Getting to Greenlight Series: Life rights for film and television

DeepFocus Law’s Getting to Greenlight series presents entertainment attorney explanations of key business and legal affairs aspects of film and television development. This post turns the lens on the life rights acquisition agreement.

As the California Court of Appeals noted in a case involving Hollywood icon Olivia de Havilland, “[b]ooks, films, plays, and television shows often portray real people. Some are famous and some are just ordinary folks.” Baz Luhrmann’s “Elvis”, which recently premiered at the Cannes Film Festival, is one example. There are many others, from eccentric billionaire Howard Hughes (“The Aviator”) to figure skater Tonya Harding (“I, Tonya”).

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Getting to Greenlight Series: What is an option/purchase agreement for a motion picture rights to a book, comic, or other written works?

DeepFocus Law’s Getting to Greenlight series presents entertainment attorney explanations of key business and legal affairs aspects of film and television development. This post turns the lens on the literary option/purchase agreement.

Demand for new source material in Hollywood leads frequently to creative executives approaching authors of written works from literary fiction to existing screenplays to graphic novels. The underlying rights to such works are often the first link in the chain of title of a motion picture or television series. The first step in forging that chain is one of the most important in motion picture and television law–creating a deal for intellectual property rights. A deal for adapting literary material for the screen is most often documented in a literary option/purchase agreement. Here’s an example of a screenplay option/purchase agreement.

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Copyright infringement claim based on use of rap song in Marvel’s Venom dismissed.

Entertainment law case updates

Black And White Entertainment, Inc. v. Marvel Entertainment, LLC
USDC SD NY May 2, 2022

The District Court for the Southern District of New York recently entered an order dismissing claims by Black and White Entertainment, Inc., doing business as Rah Muzic and Rah Records, against Sony Pictures Entertainment Inc., Sony Pictures Releasing Corporation, Sony Pictures Home Entertainment Inc., Columbia Pictures Industries, Inc., Marvel Entertainment LLC, and Tencent Pictures (USA) LLC. The claim alleged copyright infringement based on use of the song and recording Super Hyphy a/k/a Super Hyphie in the 2018 motion picture Venom.

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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 . . . .”

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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.

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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…)

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.