Notable TV and Digital Deals from Q3-4 2017

The last few months have seen a number of high-profile deals in episodic programming, spurred in part by the entry of a number of significant new players in the marketplace. Here are a few particularly noteworthy entries:

Jennifer Aniston, Reese Witherspoon Morning Show Drama Lands at Apple With Two-Season Order

Apple is anticipated to become a major purchaser of entertainment content, and it made a splash with its first show announcement – a two-season order for a show starring and executive produced by Jennifer Aniston and Reese Witherspoon, set inside the cutthroat world of morning television.

Lin-Manuel Miranda’s ‘Kingkiller Chronicle’ Series Set At Showtime

Everyone is looking for the next “Game of Thrones and “The Kingkiller Chronicles,” in development at Showtime and based on Patrick Rothfuss’s acclaimed fantasy series, may be it. “Hamilton” creator Lin-Manuel Miranda is attached to executive produce, and will contribute music to the series – a key development as music is an important component of Rothfuss’s books. Continue reading

Writers Engaged in “Additional Capacities” – Article 14 Basics

WGA writers, particularly as they advance in their careers, often end up engaged in both their capacity as writers as well as in an additional non-writing capacity, such as executive producers.  Article 14 of the WGA Minimum Basic Agreement (MBA) is therefore an important provision to understand for both writers and anyone engaging them; it states that if a writer is engaged in such an additional capacity, but also provides writing services, those services are still covered by MBA and that writer is still entitled to at least a certain level of minimum compensation for writing services.  Without Article 14 of the MBA, it would be difficult to determine what portion of a WGA writer’s time is spent writing, versus (for example) producing, and thus difficult to determine the writer’s minimum compensation.  Article 14 was one of sections of the MBA that was updated as part of the May 2, 2017 three-year revision of the MBA, discussed here. Continue reading

Inside Counsel’s Five-Part Series, “Where Former Entertainment GCs Go Next”, Provides Firm Profile of CDAS

Inside Counsel’s Senior Editor & Community Manager, Rich Steeves, published a five-part series titled “Where Former Entertainment GCs Go Next” last week, which was prominently featured on the Inside Counsel website.

The series, which discussed the so called “third act” for successful general counsel, provided a comprehensive profile of CDAS and the services the firm provides to clients, while also discussing the appeal the firm has had for former GCs in their transition to a new environment.

CDAS Partners Aileen Atkins, Frederick Bimbler, Douglas Jacobs, Eleanor Lackman, Marc Simon and Stephen Sheppard were interviewed for the series. You can find a link to each part of the series below.


Stolen Screenplay Ideas: A Look at Recent Cases

It’s a tale almost as old as Hollywood itself. A new movie comes out and garners some attention and commercial success and, before the first profit participation checks have been mailed (and even if the movie never turns a profit), a lawsuit has been filed alleging that some element of the movie was stolen from an earlier work – and often an earlier work that has never seen the light of day commercially. Continue reading

Re-Creation of Scenes from Pornographic Film for Biopic Not a Violation of Copyright Laws

New York Court Tosses Copyright and Trademark Claims at Pleading Stage

In Arrow Productions, Ltd. v. The Weinstein Company LLC, et al., No. 13 Civ. 05448, 2014 WL 4211350 (S.D.N.Y. Aug. 25, 2014), Judge Griesa undertook the judicial task of determining whether Defendants’ unauthorized recreation of scenes from Arrow’s copyrighted film constitutes fair use by viewing “all that is necessary” to make such determination – scenes from the pornographic film descriptively titled Deep Throat, and the film that allegedly copied them, Lovelace.  All in a day’s work.

Arrow is the copyright owner of the well-known pornographic film Deep Throat (1972) starring a young Linda Lovelace.  Deep Throat is about a woman’s journey to achieving sexual satisfaction, and is replete with sexual scenes and nudity.  Defendants’ film, Lovelace (2013), is a biographical account of Linda Lovelace.  Lovelace documents how Linda Lovelace’s formative years in the pornography business, including her experience filming Deep Throat, and her emotionally abusive marriage to Chuck Traynor led her to become an outspoken critic of pornography later in life.  Lovelace does not contain any pornographic scenes or nudity. Continue reading

Producing Content in Emerging Markets

What Producers Need to Know About Anti-Bribery Laws and Regulations

By Simon N. Pulman

As the marketplace for entertainment content becomes increasingly global and the middle classes in the BRICS nations (i.e., Brazil, China, Russia, India and South Africa) become both larger and equipped with greater disposable income, content owners of all kinds are looking exploit their intellectual properties in international markets. As part of this process, content producers are seeking to shoot substantial portions of their films and television shows in the target markets themselves, in order to appeal to foreign audiences in a more effective and authentic manner (e.g., Transformers 4, which shot in several locations in China and is on course to make more money there than in the United States), as well as to take advantage of certain foreign tax credits and subsidies.

However, content producers should be aware that there are very real risks nestled among the benefits of creating content in foreign jurisdictions. In addition to the possibility that foreign partners may be accustomed to different cultural standards and courses of dealing when it comes to negotiation and due diligence, or may feel aggrieved and become litigious once they see the finished product (as occurred with Transformers 4 and several of its brand partners), producers must be aware of their potential exposure to liability under the Foreign Corrupt Practices Act (“FCPA”), as well as under the UK Bribery Act and local laws and regulations focused on reducing bribery and other corrupt practices. Continue reading

Negotiating Digital Distribution Agreements

Business and Legal Issues to Watch in the Era of Netflix, Amazon, Hulu and VHX

By Simon N. Pulman

Digital and direct distribution options have created new opportunities for producers seeking to leverage multiple platforms to find new revenue streams and audiences for their work. While the traditional “all rights” deal will continue to exist as long as there are major distributors willing to pay a minimum guarantee and give a certain exclusive category of films a theatrical push, many producers are now looking at entering into (and understanding) two or more concurrent distribution deals with different and hopefully complementary partners. The goal for many of these producers is to maintain greater control over distribution and marketing, maximize value for investors and unlock the potential of growing digital platforms such as Netflix, Amazon and Hulu to benefit both the individual film and the longer-term career of its producer.

It is now not unusual for the producer of a moderately budgeted film to have separate agreements in place for theatrical, traditional home video (i.e. DVD and Blu-Ray), television and video-on-demand, plus an additional agreement with a foreign sales agent with respect to international rights. Moreover, some filmmakers who are willing to do some of the marketing and distribution legwork may also seek to “carve out” the right to directly distribute their films through streaming sites such as Vimeo and VHX (the subject of a recent Indiewire article here). These direct distribution sites allow producers to retain the lion’s share of receipts from their films, but also push most marketing and promotional responsibilities onto the producer.

Faced with many potential options – and rights issues – what do filmmakers need to know about distribution agreements? At CDAS, we represent many filmmakers and other content producers entering into distribution and sales agreements with major and mini-major studios, sales agents, aggregators and service providers. Here are a few threshold issues to consider based upon the many deals that we see:

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Supreme Court Allows Copyright Claim to Proceed Despite Delay

On May 19th, the Supreme Court issued its decision in Petrella v. Metro-Goldwyn-Mayer, Inc. et al., 2014 WL 2011574 (U.S. May 19, 2014), ruling that laches, an equitable doctrine barring suits after unreasonable delay, cannot be used to preclude copyright infringement claims brought within the Copyright Act’s three year statute of limitations. Continue reading

McDonald v. Brown: Remnants of Fraud Undone by Bona Fide Purchaser Status

Southern District Finds Screenwriter’s Claims Barred by Statute of Limitations and Subsequent Rightsholder’s BFP Status

The U.S. District Court for the Southern District of New York granted summary judgment in favor of a film financier based upon statute of frauds and bona fide purchase defenses in McDonald v. Brown. The Southern District’s decision provides reassurance to parties who obtain rights to creative projects without knowledge of prior legal claims, and also emphasizes the importance of fully understanding a project’s chain-of-title and the legal significance of documents prior to signing. Continue reading

Troma Entertainment v. Robbins et al.: Court Finds Lack of Personal Jurisdiction in Copyright Infringement Case

Case Distinguishes Application of New York Long-Arm Statute With Respect to “Traditional” and Online-Based Actions

On September 6, 2013, the Second Circuit narrowed the potential venues for asserting copyright infringement cases when it affirmed the Eastern District of New York’s dismissal of Troma Entertainment’s copyright infringement lawsuit against California residents Lance H. Robbins and King Brett Lauter for lack of personal jurisdiction (decision here). Defendants Robbins and Lauter had allegedly falsely represented that they were acting on behalf of plaintiff Troma when they entered into an agreement with German distributor Intravest for the distribution of Troma’s films “Citizen Toxie, Toxic Avenger Part IV” and “Poultrygeist: Night of the Chicken Dead.” In fact, Troma’s authorization of Robbins to represent it had lapsed after thirty days of unsuccessful negotiations; Robbins and Lauter had entered into the agreement with Intravest without Troma’s knowledge and had delivered the films to Intravest using German language DVDs purchased from Amazon. Continue reading

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