality is almost certainly headed to the Supreme Court. But the show must go on, and its producers need to know how a vaccination mandate—if put into place–will affect the sets and sound stages where thousands of their motion picture and television industry employees practice their art and craft daily. (more…)

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. (more…)

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. (more…)

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. (more…)

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. (more…)

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.