Q: What is an "Assignment" clause?

A: An "Assignment" clause is a standard entertainment contract provision which enables a party to the contract to assign certain rights or obligations in the contract to another party.

Here is an example of an assignment clause from a literary purchase agreement:
Producer may assign and transfer this agreement or all or any part of its rights hereunder to any person, firm or corporation without limitation, and this agreement shall be binding upon and inure to the benefit of the parties hereto and their successors, representatives and assigns forever.

In the foregoing example, the Producer, who is purchasing the rights in a literary work from a writer, may assign his rights in the work to another party. A producer benefits from having the ability to assign his rights in the work because a distributor or financier may require an assignment from the producer prior to financing the project.

For the writer who is concerned that their work is treated properly, the writer may negotiate a limitation on the producer's ability to make an assignment, e.g. the producer may assign rights only to the major studios or a network.  For a produced writer who has some negotiating power, the writer may also insist that any assignment is subject only to the writer's prior written approval.  A writer should probably insist that any assignee also assumes all obligations owed to the writer and that the producer still remains liable for the obligations as well (usually payment) in the event the assignee does not perform.

Conversely, for a producer, they shouldn't grant a writer the right to assign their writing obligations under the contract. After all, the writer was hired because of their unique style and ability to craft the language and a producer wants that writer to deliver the work, not some other writer.

Q: Is your business prepared to handle a brand or product crisis?

A: I just wrote and published an article on my website entitled Brand or Product Crisis Management -- Part 1: Crisis Communications Planning. Here's a quick checklist of the important takeaways from the article and the 4 primary considerations for Crisis Communications Planning:

I. PREVENTION:  
  a.    Identify threats.
  b.    Establish threat prevention measures.
  c.    Document what actions have been taken.
  d.    Caveat:  Regulatory compliance is viewed as the minimum you should do, thus you should consider exceeding any regulations governing your industry.

II.  PREPAREDNESS: 
  a.    Identify Stakeholders
  b.    Designate a crisis team and leadership. 
  c.    Select spokespeople and then media train them. 
  d.    Instruct other personnel that in the event of a crisis they are not to speak to news media. 
  e.    Develop messaging for all anticipated threats. 
  f.    Identify influencers. 
  g.    Identify internal and external resources. 
  h.    Build a social and mobile media presence. 
  i.    Practice. 

III. RESPONSE: 
  a.    Be swift but cautious. 
  b.    Use online tools and traditional media to deliver your message. 
  c.    Monitor social media and traditional media. 
  d.    Respond, correct and clarify as necessary.
  e.    Follow the Rule of 3s for your key messages by stating: 
         i)     what you know;
         ii)     what you feel; and
         iii)     what the organization is going to do about it.

IV.  RECOVERY: 
  a.    Analyze the media and public response.
  b.    Determine whether the crisis is over or is only dormant.
  c.    Evaluate the effectiveness of your messaging and spokespersons.
  d.    Contemplate and institute improvements to the Crisis Management Plan.
  e.    Think about what might be the next big threat.
   f.    Gauge the benefits and timing for proactive measures and initiatives.

To read the full article, please download the PDF file from my website.

Q: What is Copyright?

A: Quite basically, a copyright is the statutory right given to the creator of a literary or artistic work to copy and sell their work. 

Under the present Copyright Act, copyright protection subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which the works can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:  (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic and sculptural works; (6) motion pictures and other audiovisual works; and (7) sound recordings.

The creator of any of the foregoing works is afforded copyright protection as soon as that work is created for the following periods:  (a)    for a sole author: the life of the author + 70 years; (b) for a work of joint authorship: the life of the last surviving joint author + 70 years; and (c) for any work for hire, anonymous or pseudo-anonymous work: 120 years from the date of creation or 95 years from the date of initial publication, whichever expires first. 

A copyright holder may reproduce and distribute the copyrighted work, prepare derivative works based on the copyrighted work, and perform or display the work publicly.  Any unauthorized use of a copyrighted work is considered an "infringement" and may subject the infringer to civil and criminal penalties.

Copyright protection for an original work of authorship does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

A copyright does not protect an idea, but rather the expression of that idea.  A few short sentences describing two characters who meet and fall in love aboard a doomed ocean liner will have less copyright protection than a 1000-page novel describing their tragic story in excruciating detail.  Therefore, if it's copyright protection that you seek for your creative work, then start writing and express yourself ... in 10,000 words or more.

Q: How do I defend myself in a copyright infringement claim?

A: In general, a defendant may defend against a copyright infringement claim by challenging the plaintiff's claim of copyright ownership or by showing that its actions were not in violation of any of the copyright owner's exclusive rights (for example, the right to reproduce and distribute the copyrighted work, prepare derivative works based on it, or perform or display the work publicly). 

The most common argument that a defendant did not infringe upon a copyright involves the defense of Fair Use, which requires an analysis of four factors:

the purpose and character of the use, including whether such use is commercial in nature or for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for and value of the copyrighted work.

Court cases have found that if the so-called "fair use" creates something new with a different purpose or character thereby transforming the copyrighted material and infusing it with an altered expression, meaning or message, then the finding of fair use is more likely to occur.  A reasonableness standard is used to decide whether the amount and substantiality constitutes fair use.  Finally, if the so-called "fair use" adversely affects the value of the copyrighted work, then courts are likely to find the use to be unfair.

The Copyright Act provides that the fair use of copyrighted material for the following purposes is not copyright infringement:  criticism, comment, news reporting, teaching, scholarship or research.  However, be advised that there are no bright line rules regarding the applicability of the fair use defense.  Instead, each matter should be analyzed on a case-by-case basis.

Q: What is a "Force Majeure" clause?

A: A "Force Majeure" clause (also referred to as an "Act of God" clause) is a common provision in an entertainment contract which protects the parties by suspending performance or terminating the contract when the contract cannot be performed due to causes outside the control of the parties and unavoidable by the exercise of due care. Typically, these events would trigger a force majeure clause:  fire, earthquake, labor strike, tidal wave, tornado or the outbreak of war.

A simple "Force Majeure" clause reads:

In the event Producer is prevented from producing the Picture by any law or ordinance, fire, strike, act of God, or public enemy or by any occurrence not within its control, or if, for any reason, the majority of the theaters or television stations in the United States cease exhibiting or broadcasting motion pictures for a period of one (1) week or more, Producer shall have the right to terminate this Agreement or, at its option, to suspend the operation of this Agreement, for a period equal to the duration of such contingencies. No compensation shall be paid to Artist in the event of such termination or during such suspended period. Unless this Agreement has been terminated, this Agreement shall again come into operation as soon as the cause of such suspension ceases, and Artist shall receive compensation at the same rate and under the same terms and conditions as though said suspended period were originally a part of the period of employment hereunder.

A "Force Majeure" clause can be beneficial to a producer and an artist because it enables the parties to move on to other projects if the completion of their current project becomes unlikely to occur.

Q: How do I ensure that no one else uses my great idea for a screenplay, television show or video game?

A: Whenever you talk about protecting a screenplay, television show or video game idea you are entering the realm of copyright law and contract law. 

Basically, copyright law protects original works of authorship fixed in any tangible medium of expression.  Now, what does that mean?  Well, one of the basic principles of copyright law is that ideas alone are not copyrightable because they are not considered a form of expression.  Rather, copyright law protects the way a writer arranges the words on a page to convey their idea.  Therefore, one way to protect your idea is to write a screenplay, treatment, synopsis or game design document based on your idea so that the characters, plot and action become fully realized.  Federal copyright protection attaches to a work as soon as it is created and provides the copyright holder with the exclusive right to utilize that work; provided, that in order to take full advantage of copyright law, copyright registration of the work with the Copyright Office is advisable. 

Alternatively, you may protect your idea by creating a contract in which you agree to reveal your idea so long as the recipient agrees to pay for it.  Since it is hard to get a written agreement at a pitch meeting, you may also enter into an oral agreement, which is enforceable in California despite being problematic in proving its existence and terms. 

One way to establish an oral agreement is to begin your pitch meeting by stating, "Before explaining my idea, I want to make sure that this will remain confidential and that if you use it, then I will be paid a reasonable amount of compensation."  If the recipient agrees, then you have an oral contract, but if they don't agree, then end the meeting without disclosing your idea.  Think about bringing a witness to the meeting to provide proof of the agreement and/or send a friendly letter restating the oral agreement after the meeting.  The recipient's failure to disavow the letter may be used as evidence of your contract.  Later on, any failure by the recipient to keep your idea confidential or failure to pay you, depending on the totality of the circumstances, may give rise to a breach of contract lawsuit and you will have evidence to support your claim.

Q: I'm writing a screenplay based on a real person, do I need a Life Story Rights Agreement?

A: The purpose of a Life Story Rights Agreement, which may also referred to as a "Depiction Release," is to protect yourself from lawsuits based on defamation, invasion of privacy and the right of publicity, and/or to ensure the cooperation of the subject/person whose life story you are writing about and their family or heirs with your project.

Before entering into such an agreement, you should always consider the possibility of changing names, events and locations thereby "fictionalizing" the story while still retaining its inspirational character. Altering the facts in a story so that real-life people cannot be identified by the public can save you this whole process. However, if the true nature of the story is what will sell the project, then fictionalizing the story may not be an option.

Some of the threshold issues in a life story rights negotiation are as follows: Are remakes, sequels, television series, merchandising, live stage and novelization rights included? Do you have worldwide rights? What other releases from family and friends may be necessary to tell the story or can secondary characters be fictionalized? Can the story be embellished, fictionalized or adapted for dramatic purposes without the subject's approval?

A Life Story Rights Agreement is usually structured as an option/purchase agreement in which the subject grants the writer or producer an exclusive option for 12-18 months to purchase the life story rights with the right to extend the option if necessary. The option price is generally 10% of the purchase price and is applicable to the purchase price. Any sums paid to extend the option are generally not applicable to the purchase price. If the rights aren't purchased or the option isn't extended, then all rights revert back to the subject, who is then free to enter into another agreement.

Q: How do I prove a copyright infringement claim?

A: The plaintiff has the burden of establishing the prima facie elements of a copyright infringement case -- (1) the plaintiff's ownership of a valid copyright; and (2) the defendant's  violation of any of the copyright owner's exclusive rights (for example, the right to reproduce and distribute the copyrighted work, prepare derivative works based on it, or perform or display the work publicly) utilizing any of the original elements of the copyrighted work.

A copyright registration certificate is generally sufficient evidence of a valid copyright. Thus, copyright registration is always a good idea. The Copyright Office website (www.copyright.gov) is a great resource for copyright information and the starting point for do-it-yourself registration.

In order for an actionable violation of the copyright owner's exclusive rights to arise, there must be substantial similarity between the plaintiff's work and the defendant's work. Any trivial similarity, i.e. an average audience would not recognize that the copyrighted work was copied, would not give rise to any legal consequences. The general test for substantial similarity asks whether an ordinary observer would recognize the appropriation and consider the use infringing. The following circumstantial evidence is generally used to establish copying: (a) the defendant had access to the copyrighted work prior to the creation of the defendant's work; and (b) both works are substantially similar in idea and the expression of that idea.

Evidence that the defendant had access can be established by proving that they had a reasonable opportunity to view the copyrighted work. Evidence that the defendant's work is substantially similar can be proven by showing literal similarities between the works. 

Once the plaintiff establishes the foregoing, then the burden shifts to the defendant to prove that the work in question was created independently or is subject to a number of defenses based on substantive, procedural or equitable issues.

Q: What is a "Right of First Negotiation"?

A: A "Right of First Negotiation" is a fairly standard provision in an entertainment contract which obligates one party to negotiate a matter with the second party before negotiating with any third parties. The matter in question can consist of anything from live stage, publication, remake and/or sequel rights or other rights held in reserve by the first party.

For example, in a Literary Purchase Agreement between a producer and a writer for the writer's novel, a smart producer would seek a right of first negotiation from the writer for all motion picture and allied rights to sequels based on the novel.  If the novel and the movie based on that novel are hits and the writer is going to begin writing sequels, then - voila! - a movie franchise is born.

A typical "Right of First Negotiation" clause reads:
Writer hereby grants Producer a Right of First Negotiation to acquire motion picture and allied rights in any sequels to the Novel (hereinafter referred to as "Sequel Rights").  The term "Right of First Negotiation" means that Writer will notify Producer in writing of Writer's desire to sell the Sequel Rights and will negotiate terms with Producer exclusively for thirty (30) days.  If no agreement has been reached after the expiration of the thirty (30) days, then Writer may negotiate with third parties without further obligation to Producer.

Returning to our example above, if the writer creates a second novel using one or more characters from the first novel but participating in different events with a different plot (a generally standard definition of a "sequel"), then when the writer is ready to sell the second novel's motion picture rights, the writer must first send a written offer to the producer.  The producer will then have 30 days to negotiate exclusively with the writer to reach an agreement.  If an agreement is not reached within 30 days, then the writer is free to shop the second novel on the open market.

Q: What is a "Right of Last Refusal"?

A: A "Right of Last Refusal" is a provision in an entertainment contract which entitles the party holding it to acquire certain rights - such as live stage, publication, remake and/or sequel rights - from the other party under the same terms and conditions as any offer made to or offered by a third party. 

A typical "Right of Last Refusal" clause reads:
Writer hereby grants Producer a Right of Last Refusal to acquire any reserved rights to the Screenplay ("Rights"). The term "Right of Last Refusal" means that if Writer makes and/or receives any bona fide offer to purchase such Rights ("Offer") that Writer is willing to accept, then Writer shall disclose the material terms of such Offer to Producer in writing. Producer shall have the exclusive option for thirty (30) days from Producer's receipt of Writer's notice to purchase such Rights upon the same terms and conditions as the Offer. If Producer fails to accept the Offer within the thirty (30) day period, then Writer shall be free to accept the Offer without further obligation to Producer. If Writer does not accept the Offer, then Producer's Right of Last Refusal shall revive and apply to every offer received or made by Writer in connection with the Rights.

For example, in a Literary Purchase Agreement for a writer's screenplay, a producer may seek a right of last refusal for all sequels based on the screenplay.  If the writer's movie is a hit and third parties start making offers to purchase sequel rights, then before the writer can accept an offer, that writer must extend the same offer to the producer in writing, who then has the option to acquire the sequel rights on the same terms as that offer within 30 days. If the producer does not accept within 30 days, then the writer is free to accept the third party's offer.