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3.
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How do deliverables impact distribution?
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Digital video cameras and video editing applications such as Final Cut Pro make it possible to perform such minor technological miracles as creating entire feature-length "films" without ever leaving one's home.
Watching a film on VHS is about as satisfying as looking at a photocopy of an oil painting, so for the past few months I've been keeping my eye on the new generation of DVD-authoring software and disk recorders with the hope that I might soon be able to put my old VHS deck to rest in a New York landfill.
Until very recently, burning your own DVDs at home was prohibitively expensive. A DVD burner could cost thousands of dollars, and recordable DVD disks sold for about $30 apiece. Fortunately all this is changing. DVD burners that can create home-player-compatible video DVDs are selling today for well under $1,000. Recordable disks now sell for about $6 each, and these prices will continue to drop. Authoring software is getting cheaper and more plentiful as well.
This past month I tested two excellent new tools that enable filmmakers to author and burn their own movies onto DVD disks: The Que! DVD burner (approx $750) and Apple's DVD Studio Pro DVD authoring software ($999 SRP).
The limitation of most currently available DVD drives for personal computers is that they can't create disks compatible with home DVD players. These drives play video DVDs, but they can only write to DVD-RAM disks. DVD-RAM is a good storage format, but you can't play the disks on home DVD players. (Apple's DVD Superdrive was an exception, but you could only get it by buying one of their higher-end G4 computers.) The point is, don't run out and buy a DVD burner assuming you'll be recording video DVDs. You have to know the format it's capable of recording before you buy it.
The Que! is one of the first recorders available in the U.S. that will write to DVD-R format disks, a disk format compatible with almost any home DVD player. The Que! is actually a Pioneer DVD drive packaged in an external housing, and it connects to your Mac or Windows computer via a FireWire cable.
Here's the good news: video files burned on DVD-R disks and played back on my home DVD player were markedly superior to VHS copies of the same material. If you see your work on DVD you'll never want to send out another VHS tape again. Visit the QPS Web site - www.qps-inc.com - for a full list of compatible formats.
Another strength of the Que! is that it's compatible with a myriad of DVD and CD formats. In addition to DVD-R disks, I was able to write to DVD-RW disks, which manufacturers claim can be rerecorded up to 1,000 times. DVD-RW disks will generally only play on home-DVD players manufactured in the last year, however, so they are not yet an ideal way of distributing your movies. The disks are reusable, though, and can store almost 5 gigs of data, so they make good backup media. I was able to burn CD-R and CD-RW disks as well. This is useful because it means you can burn both DVDs and CDs without needing to keep two different drives around.
The Que! ships with a case that holds the drive, power supply, FireWire cable and disks. This is a reasonably portable, well-designed unit that would make an excellent addition to a DV editing system. Basic DVD authoring software for Windows computers is included. For Mac users, Que! includes a program for burning CDs, but not for authoring DVDs.
For DVD authoring on a Mac you'll need to get a third-party software application, and Apple's DVD Studio Pro DVD authoring package would be an excellent choice. Though the $999 price tag seems high, it's quite reasonable considering that hardware-based authoring systems can cost thousands of dollars more.
This test of DVD Studio Pro was my first experience with DVD authoring. Though the application is quite complex, it is well designed and within a few hours I was able to master it sufficiently to create a professional looking DVD that would play back three of my DV shorts. A useful preview function allowed me to constantly check my progress and watch for mistakes while I was working. My finished DVD included custom menus that I created in Photoshop that allowed viewers to select which short to play, and to view slideshows of production stills from each short. I was able to label each movie with chapter markers and encode the audio to the Dolby Digital standard.
The application is quite powerful, and in my trial I only had enough time to scratch the surface of its capabilities. Each DVD track can have up to nine video streams (or angles, as they're known in DVD jargon), eight audio streams, 32 subtitle streams, and 99 chapter breaks. Language settings allow the construction of multi-language DVDs - each disk can hold up to 16 languages. DVDs can be regionalized to play back only in designated geographical areas, and they can be copy protected with industry standard CSS (Contents Scrambling System) and Macrovision. When you've finished designing a DVD, you can either burn it directly to a DVD-R disk for immediate playback, or you can save the data to an external storage device so your video DVDs can be burned by a DVD replication service. An extremely comprehensive application, DVD Studio Pro is likely to do just about anything indie filmmakers will need to build a high quality DVD showcase for their work.
But don't throw away your VHS recorder just yet - the cost of burning disks at home is still a bit too high to replace tape entirely. But the enormous quality advantage of DVD and dropping prices spell the inevitable demise of VHS. Good riddance.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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4.
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How do I go about creating a realistic budget for my project?
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Creating A Budget
If you're a regular watcher of independent cinema, you've probably experienced them: the glaring errors, the awkward glitches, and the low-budget blunders that characterize a film as, in the worst sense of the word, independent. When they make their awkward appearance on the screen, we roll our eyes heavenward, struggling to understand how filmmakers could let such monstrous gaffes slip under the radar.
While studios can underwrite lengthy reshoots, artful editing, and enough F/X explosions to distract an audience from almost anything, indie filmmakers are often forced to cross their fingers and hope no one notices the boom in the shot, the hole in the plot, or the day the lead actress was having an allergic reaction to her cough suppressant. And while some flubs can actually lend a low-budget charm to the film, others are serious enough to send viewers streaming out of the theater. For beginning low-budget filmmakers, the trick is knowing which indie cliches are merely annoying and which are truly deadly.
Sound Advice
"Technical flaws in the picture don't bother me as much, whether the film is grainy or dark, but I think people don't put enough thought into their sound" says Ryan Kent, producer of the documentary Another Paradise. "If the sound sucks the uninformed person will attribute that to the actual quality of the filmmaking."
The informed viewer will also have a reason to condemn the film - especially when it comes to coughing up distribution dollars. "The absolute benchmark of a cheap film, and the reason a lot of them don't get distribution, is because they have such terrible, lousy sound," explains Mary Hillard, the producer and director of the nationwide film and video showcase TV Bounty. "It really will shoot down an independent production because you have to spend so much money to fix it."
Strong sound is especially important for filmmakers traveling the festival circuit. "There's no guarantee you'll screen in a studio theater," says Hillard. "A lot of festivals have screening in gymnasiums, for example. So if you're coming in with bad sound and then screening in a theater that may not have great sound, you've got two counts against you."
One reason for bad location recording cited by sound editors is that inexperienced producers have a tendency to hire novices for important sound work. "Often you have someone who's just learning as the boom operator," says Adam Livingstone, president of Video Post and as well as an editor and supervising sound editor. "People don't think about sound until the last minute - the image is afforded much more importance," he continues. "The best-sounding films are [the ones in which] the producer cared enough to get the DP and sound department rehearsing ahead of time."
Low-budget locations can prove to be problematic sound-wise; often locations are chosen because they're cheap and without a thought given to background noise. he advises, "The director should be designing all his shots to get good audio. Sometimes a great-looking location is just too noisy to mike well." Short schedules also contribute to poor sound. When there's a problem, inevitably someone in production will say, "We'll just loop it later." However, low-budget productions unable to afford a lengthy mix with a top-notch mixer may discover that cheaply recorded and hastily mixed ADR sounds just as bad as a muddy location track.
Sound problems not anticipated and corrected in production end up costing the filmmakers a lot of money in post. The filmmaker ends up relying on the post process to correct for conditions such as improper sample rates, no pulldown, using video speed instead of film speed, improperly referencing decks so that there end up being drifts, and times codes that are off. "The computer age can save you money," says Livingstone, "but only if you plan ahead. [Before you start shooting] you should know who's doing your audio post, get their specs, determine the most effective way to sync dailies, decide whether you'll use simuldats or have someone else provide you with flexfiles."
Bad Booming
Booms that make it into the final print are often the first sign of a limited budget. Because the 35mm film exposed inside the camera contains a frame significantly larger than both the 1.85 aspect ratio picture that usually shows in theaters and the taller picture that plays on TV, the boom will appear within the d.p.'s eyepiece, but it shouldn't dip below the frameline. On complicated dolly moves or scenes in which actors stand up and move around, this can be harder than it sounds. The boom gets in the shot when, as location mixer Dan Ludwig says, "The boom operator thought he knew the boundaries but didn't; the camera operator should have noticed but didn't...."
And, as Livingstone adds, "Not only don't independent filmmakers have the resources to shoot again, but a lot of first-time indie filmmakers don't use video monitors. They may not even be getting dailies, so they don't see the mistakes until they're in post."
Almost as common as the boom in the shot is the boom shadow in the shot. Boom shadows are often a result of limitations in the lighting package. Cheaper packages often contain smaller instruments with harsher light sources which create harder, more visible shadows. And of course, raising the boom higher in the frame to keep a shadow from falling means sacrificing sound quality. Lack of communication on set is also often responsible. "The better the relationship the sound department has with the d.p. and the lighting people, the better the film will be," Ludwig explains. "It's important that everyone knows what the other departments' needs and limitations are. Too often, however, you'll have a d.p. who works very quickly and isn't sound-friendly, who doesn't communicate or doesn't even know what the frame is. Or you'll find a lighting department that isn't keeping sound and shadows in mind. Sloppy communication leads to sloppy errors."
You've Got to Focus
A sharply focused picture would seem to be the minimum requirement of any motion picture. That said, it's surprising how many films - mostly independent but also a startlingly high number of studio releases - contain soft and sometimes out of focus scenes.
Inexperienced focus pullers, combined with d.p.s working with extremely shallow depth of fields, are the main reasons scenes go soft. Also, many indie filmmakers, especially those who cut on video, opt to forgo workprinting because it's an extra expense. "In cases where the filmmaker doesn't print right away, there are shots out of focus that get into the film if the performance is good," notes Livingstone. The video transfer process often tightens up a shot or corrects exposure problems, making it impossible to determine how soft, light, or dark a shot is until it's finally printed on film. When the first answer print arrives, "filmmakers are often so wedded to the performance that they'll let mistakes slide for the sake of keeping the take."
Soundtrack Shortcomings
While an occasional soft shot isn't a tragedy, an inappropriate soundtrack, even on the festival circuit, is. Mentioned repeatedly as a pet peeve by everyone from producers to screenwriters to grips, a jarring tune or cheesy score can irretrievably taint a viewer's perception of the entire film.
"Lounge-lizard-type music, even though I like that kind of music, is the cliche of independent films," explains Johan Goldberg, the director of the feature Camp Commanders. Besides investing the film with a perhaps unwanted ironic sensibility, a familiar or over-amped soundtrack can simply distract. And overuse of expensive source cues may work for films like Forrest Gump but are distracting when used in low-budget indies. One of the most difficult problems for a new filmmaker is the temporary soundtrack that grows to be "perfect." "A lot of first-time directors get very attached to their temp tracks and this is dangerous," says composer Chris Ramirez, who recently scored Hotel California II. "Inevitably the songs will be well beyond the scope of the budget, so their next recourse is to ask the composer to copy it. You end up with a weak imitation rather than allowing the composer to come up with something fresh and innovative." Ramirez says that another habit is to not even consider scoring. "A lot of directors will use the Quentin Tarantino route - instead of taking advantage of the emotional richness and impact that a score can add, they try to use songs, many of which just won't work as well."
Yet another scoring error is putting it off. "Scoring comes last, usually just after the budget has been all used up," says Ramirez. "Instead of waiting, hire your composer before you start shooting. Find out how much it will cost and how long it will take. Then you'll know to reserve that in the budget." Ramirez adds, "It's amazing what a well-crafted score can bring back to a film."
Handheld Hell
Thanks to the trendiness of handheld camera-work, most filmmakers assume they have some leeway when it comes to cinematography. "Fashion aside, it's probably a good idea to spring for a tripod. I've seen some incredibly bad camerawork, and I feel sometimes it's done on purpose, like handheld stuff that makes you want to vomit," complains Ramirez. And Blush comments, "Handheld is a big staple. It's like, 'My film is very cinema verite,' when you know that the filmmaker couldn't afford a tripod. It's all about motivation. Is there a reason why this film has lots of shaky cinematography? If so, great, but if not, you've got to make the time to lock your shot down. Not everything can be justified as art."
So how do you get good handheld camerawork? According to Mary Pate, director of the upcoming Joyhill as well as Laws of Understanding, the film that boasts perhaps the best use of handheld camerawork in recent years (and which may be responsible for the technique's continued popularity), the key is getting the right cinematographer. Pate explains: "I knew that our film would be handheld, so I put out the word that I needed a good handheld d.p. Owen Frans name kept coming up. While he didn't have a lot of dramatic experience he did have experience in documentary filmmaking."
Pate notes that there's a common misapprehension regarding the skills to shoot handheld. "d.p.s are very macho about handheld cinematography - they all want to put the cameras on their shoulders and prove that they can do it. But some can't. It takes a special kind of skill, and either you have that sense of composition and grace or you don't."
Editing Evils
On a film constrained by budget, fancy camerawork should be of secondary concern; usually it's difficult enough to provide adequate footage. The indie director who avoids coverage - multiple camera setups covering the same action from different positions and with different kinds of shots - risks cutting off his nose to spite his face. Too many directors decide to shoot just masters, considering it a stylistic choice. Jan Nelson, film editor of Nowhere to Go, "With one of the films I'm now working on, it's all shot in masters - and sometimes with only a single take - so what can I do? There are huge story holes I can't fill." With a little bit of coverage, editors can better performances, fix narrative gaffes, and improve pacing, yet many first-time filmmakers are unable to anticipate their editing needs while on the set.
Without adequate coverage, editors are often left with few options; budget permitting, the editor can hand the director a long list of insert shots or resort to using stock footage, which won't always work. Plus, as Nelson cautions, stock footage is very expensive: "If you're relying heavily on [stock footage], you're already offsetting any savings of not shooting it in the first place." Nelson recommends bringing the editor on early to discuss the shot list, especially if there's a low shooting ratio. There are many issues an editor, working with the director and d.p., can resolve before the shooting starts. "Anyone using a master-shot style, with long tracking shots and what not, is wise to back it up with additional coverage," Nelson affirms.
Continuity mistakes are another production problem editors are commonly called upon to remedy. Laura-Anne Williams, who edited several features, laughs, "One of the most difficult problems to fix is missing the shot that gets the actors from one end of the room to the other." "[This isn't to say] continuity mistakes aren't in big budgets too," She adds, "but without coverage they are really hard to cover up." One editing trick is cutting from frame during action so the eye is distracted by movement and won't notice a gaffe.
Stale Sets
A few of the other common low-budget, first-timer gaffes don't require inborn talent and can thus be more easily remedied. Williams lists a few: "If you watch carefully, sometimes you'll see the reflection of the crew in a close-up of a car, or you'll see a lightstand or a cable trailing off into the void." The reflection of the camera and crew off of glass can be avoided. "Using polarizing filters can lessen the reflections," says cinematographer Bill Vogt. "Or you can try to black out the camera. It depends on how much of the window and the reflection you want versus what's on the other side of the window."
Vogt also notes that shifting the angle of your shot might also work, as does making sure that the subject being photographed is brighter than the light around the camera.
Inappropriate set design is another indie staple. "Some cliches work for characters, but there's often another way to create a character without sticking to a cliche," explains Vogt. "For instance, you can have a nice bohemian pad without jalapeno lights." Capturing the boho essence is often tricky, yet its importance cannot be underestimated - a false note can raise eyebrows in a style-conscious indie crowd. But there can be too much of a good thing. "I think there's a tendency to make everything look like the East Village in New York. Everything has to have this avant-garde feel to it," says Vogt.
White walls are a commonly cited critique of low-budget production design. "They just look bad," comments production designer Beatrice Jonson. "Darker walls show off the skin tones of your characters. And it's easier to light when you don't have to keep the lights away from the walls. When lights hit the white paint, the wall looks flat," she explains. Block says that she often will use thin wood covered with wallpaper as a way to cover walls that can't be painted. "Or I'll put up foamcore covered with fabric. Then you don't have to spend the time restoring the wall when you're finished."
Familiar Faces
Indie filmmakers are just as capable as their studio brethren of casting cliches. "I'm getting a little tired of seeing all the same familiar old faces in independent films" says Scream screenwriter Kevin Williamson. "Some actors are just getting known as independent film actors, and it's just like seeing a big name actor in the same old role." Comments UCLA screenwriting instructor Frank Deese, "People go to movies to see stars because they're getting the same familiar persona from movie to movie, and that's not what you want in a good independent film."
Narrative Nuisances
While many of these cliches are ones that are only discovered after the camera is already rolling, there is at least one that can, if caught in time, be fixed before anyone's on the payroll. Mike Conway, comments, "Scripts don't necessarily need to be plot-driven, but they need to be well-structured. Many independent films are personal or autobiographical, and this leads writers to make assumptions about their characters. The writer knows him or herself well, but may not know how to develop that character onscreen. There's a loss of clarity."
For Conway, however, the chief error she encounters in indie scripts is a lack of focus. "The writer often hasn't come to terms with what the story is about, and this contributes to basic structural problems in storytelling."
Often the scripts aren't gold - and filmmakers look for other hooks to lure distributors. "There are a lot of art films that feature nudity that tries to apologize for itself," says Blush. "Usually it's not necessarily erotic nudity, it's the nudity of somebody who's being horribly abused or the nudity of someone who is trapped in a difficult situation." Post-Tarantino excessive violence has become an indie staple and not always to great effect. "I'm not against an ear getting lopped off if it's done for a reason, but there seems to be a need in independent films for some especially gory, violent thing that pushes it into another realm," says Conway. Screenwriter Rick Little agrees. "You need to find the thing that's unique in your story," he says. "A lot of times people end up imitating other films, or they use the same kinds of references that seem currently hip. Right now it's '70s pop culture and sudden violence. But you know when people are trying too hard to be hip or wacky. It doesn't work."
While the studio system may frequently churn out tired material, it usually conforms to the tried-and-true three-act structure - a device that more indie filmmakers may want to look into according to Littlr. "Another cliche would be a lack of resolution - abrupt endings. I tend to jump a little when the credits roll on an independent movie. It's over already? That was the ending?" says Little. "I don't want a message, but the movie needs to be complete unto itself in some way. Some filmmakers don't think they have to follow the rules of dramatic structure because artists don't follow the rules."
Of course, there are films that break every one of these rules and succeed because of, not in spite of, their disobedience. The great film auteurs do break the rules, but they break them brilliantly. "All the hacks break them horribly," says Little. Fledgling filmmakers plagued by memories of chili-pepper lights and shopping-cart dolly shots can comfort themselves by placing themselves in the former category - and perhaps next time learn from their mistakes.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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6.
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Question: A couple of rights questions: You said earlier "Authors of non-fiction books do not have any rights to the facts and historical information in their books." My understanding was that if the facts were publicly known and published you are correct, but that if the facts are taken from a privileged source the rights must be obtained from that source. For example, copyrighted scandal sheet reports that the private diaries of Jane Smith reveal Doe had an affair with her and that he secretly actually walked on water when he was once high on LSD and 1000 other unknown facts. I thought you would have to obtain rights from Jane Doe or the copyright holder of her book (since the facts appear no where else) to use these facts. No?
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Answer: Historical facts and information are not copyrightable under any circumstances. Of course, the way a particular author tells history can be protected as an expression of that author. Moreover, publishing privileged or private information could expose you to liability for breach of a confidentiality agreement or for unlawfully exposing a trade secret. But, facts are not copyrightable.
In regard to pitching to a studio and having your story ripped off, while you might not have a copyright infringement case, because all that was taken was an idea, you could well have a case for breach of implied or oral contract. There are a number of cases that have found liability in such a situation. The key question is whether or not there was an understanding by the parties that you would receive compensation for your contribution or whether your pitch was a gift.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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8.
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Question: A friend and I want to do an adaptation of a book we know to be in the public domain (let's say it was Moby Dick). However, a relative of the author says that they have copyrighted the author's name. We take this to mean we could say "Moby Dick, based on the novel by Herman Melville," but we could not say "Herman Melville's Moby Dick." Does this sound like the correct read to you? The relative was imprecise about the implications of the copyrighting. We do not want to burden the project with additional participants unless we need to, so we want to see if we can proceed without the relative's participation.
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Answer: Names and titles are not copyrightable; only expressions of an author are. Names can sometimes be protected under trademark law, however, even if the book is in the public domain. I do not see a problem in the realm of copyright law attributing it to the real author. Public domain material is available to anyone in the public to use. However, if you significantly change the story, it may be a form of misrepresentation and/or unfair competition to represent that your material is from the original author when it is not.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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9.
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Question: A rather interesting tactic has come to my attention through another screenwriting message board. The poster suggested writing your screenplay as a novel first, as a means of securing more comprehensive rights to your story. Even if the novel isn't yet published, you would own the rights to other adaptations of your story, even if you sold the "film rights" in the form of your screenplay. Does this sound like something worth the tremendous effort involved?
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Answer: No. Whether you create a novel or a screenplay, assuming you are not in the employ of someone else, you would own the copyright to the work and any derivative works. If you wrote a screenplay, you would control any derivative works, such as a book. Conversely, if you wrote a book first, you would control any derivative works, such as a screenplay.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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10.
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Question: A relative of an author of a book in the public domain said that they copyrighted the author's name. Now we hear that the relative actually trademarked the name, not copyrighted it. Could you tell me the implications of this? Can I write a screenplay and use this trademarked name, say like "Herman Melville's Moby Dick"?
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Answer: Trademarks, unlike copyrights, can last indefinitely (e.g. Coca Cola) provided the mark is used to designate and distinguish one product from another. If the mark is abandoned, the trademark is lost. My question is this, is the estate actively marketing a series of books under this author's name? Also, I would question whether this is a valid mark because it appears to be a descriptive term. If the estate is claiming the name as a mark, conduct a trademark search or ask the estate to show you a copy of their trademark certificate to see if the Trademark Office thought this was a valid mark. Of course, that doesn't mean it can't be contested. And, I agree with you that you could say "Moby Dick, based on the novel by Herman Melville."
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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12.
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Question: After copyrighting a script, I submitted it to a famous person's manager, who opened, read, and returned the material. A year later a movie was released with the exact plot line, characters, and verbatim dialogue. The only thing changed was the female lead was switched for the male star that directed the film. With no money to litigate, what can a person do?
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Answer: If your case is as strong as you claim, you may be able to obtain an attorney to take the case on a contingent fee basis. The key here is the verbatim dialog. If they closely followed your dialog at length, then it is unlikely they created it on their own. In this case, I think you may have a strong suit for copyright infringement, and perhaps breach of contract.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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14.
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Question: Are contracts signed in the United States valid in other countries?
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Answer: They may be valid but difficult to enforce against the party that is a foreign company or individual, especially if the defendant's assets are abroad. Parties that sign an agreement made under U.S. law are obliged to abide by the terms of that agreement. However, American courts cannot directly enforce their judgments in other lands. The United States has entered into international treaties that may permit a plaintiff with an American award to ask a foreign government to enforce it, but the process of doing so may be expensive and time-consuming.
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16.
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Question: Can you either post a sample "deal memo" for optioning a work or refer a website that would have that information? I'm interested in optioning some material and want to get the legal verbiage correct. Thanks for your time and advice.
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Answer: It can be dangerous to use someone else's deal memo if you do not understand the terms. Borrowing someone else's contract is like going into a pharmacy and asking a pharmacist for a blue pill because the last time you were sick, that's what worked. There is no such thing as a standard contract, although there are boilerplate clauses that can be borrowed from one agreement to another, if the use is appropriate. When you hire a lawyer, what you are paying for is his/her expertise to select a form appropriate for you and then customize it to your needs. Rarely do lawyers draft an entire contract from a blank piece of paper. Before you use a contract, you should make sure you understand the terms and how it should be modified to meet your needs. In my book, Dealmaking in the Film & Television Industry, 2nd Ed., (Silman-James Press), there are some sample contracts and explanations as to what all the legalese means. It can be obtained at most bookstores.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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20.
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Question: How can writers without residency in the U.S. protect their scripts when trying to sell them in the US?
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Answer: A script can be protected by contract or under copyright law. To protect by contract, you need to have the party you are submitting the work to sign an agreement providing that they will compensate the author if they want to use the work. Moreover, the agreement should include a confidentiality clause, which would provide that the recipient not disclose the work to other parties.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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21.
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Question: I am about to embark on the first page of a rewrite of another author's material. It will be collaboration. I will be doing the bulk of the writing. We are currently hammering out an agreement but can you please explain what I need to make it a viable, legal document? Do I need to sign with a notary, or self register mail it to myself, or is our simply signing and dating it sufficient for legal purposes?
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Answer: A binding contract requires an offer, acceptance, and some consideration, which is usually money or something of value that is changing hands, but could be mutual promises. Notarizing the documents simply ensures that the person who is signing it is the person they say they are. Mailing a script to yourself is proof that on a certain date you mailed the script to yourself, as evidenced by the postmark. This is not great evidence, by the way—you would be better off registering the script with the Copyright Office. Contracts do not always have to be in writing but it is almost always advisable to have your agreement in writing so that you can prove the terms. For a contract to be enforceable, it should be clear and leave no uncertainty or ambiguity as to any of the material (i.e. important) terms.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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22.
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Question: I am currently releasing a pilot for a new television show to all of the major sports networks in North America. One has demanded a signed "idea submission form" which states that the network may have in the past or future received similar or exactly the same idea as mine, and that they may use that similar or exact idea with no compensation to me. The form however warrants that I am the sole "owner" of the idea. Is this something to be concerned about and if so, how can I protect my idea from being stolen from this or any network?
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Answer: This is a submission release often used when studios, and television networks accept material from people "outside the industry." Generally, it is not required if your material is submitted through an agent, or an entertainment attorney, or if you have a personal relationship with the person to whom you are submitting it. Essentially, the network is concerned that you might be setting them up for a potential lawsuit for plagiarism. They are concerned that if you submit to them a project that is similar to one they are already developing, you may then have a claim against them. By signing this form, they make it more difficult for you to go after them because you are acknowledging that there is no implied agreement between the parties for you to be compensated. The form also attempts to limit your damages. This form will make it difficult for you to win a case in the event that the network negligently infringes your work. However, it will not be enforceable against you if they intentionally infringe your work. That is because such disclaimers, as a matter of public policy, are not enforceable to protect fraudulent or intentionally wrongful behavior.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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23.
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Question: I am hoping you can help with an issue that seems to be a little different from those listed above. We are interested in using three two-minute clips from different films to gauge subject reaction in a research project. This is in an academic setting and does not have any profit motive whatsoever. Since the clips are being used for educational/research purposes, do we need to contact someone about using the clips, or would we be exempt from this. Journal articles, for example, can be copied once if they are being used for educational purposes. If we do need to contact someone, who do we contact, writers, film company, both, neither? Thanks for your help on this.
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Answer: This may well be a fair use under copyright law. Certainly the fact that it is being done in an educational setting would weigh in its favor. The fact that your use is not competing against the owners of the clips would also weigh in your favor. The problem with the fair use doctrine is that it is a big gray area. Photocopying a Newsweek article for school use on one occasion would clearly be a fair use. But if a schoolteacher photocopied an entire textbook and handed it out to her students, it would not be a fair use. Unfortunately, many situations fall in between these extremes, and it can be hard to predict how the court will perceive the facts and weigh the factors in determining fair use. The best that you can hope for is to see if there are any precedents with facts similar to yours. Of course, if you are in a different jurisdiction, that precedent may not apply.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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24.
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Question: I am in the process of creating an animated short to be entered into many film festivals and also pitched as a TV series. How would I go about protecting the name and look of my main character before my short is released? Are characters trademarkable or will a copyright of an image of the character protect well enough?
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Answer: After you complete your script, and again after you complete your film, you should register each with the Copyright Office, using Form PA. This will register your copyright to your work. Copyright Law can, to some extent, protect characters that are sufficiently defined. However, this does not prevent others from creating characters with similar personality traits. Just because you wrote a detective story featuring Detective Sam Spade, it does not mean that you can thereafter prevent other people from writing stories that feature a hard-boiled private eye. As far as trade marking characters, if the character is used as a mark to identify the source of a product, then trademark and unfair competition law may apply. A trademark or service mark is a logo or name used to distinguish one source of product from another. Trademarks such as McDonalds, Apple, and Xerox distinguish the source of a product from those of other manufacturers. A character, which is represented visually, such as a cartoon character, will receive greater protection under Copyright law because of its visual representation.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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25.
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Question: I am interested in constructing a database product for the entertainment industry. I have developed an automated process for constructing the database, however, it requires copyrighted material as input. If I purchase a copy of the copyrighted material, may I use it to construct the database? I should note that entries in the database will be only keywords or short phrase-like elements, nothing larger. Will this process infringe on the copyrights? Also, if I can legally construct this database, may I then copyright it? Finally, do you think I could patent the database construction process?
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Answer: Facts, data, ideas, and concepts are not copyrightable. It is the organization or arrangement of this material that can entitle someone to a copyright. Words and short phrases are also not copyrightable. You are free to take from copyrighted materials elements that are not copyrightable. In other words, from a newspaper, you can withdraw facts. This would not infringe the copyright that the journalist would have in his or her article. In regard to processes, these are not copyrightable but can be patented.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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26.
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Question: I am negotiating with multimedia designers to produce several versions of an interactive CD-ROM for use in initial test marketing. Is a broadly drafted non-compete clause in the designers' contracts sufficient to protect my product from falling into competitors' hands, or should I secure rights not only to the tangible artwork and computer coding but to all concepts and developmental strategies as well? If the latter, how exclusive should my company's rights be versus those of the designers?
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Answer: It's difficult to answer your question on the basis of the facts you've supplied. On non-compete clauses, they are only binding on parties who signed them, not necessarily other potential competitors. If you want to prevent the information from being shared with anyone else, you need a confidentiality agreement. Non-compete clauses are not always enforceable. In California they usually are not enforceable, as a matter of public policy. Other states, such as New York, will enforce such clauses. Even where they are enforceable, they may need to be reasonable in scope.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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27.
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Question: I am planning to make a computer-animated movie in the next few months. I have all of the character designs, and the script is being completed. What steps do I need to take to protect myself from lawsuits for having characters that are similar to existing characters? To my knowledge, all of my characters are original, but I may be unaware of previous productions.
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Answer: If the characters are original to you, not copied from another person's work, either consciously or inadvertently, you own the copyright to them even if you were not the first to create them. Moreover, the fact that one author invents Superman does not prevent another author from creating Spiderman. But if your character is very similar to an existing character, you may be vulnerable to a suit for copyright infringement. Consult a lawyer before you go into production.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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30.
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Question: I found master recording tapes in my garage recently, untouched since 1977. The tapes are a live music performance at a state college, by a band that I belonged to. The bandleader no longer lives in the USA, the music was all his compositions, he taught all of us in the band how to play the instruments (African) and he put the band together. I do not remember how I ended up with the tapes but I have had them since the performance. I doubt he or any of the band members remember the performance was recorded. The band did not pay for the recording—college recording students did it. The band was very popular in the northwest for 4-5 years, then broke-up. The band was never under any contract and I do not believe any of the songs were copyrighted. I can reach the bandleader if I want to, he is a fairly well known musician in the USA and internationally. I had the tapes transferred to master CD's; the quality is excellent and worthy of a commercial release. My questions: Who owns the tapes? Can I (should I) copyright the performance? What should be considered with regards to a possible commercial release?
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Answer: When the music was created, a copyright came into existence. You are confused between the difference between registering a copyright, and creating a copyright. Registration is optional although it is advisable because it gives you extra protection. So your music was copyrighted when it was created. Presumably the band owns the copyright. It does not matter where the band members now live. It does not matter that no one paid for the recording, nor that college students did it. It does not matter that the band was not under contract to a third party.
Copyright law in the United States was changed in 1976, effective 1978. Assuming the prior law applies, the copyright would last for 28 years, and could then be renewed for an additional 28-year term (plus 19 more years if the work was in the second term when the law changed). If the copyright came into existence in 1977, it would last at least until 2005, at which time it would expire if not renewed. For works created since 1978, copyright lasts for the lifetime of the author, plus 70 years.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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31.
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Question: I have a problem; I pitched my screenplay on the net and got an answer from someone in Canada. He told me he was interested and that he works for an independent production company. Could he see the script? I replied and sent it along, asking to e-mail some production credits of his production company as well. The guy didn't do that. But the script was already on its way. It is registered with the WGA, sure, but yet I fear he's playing foul, for he didn't send a "Thanks-I-got-it" message or anything else. Could he cheat me? How? Am I paranoid? All I got from this man is an email address, an anonymous P.O. Box and his first name.
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Answer: By registering your work with the Writers Guild, you have created some great evidence in the event of a plagiarism dispute. If the recipient of your screenplay attempts to rip you off without obtaining the rights to your screenplay, you will be able to get a declaration from the Writers Guild stating that on a certain date you sent in this screenplay. That's very persuasive evidence in the event of a plagiarism dispute. Alternatively, you could have registered the work with the Copyright Office, which accomplishes the same thing and also entitles you to additional benefits, such as reimbursement of attorney fees. Since it only costs $30 to register your work with the copyright office, and filling out a simple two-page form, I recommend that you do it.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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34.
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Question: I have submitted a written idea for a show to a producer who is now shopping it to a network. We have no up-front agreement on compensation for the pitch because I had assumed that copyright law would be protective. Is that correct?
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Answer: Copyright law does not protect ideas. Ideas are inherently not copyrightable, nor can themes, premises, concepts or words be copyrighted. In order to be protected, you need to create a work of authorship. This is the embellishment upon the idea. The more you embellish, the more you can protect your work under copyright law. While you cannot be protected under copyright law for theft of ideas, you can be protected under of contract law. For an in depth discussion of how to protect your interests by contract, see the article I have written on this topic.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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35.
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Question: I have written jingles to portions of published songs. How do I find out if I can submit these to advertisers? Where and how would I get information for public domain?
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Answer: If you are the author of jingles, then presumably you own the copyright to them. You can submit these to advertisers or to anyone else you like. I don't understand why you need information about what is in the public domain.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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