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Tom has a terrific question about recounting a true-crime story from long ago…
Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

OK, here's Tom's question:
“I am finishing my first draft on a true story about the murders of four of my family members 66 years ago and the transcripts of the trial cannot be found in Jackson, Mississippi. Can I fictionalize the trial / Jury Room / Names of unknown (and probably not alive), activities and dialogue in my inspired by a true story. The outcome of the Trial is all i can find in a 1950 Life Magazine Article with pictures. This is a forgotten historical event and will add a refresher chapter to our national history.”
Well, this is a little sticky… I’d counsel caution when fictionalizing things involving real people and events.  At very least, be sure that you’re not making false statements about living people that would damage their reputations. (That’s defamation).  If you recreate a scene, but inadvertently get some facts wrong, but there’s no HARM, you’re probably OK.  But incorrectly saying a person was on the jury, when he or she wasn't, or vice-versa could be troublesome. Especially if the story suggests some wrongdoing or error by the Jury.
Of course, anyone can sue anybody over anything at all, so you want to provide them with as little ammunition as possible by taking whatever steps you can to assure that the account you present is as truthful as it can be. Document your sources for everything that you can. The best practice for this kind of thing is to have 2 or 3 sources for each fact.
66 years ago is a good long time, but some folks may still be alive. I’d suggest tracking them down and interviewing them. Get them to cooperate, if possible…
When you get into using people's names, likenesses, and personas, you're talking about either Rights of Publicity or Rights of Privacy.
The Right of Publicity is recognized in about half of the US States, as well as some foreign countries. This is the right of a person to control any kind of commercial uses of his or her name, likeness or persona. In some places, that even covers look-alike and sound-alike performances.
But remember that I said “commercial” uses. Here, you're talking about telling a story… It's a narrative, and it's based on true events. So, there's an element of newsworthiness, and a public interest in this material being given some exposure. And… You're not selling a product or service or suggesting that the people in question are endorsing anything… So, the right of publicity isn't likely to be an issue…
But rights of privacy might be a bit trickier. For example, if a person was, 66 years ago, a notorious figure in the community, but has since led a quiet, respectable life. Retelling their story might constitute an invasion of their privacy, under a theory called “Public Disclosure of Private, Embarrassing Facts”. Generally speaking, these kinds of cases come down to whether a reasonable person would find the re-hashing of things “highly offensive” after so many years. So, I'd be cautious here.
You also want to make sure you're not presenting people in a false light… again, in a way that would be highly offensive to the average reasonable member of the public.
But, bottom line, finish writing the script… Then, get someone objective to go through and highlight every situation where someone’s reputation might be injured, or one of these other issues might be involved. Then determine whether that person is still living, and whether that reputation is really in jeopardy, and if so, get them to cooperate, sign a life-rights release, or something.

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Scott asks a tricky question about music rights for video of a stage production…
Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

 
OK, here's what Scott wrote in…
Q: I create and tour original visual theater. We tour internationally and in every contract the producer or venue pays the ASCAP or other performing rights society fee for the music that is used in our performances.
However if one were to record a performance and make it available online for sale who would the international fees be paid to for the video rights to the 20+ snippets of music in the performance? And how would one go about getting the rights to use said snippets of music?
First off, I have to say that, based on what he's described, I’m not 100% certain that the venues paying ASCAP and similar types of licenses is enough to get the rights for what they're doing. You see, those Performing Rights Organizations only license so-called “small” performing rights (concerts, coffee-houses, radio airplay, etc.), and not the “Grand” rights that are involved when music is an integral part of a stage production, where the music helps move the storyline and characters forward. It’s possible that they're in small-rights territory, if this show is fairly sparse on plot, storyline, costumes, lights, etc., but it’s also possible that they really need grand rights for what they're doing.
Grand Rights licenses are negotiated directly with the music publishers who own / administer the songs.
But that’s not the question Scott asked.
To use the music in video, you also need to directly license each piece of music from the publishers that own them. The license needed is called a “synchronization” license (which authorizes you to synchronize the song with pictures and dialogue, etc.)
AND, if you’re using existing recordings of the music, you also need a “master use” license from the record company that owns the recording you’re using.
To add to the hassle, many songs are administered by multiple publishers, (each songwriter’s interest might be handled by a different company)… So you might have to chase down 3 or more publishers for a single song.
These licenses are not automatically approved. Publishers usually have to secure approval from the songwriters themselves before licensing this kind of thing, (the songwriters or their heirs…
Sometimes have weird views about such stuff) so the publisher will ask for lots of information about the intended use… Context, script pages where the song appears, duration of the piece used, nature of the use (background, visual-vocal, etc.)…
And then they’ll quote a price for the use. Licenses are usually done on a “most favored nations” basis, so the highest quote sets the bar for all the music…
This can be a tremendously time-consuming process, so you should leave plenty of time.
The process:
1. Research to identify who holds the rights to each song
2. Prepare and send a quote-request (sometimes a form, sometimes just a letter asking for the rights needed) to each rights-holder.
3. Wait for approval and quote
4. Sign licensed pay fees/royalties
5. Use the music
But here's the other wrinkle… because you’re now revealing the nature of the show to these publishers, they too, will be asking the question whether you’re in “Grand Rights” territory, or whether the ASCAP/BMI rights are sufficient for the live aspect of what you’re doing.
And that's it for this session of Asked and Answered.
Do you have a question I can answer here? Visit firemark.com/questions
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Music Rights – How do you get permission to use a song in your video or film?
Hi, I'm Gordon Firemark, and this is Asked and Answered, where I answer common entertainment law questions, so you can take your entertainment industry career and business, or just your hobby, to the next level.

So, in a previous Asked and Answered session, I talked about fans making cover videos and posting them on Youtube and Facebook. And I explained that, when you include a musical composition (even your own recording of the song) in a video or film, you need special permission, called a Synchronization or Sync License from the owners of the copyright in that song.
So here's how you get that license.
It's actually pretty simple, conceptually.
You find out who owns the copyright,
You submit a request
You wait for an approval, called a “quote”
You agree to pay the required license fee in a written contract prepared by the copyright owner
And you're set.
In practice, however this is a bit more complicated.
That's because lots of songs are written by multiple songwriters. Collaborators. And, each of those songwriters might be represented by a different publishing company. And you need permission from all of them.
So, you've got to track down all those publishers so you can ask.
Now, a good place to start this is by looking at the liner notes for a recording of the song you're using. Oh, wait, this is the 21st century, and you're listening to an mp3 that doesn't have liner notes, or on a streaming service… Again no liner notes.
So, first check out the source where you got the music in question, and see if it lists the names of the songwriters and their publishers. Then google those companies. OR, head over to ASCAP.com and BMI.com, and search their repertoires.
Then, contact each publisher, and request the permission for the use you have in mind.
Then you wait for the quote, and then the license agreement…. Which you have to read, and understand, and comply with its terms…
And that's how you clear music rights.
More work than you thought, huh?
This is why TV shows and Film Production Companies have staffers who do this stuff for them. Most shows and films have a music supervisor who helps find the music, and identifies the owners, and then a lawyer or paralegal or other executive will handle the actual licensing.
For a film project, or a TV show, that makes sense, But for your typical YouTube or Facebook video… It's probably overkill. Maybe you'd be better off using some original music you wrote, or a track from a royalty-free source.
That's it for this session of Asked and Answered. Submit your entertainment law questions at http://firemark.com/questions.
See you next time.
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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Can you cover a song and post a video of it on your YouTube or Facebook?
Hi, I'm Gordon Firemark, and this is Asked and Answered, where I answer common entertainment law questions, so you can take your entertainment industry career and business, or just your hobby, to the next level. This one’s going to debunk a common misconception… stick around!

So, a Facebook group I'm part of has had a lively discussion going about covering songs and posting videos of their versions on YouTube and Facebook.
People are throwing all kinds of information around, and that's one of the big dangers of using online forums for your information. Not everyone with an opinion is an expert… So you're relying on people you don't know, and who don't have any particular obligation to get things right for you…
So let's unpack this a bit. Copyright can be tricky, and especially music copyright.
OK, first, we have to talk about the fact that for every recorded song, there are actually TWO copyrights.
That's right. Most people think about the RECORDING being copyrighted… But what they don't think about is that before the song could be recorded, it had to be written and composed… And that work was done by a songwriter, who might or might not be the artist who made the recording.
So, we've got a copyright in the Sound Recording, and that's owned by either the Artist who made the recording, or the Record Company that released it.
AND, we have the copyright in the Musical Composition. That is owned either by the songwriter(s) who created the song, or by the Music Publisher(s) that administer the song copyrights.
So, now let's look at “covering” the song. When you re-record a song, then you're not actually using the original Sound Recording… So that's not an issue.
But you ARE making a copy of the Musical Composition. And that requires a license.
Fortunately, the copyright law provides an automatic mechanism for getting this license. It's referred to as “compulsory licensing”, which just means that the owners of the song can't say no if you're just making a new recording. You simply have to pay a royalty rate on all copies of your new recording that you distribute. That rate is 9.1 cents per copy… And you can get this licensing handled, in most cases, through an outfit called the Harry Fox Agency, by visiting http://harryfox.com. And they take care of paying the publishers and songwriters what they're supposed to get.
BUT, that's not the end of our analysis… You see, that compulsory license only allows you to make and distribute what the copyright law calls “phonorecords”, which are essentially audio-only recordings, like CDs, Tapes, Vinyl copies, and yes, mp3 files, but  not videos, or other formats where the music is combined with other stuff, like pictures or video footage.
For that, you need another kind of license, called a “synchronization” or “sync” license. And that license isn't as easy to get. You'd need to go straight to the owner of the copyright (the publisher or composer) for that permission… And you'd need to submit a formal request, and they'd quote you a license fee.  Which could be anything… Or they could just refuse to give the permission at all.
And, if you wanted to post the video (or the audio) as a podcast, or to stream on your own website, there'd be other licenses you need to get… some from the publisher, and some from organizations like ASCAP and BMI. And possibly even from SoundExchange.
So that's the straight poop on making cover videos of your favorite songs.
But in the Facebook group I was looking at, people were questioning WHY so many fan-recorded cover videos of famous songs are showi...

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Paul has a question about using clips from a presidential debate from years ago on his radio show.
Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

So, here's Paul's question:
“I do a live radio call in talk show on investments. Recently I wanted to play an audio clip from the 1984 presidential debate… widely available…
About 20 seconds out of the two hour show. Is that permissible to play it from You Tube or other source?”
Well, Paul,  the basic rule is that the clip you're using belongs to someone, and you're supposed to get permission.
In all likelihood, that someone is the TV network where the clip was originally carried.
Now as is the case with presidential debates, it's likely that all three networks carried the debate, so you could take your pick.
My guess is that they'll grant you permission to use the tiny snippet, and that's that…
But, you might not even need to get that permission…
That's because what you're proposing to do could be considered “fair use”, and thus not a copyright infringement at all.
But fair use is a tricky thing because it has to be judged on a case-by-case basis.
There's not really any bright-line rule to state what is and is not fair use.
So, we have to rely on complex a four-factor “test” that needs to be analyzed for each alleged infringement.
So here's how Fair Use works…
Fair use is a doctrine that evolved under the old US copyright law and then was codified or made a formal part of the copyright statute when it was updated in 1976. The principle is simple.
To deal with the inherent conflict between free speech principles of the First Amendment and restrictions on copying imposed by the copyright law, it was necessary to create a defense to infringement for certain kinds of uses under certain circumstances.
To do this the courts and Congress set up a multi-factor test. It looks at four factors.
The first of these is the purpose and character of the alleged infringing use. Educational, scholarly, critical criticism, commentary and other artistic or transformative uses will weigh in favor of fair use, while commercial or more verbatim copying will tip the balance in the other direction.
The second factor is the amount and substantiality of the portion taken from the original. This is where the idea that taking only a small snippet is okay, but in reality it's actually possible to take the very heart of a piece without copying very much of it at all.
The third factor is the nature of the original work. If it's an artistic work it's going to be treated very differently than if the original was something very commercial like a billboard ad or a TV commercial jingle.
The fourth element or factor is the potential impact on the market for the original if the infringement were allowed to continue.
Now obviously if there's no real market harm this factor is going to favor fair use. If the market is strong for this kind of thing and the copying looks like it's just a way to avoid paying for rights or whatever, things are going to come out differently in this factor.
Now, none of these factors is dis-positive of the question. The court will look at the overall balance of the factors in making its determination on whether something is fair use.
I want to emphasize that this is not a one size fits all thing. Each alleged infringement has to be viewed standing alone by the court in a copyright infringement case. It's not something you just decide, “This use is fair use and so I'm going to go ahead.”
The trouble with that is… By the time most folks get...

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What could you do if your agent is taking too long to get you your money after they've been paid.
Hi, I'm Gordon Firemark, and this is Asked and Answered, where I help you take your career and business in entertainment to the next level.

David wrote in:
What can an actor do when their SAG franchised agent is taking more than 6 months to pay them for a particular non-union job (the agency has been paid by the production company)? This happened in TX where the agencies are no longer licensed by the state.
Hi David, I handled a case like this a few years ago, and it's not easy to collect. First, contact the production company. They'll deny that they're responsible, but that's not strictly true. Under most state wage-and-hour laws, the employer gas to make sure you are actually paid… At the very least, you need the employer to rattle the agent’s cage, and to provide you with proof that the agency received the money.
Next, you, or better yet, your lawyer, write a formal letter to the agency demanding immediate payment. The agency, licensed or not, is a fiduciary… Which means they're in a special position of trust, and thus held to a high standard. If they don't pay in a timely fashion, they could wind up on the hook for as much as three times the amount in question.
But ultimately, I think you'll have to resort to the courts. Does your contract specify a time frame for payment? Does it provide for attorney's fees? If so, hire a lawyer to file suit. If not, consider whether the amount involve justifies hiring a lawyer, or whether small claims court is a good approach.
And, you should certainly report this to your Union, if for no other reason than to help other actors avoid the same problem in the future.
That's it for this round of Asked and Answered. If you've got a question you'd like answered here, just head on over to http://firemark.com/questions.
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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Should you register a trademark for your album title?
Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

So, David wrote in with this:
I just came across one of your videos and have a questions about trademarks. My background has been mostly in the world of video and television, but I am working on a music project and I'm just curious how soon before the music goes public should I file for a trademark. Basically I have a name for an album that will have 10 to 12 songs on it. Do I need to trademark the name of the album?
Well, David, it may seem like a good idea to register the title of your album, but I have my doubts that the government would allow it.
You see the US Patent and Trademark Office has historically had a rule against registering titles of single works. And that was always pretty likely to apply to an album, a song, a book or a movie title, unless what you're registering is actually a brand that is/will be affixed to a whole LINE of goods or services. Like, for example, the “Idiots Guide” or “For Dummies” series, or something like “Harry Potter and the…” or “Star Wars”
But in 2015 there was a case where the Trademark Trial and Appeals Board ruled that a categorical ban wasn't appropriate… So now, the PTO has to determine whether the title is being used as a brand, or is just descriptive of the work. And, in the case in question, the court still ruled that the title was merely descriptive, and wasn't being used in a way that could justify trademark protection.
So, back to your album title…
I think unless you're planning on putting out a series of albums all under the same “brand” Like a series of Volumes, you'll have a hard time convincing the trademark examiner to let your registration go through.  My recommendation would be to save your money on this, and if you haven't already done so, register the name of your band… That's really the brand you need to protect. And Band names CAN be registered.
Now, one more word of caution. Trademark Registration is something that people can do themselves online, and sometimes it's smooth and easy, but as I've just explained, the law and the procedural stuff can get tricky pretty fast. So, I strongly recommend that you have an attorney (like me) help you out with your trademark registrations. Yes, it costs more than doing it yourself, but it also greatly increases your chance of a successful registration the first time at bat.
OK, that's it for this round of Asked and Answered. If you've got a question you'd like answered here, just head on over to http://firemark.com/questions.
See you again soon!
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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When should you register your copyrights?
Hi, I'm Gordon Firemark, and this is Asked and Answered, where I help you take your career and business in entertainment to the next level.

One of the most common questions I get from clients I the business is about when they should register their copyrights.
So, here goes…
First off, registration is not necessary to perfect the copyrights in a work, but the benefits of registration, especially early registration are so significant, copyright owners should make a practice of registering their copyrights well in advance of any trouble arising. I recommend doing this as early and often as possible.
To register a copyright, the copyright owner submits an application to the Copyright Office with information about the work, the author, and the circumstances of its creation. Online applications can be filed for about $35. Filing a paper application currently costs a bit more.
There are a bunch of advantages to filing your registration early, but probably the most important are the ability to obtain statutory damages and attorney’s fees.
Statutory damages do not depend on the actual harm to the copyright holder or the ill-gotten gains of the infringer, and awards can range between $750 and $30,000 for each infringed work. In the case of willful infringement, awards can go as high as $150,000.
But, to be eligible to receive these statutory damages and attorney’s fees, a copyright owner has register the work, (a) prior to publication, (b) before the infringement occurs, or (c) within three months following the first publication of the work.
Otherwise, only actual damages or infringer’s profits may be recovered, and for most copyright cases, those can be difficult and costly to prove, and they usually don't add up to as much.
Also, in many jurisdictions no copyright infringement suit can be brought until a certificate of copyright registration has been issued, so you can sometimes experience a big delay.
What are some of the other benefits of early registration?
Well… When you have a registration, you get a legal presumption of the validity of the copyright and of the facts stated in the copyright certificate and records.
You establish a public record of copyright ownership, which makes proving infringement easier.
You can record the registration with the U.S. Customs and Border Protection to prevent the importation of infringing copies.
And, if you're looking for funding, a registered copyright will help build the confidence of lenders and investors.
For many works, like brochures and pamphlets, the process is pretty straightforward and you might not need help from your lawyer, but for more complex situations having legal help will streamline the process and improve the odds that everything goes through without a hitch.
Copyright lawsuits are colossally expensive, and the costs can easily add up to more than the actual damages sustained, especially in isolated instances of infringement. What that means is that a copyright holder could, as a practical matter, have no real remedy for that infringement unless they've registered early and are thus able to get an award of statutory damages and attorney’s fees.
If you don't register your work in a timely manner, you will probably have some limits on what you can do if your work is infringed. So, if your business has any copyright material, it makes sense to have a system in place to get things registered so you have the full protection of the law.
That's it for this episode of Asked and Answered. If you have a question you'd like to see featured here, submit it at http://firemark.com/questions.
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Matt has a question about promoting his podcast episodes with images of his celebrity guests.
I'm entertainment lawyer Gordon Firemark, and this is Asked and Answered, where I provide answers to common legal questions, so you can take your career and business in entertainment to the next level…

 
Q: I'm curious about image usage. My podcast is a celebrity talk show, and I always create a title card for the episode using a headshot. Often, these are not provided and Google is where I find them.
I know the general assumption is that if it’s of the person you're featuring you're in the clear. But it's my understanding that's sometimes not the case because the subject may not be the rights holder to that image.
A: (address copyright, derive works, right of publicity, and approval rights)
I suggest you always get permission from the owner of the image you use. Google search is a dangerous approach.
Celebrities have images available for this stuff, so ask for one when booking them.
The agent, manager, or publicist should have no problem providing one. Ideally, then, when the guest signs that release, you'll be covered for the photo, too. If not signing a release, make sure you get them to SAY (on recording and/or in email) that they have the rights to the photo…
But if you're making major changes to the image (I.e., more than just cropping), the celebrities will likely expect an approval right. So it pays to run it by their representatives before going live. You don't have to actually ASK for approval, just say, “Here’s the image I'll be using to promote your episode”. If they have any issues, they'll certainly let you know.
So, that's it for this session. You can get that free podcast guest release that i mentioned at http://podcastrelease.com.
And if you have a question you'd like to see featured on Asked & Answered, hop on over to http://firemark.com/questions.
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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Elizabeth wrote in with a question about having a character in her play sing a song…
I'm entertainment lawyer Gordon Firemark, and this is Asked and Answered, where I provide answers to common legal questions, so you can take your career and business in entertainment to the next level…

Elizabeth writes: “hello! I am writing a play and I have a character that I'd like to sing a song. She would be performing it unaccompanied OR with very, very limited live accompaniment… My question is two fold: first, can I do this without obtaining rights? and two: should my play be published in the future would it be illegal to have the lyrics written in it? thank you so much!”
Ok, Elizabeth, the answer to your question is this. You probably DO need to get permission, that is a license, to use the song in your show. What we are talking about here are Dramatic Performance rights, commonly referred to as “Grand Rights”.
It really doesn't matter whether the character is singing a Capella, or with live accompaniment, or even singing along with a recording… What matters is that the you're making a public performance of the composition, and that is one of the exclusive rights held by the copyright owner.
And, publishing the play with the lyrics is both making and distributing a copy of those lyrics, and making a derivative work from the original composition. And, you guessed it, those are also exclusive rights of the copyright owner.
So, you're going to need to get a license.
How do you do that? Well, start by heading over to www.ASCAP.com and www.BMI.com and searching their repertoire for the song. On you find it, look for the publisher… Or publishers (there could be several), and contact them with your request.
Your request should include a description of the play, and the specific scene where the song is used. You also need to describe HOW the song is use, and now much… Something Like:
“Full use, performed by actors on stage”
And you'll need to tell them where and when the shoe will be performed, number of seats, ticket price, and so on.
Then, you wait, and follow up after a few weeks. These kinds of requests are usually pretty low-priority at the publishers… But eventually, they'll get back to you with a quote… Naming a price for the use.
Now, I know, you're probably just thinking about writing this p,any, and probably don't have a place, time, or theatre in mind yet… And that's part of the catch-22 here… The publishers won't issue a license until you've got a producer ready to put up the play, but producers usually won't to a play unless all rights at free and clear.
It's sometimes possible to strike a deal with a publisher, sort of informally, where they let you include the song in the script, but require a negotiated license for any production.
Not ideal,but manageable. Having a knowledgeable, experienced entertainment lawyer help with this can be very beneficial… So get some help.
If you have an entertainment law question on your mind, submit it at http://firemark.com/questions.
See you next time.
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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Amin wrote in with a question about how to evaluate a film option that's been offered.
I'm Entertainment Lawyer Gordon Firemark, and this is Asked and Answered, where I answer your questions about the business, so you can take things to the next level.
Amin has been asked to negotiate a deal with a production company that wants an option on a friend's life story rights. the question is. “How Do We know that the price they are offering is a good one?”.

How can you know whether an offer you've received is a good one?
Well, mostly, I have to say, that comes down to three things. Research, Experience, and Intuition.
Research can tell you a lot about the situation. Look at similar projects in recent years, and gather data about what folks received.
Look at the people and companies involved, and what they've been involved in in the past.
Look at what other participants in THIS project are getting.
Ask around, but don't rely too heavily on the opinions you get from your immediate friends and family, unless they have the next component… Experience.
Probably the most important tool you'll have in evaluating an offer is Experience. Your own, your friends' and colleagues, and that of your representatives.
One of the big advantages of having representatives; an agent, manager and lawyer; helping you with your deals, is that they work in this business all the time. For every deal a single client has seen, we are seeing multiples… Because we have more than one client Working in this business. So, we have a built-up base of experience to draw on. when advising and representing our clients.
But your own experience is valuable too. You may have Factors that you consider that wouldn't be obvious to your lawyer or agent. Maybe you've worked with these folks before, and they're so much fun to work with, that you'd do it again regardless of the money. Or, maybe the converse is true. They were so difficult that no amount of money could make you do business with these folks again.
Your experience, combined with your research will naturally inform the third component of this… Intuition. Listen to your gut. What is it saying about the offer? If you were to take the offer, how would it make you FEEL? If the answer is anything but “GREAT”, think harder. Why is it less than stellar?
But knowing whether an offer is a good one is only the beginning of things. What comes after receiving the offer is really where the rubber meets the road. Negotiation.
There are lots of approaches to negotiation, but ultimately, it's about asking for what you want, and making sure you get what you NEED from the deal. Again, this is where working with your representation is really important. I've yet to see a deal that wasn't improved through negotiation, and the ones that get handled by professionals, get the most improvement.
So, unless the deal you've been offered is a real turd (steaming pile), you can make a counter offer, and eventually strike the deal that does make you feel great. Or, if you conclude that can't happen… You say NO.
I'd always prefer to feel bad about a deal that didn't happen, than about one that did, and for which I've worked hard, invested my energy, and ultimately been burned or embarrassed.
So.. To recap.
When you evaluate a deal, look to:
Research
Experience,
And
Intuition.
Consider what you really NEED out of the deal, and determine whether everything is covered.
And negotiate.
Oh, and get some help from a lawyer, agent or manager.
If you have a question you'd like to see featured on Asked & Answered, hop on over to http://firemark.com/questions.
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George writes in with a question about location releases and permissions.
I'm Gordon Firemark and this is asked and answered where entertainment law questions so you can take your career and business to the next level.

 
So, here's George's question:
I am a filmmaker and have permission from a tribute band to film them at a concert in a theater in Connecticut. The theater said the band can be filmed there but an agreement needs to be signed basically saying that the footage cannot be used for commercial use or they will sue, or they want 800.00 to allow us to film there. It seems this is not an issue of liability or they would demand the fee for insurance purposes.
What right does the theater have to sue the band or even me for filming the band's performance in their theater?
What rights do I have as the filmmaker in getting permission from the band to use them in my film while performing at this theater?
Well, George the band doesn't own the theatre, so they don't have the right to grant permission to film there. Only the owner can do that, and he can put whatever conditions on the filming he wants. And that includes charging a fee. And, it's common for location owners to charge a fee for use of their premises…
Filming on the premises without permission is probably a form of trespass, and can give rise to civil and possibly criminal liability. So that's how they have the right to insist on a payment…
But trespass is a state law issue, and varies from place to place… So check with a local lawyer familiar with the issue.
An interesting wrinkle though, is whether using footage captured in a club or theatre within the context of a film is really “commercial”. In first amendment discussions, where we look at a government restriction, it probably wouldn't be considered commercial. That term would more likely apply if the film is being used to promote the band, or a product of some sort, like an album or concert tickets. So, it makes sense to talk with the theatre about what they mean, specifically, when they say no commercial use.
But ultimately, $800 is cheaper than any lawsuit… Even if you win. What's your time worth for defending against this?
So, the practical advice, pay the fee, or don’t use the footage.
Now, if you have a question that you'd like to see answered here, please send it to me at http://firemark.com/questions
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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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Brief Explanation of Fair Use
YouTube’s Strike Policy
 
Tim wrote in with a question about his movie reviews channel on YouTube.
I'm Entertainment Lawyer Gordon Firemark, and this is Asked and Answered, where I answer your questions, so you can take your business in entertainment and media to the next level!  My answer in just a sec…

So here's what Tim wrote in the comments on my YouTube channel…
“A friend and I want to start a YouTube channel that reviews movies. We want to give facts, actors, and other details about the featured movie, as well as put 2-3 short clips from that specific movie. How can we do this legally and without getting a copyright strike on our YouTube channel?”
Hi Tim,
First off, the best way to get questions to me is via http://firemark.com/questions, that way you get notified as soon as I post an answer via video. And you get subscribed to my free email newsletter, where I provide all kinds of other free, useful information.
OK, here goes…
Movie Reviews in electronic media have a long history of using clips, stills and other material from the the films they're reviewing. TV review shows, radio reviews, and what have you… All of them have done this. In most cases, the studios have provided the clips as part of the press-kit for the films.  After all, they want to get these films out there for the public to know about, so they'll come and see them. That's how the studios make money.
So.. Start by contacting the major studios and film distributors and asking to be added to the circulation list for their Electronic Press Kits (EPK for short). Sometimes you can find the EPKs on the movie websites, so have a look around
Now if you get the clips this way, then you'd be operating under a license from the copyright owner… And as long as you comply with whatever terms they require, you should be fine.
But, small snippets used in the context of a bona-fide movie review will most likely constitute FAIR USE, and therefore NOT copyright infringement. The trouble is, it's risky to rely on Fair Use in these situations, since that determination is typically made on a case-by-case basis by a Judge or Jury… Which means you're already embroiled in a lawsuit by the time you get to present the defense.
You may also want to have a look at my “Brief Explanation of Fair Use” video: http://firemark.com/fairuseinbrief for a bit more detail.
The good news is that a recent court ruling requires copyright owners to make a good-faith determination about fair use BEFORE issuing a DMCA takedown. AND, if they do issue a takedown, you'd have a valid basis to issue a counternotice, and get the video reinstated.
YouTube’s strike policy is somewhat flexible, and they've recently indicated that they'll even help support users who have fair use claims. (see http://www.zdnet.com/article/google-announces-legal-support-for-youtube-fair-use-copyright-battles/)
So, my advice is: See if you can get official press/PR copies of the footage you want to use, and be careful to comply with the film owners' requirements, but even if you're not able, consider whether your use falls within the fair use defense/exception to copyright infringement, and document your decision making process.
You may want to consider getting some Errors and Omissions insurance to cover you and legal fees if you're sued.
And, of course,

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Blake is wondering about whether he can promise a producer credit to someone in exchange for bringing in some talent to a project.
Hi, I'm entertainment lawyer Gordon Firemark. This is asked and answered where I help you learn what you need to know to take your career in the business to the next level.

 
So, Can Blake agree to give credit?
Here’s what he says…
“I am in a bit of confusion, I've created a television series (came up with the idea in great detail) and I am co-writing it with one of my writers and a friend of mine.
A professional/celebrity photographer who is trying to get into producing, is friends with someone who I envisioned as the lead. He's spoken to her about the project and she is definitely interested, but to go further he wants an agreement between from me possibly stating that he will get a producing credit (whether Co-Producer, Associate Producer, whatever) and I don't know if I am allowed to do that, what if a network picks the series up, but doesn't want him to have a credit? Would a credit be given without possibility of payment? I need help and insight on what I should do? ”
Well, Blake, you can agree to give this guy credit, if he is bringing enough value, but you're right to wonder what could happen if a network feels it's unwarranted.
You don't want to have too many hangers-on attached to the property too early in the game, because as you've correctly surmised, that can encumber the project and make it less attractive to producing partners and networks.
But if the actor you're looking at adds enough value, it may be worth the risk. But you also need to consider whether this photographer brings anything else to the party… And consider whether you want to expend your capital this way. If so, fine…
But you really aren't in a position to guarantee the credit. The best you can really do is promise to TRY to get him a credit. You can agree to give the credit “subject to network and third party financier approval”.
And, you should limit the credit to the pilot episode if you can. And, it should only be accorded IF the actress is actually in the pilot. The point is, you want to restrict and limit things as much as possible.
But now let's talk a little bit about bargaining power… Based on what's described here, you're in a pretty strong positions in ethics actress is already interested, you may not really need this guy. You could try to contact her directly, or through her agent or manager. Hide is what you'd have done anyway…. Right?
This photographer could try to stir up trouble if you do, but he'd have a hard time convincing anyone that his mentioning your project to her really amounted to a major contribution. And, that's a bridge you could just cross later when you come to it.
So ultimately, any way you look at this there's a gamble involved. Do you attach this guy by making some promises about credit and maybe a little money, but risk turning off potential network partners? Do you just go ahead without making him any promises, and risk him threatening or even actually suing you?
In the end, I'd, probably recommend offering to try to get him a credit of some kind, but I'd certainly hedge things by making everything subject to network approvals.
Oh, and if you're going this route, stay clear of any language that says “best efforts”. That's a common bit of wording that gets misused a lot. It has more legal “teeth” than you want in this scenario, so don't fall into that trap.
So, that’s it for this session.
If you've got an entertainment law or business question you'd like answered, send it at http://firemark.com/questions.
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Fair Use – https://www.youtube.com/watch?v=DlIXcqnVM50
Can you mention famous people in your book, play or movie?
I'm Gordon Firemark, and this is Asked and Answered, where I answer entertainment law questions like this so you can take your career in entertainment to the next level.

Daniel writes in with this:
“I just completed writing my manuscript. In it, I make references to several famous college head football coaches, who are still living, and one NFL coach who is now deceased. The five collagen head coaches listed are in a recruiting trip trying to convince the nation’s top quarterback in high school football competition to play at their university. Is it permissible to use theses coach's names and give them a speaking role in the narrative? Also, am I allowed to make references to song titles and famous quotes, such as JFK's speech, (ask not what this country can do…), or a quote from Napoleon Bonaparte, and so on and so forth…. Thank you.”
So here we go.
This is a fairly complex question with lots of moving parts and variables. It involves several legal principles, but the Basic rule is that you don’t need permission to simply mention someone’s name (living or dead), as long as your discussion is TRUE., and isn't revealing any private information, and as long as it's not commercial, like attached to a sales pitch, advertisement, etc.
But if you’re including these people as **characters** in a work of **fiction**, you are by definition creating something that’s NOT true. It didn’t happen. So, it’s false. If it’s harmful to their reputation, or creates some implication that they endorse your book and its message, you could encounter trouble.
Song TITLES are generally OK, as long as you don’t say “song title was written by a child molester” or something… Thereby make a false, damaging statement about the songwriter.
Now, Quotes are very dependent on how much you take, from whom, and from how long ago.
For example:
Napoleon’s stuff is in the public domain. It's long enough ago that I feel very confident in that statement. JFK’s is in the public domain, if it was something he created while he held government office. But if it was something he wrote before he was elected, it's probably protected.
Most of Martin Luther King’s speeches, and writings, however, are still protected by Copyright, so they’re off-limits unless you get permission from the Trust that manages his estate. OR, of course, unless your use amounts to FAIR USE… But that's another video entirely… Look in the notes down below for a link.
OK, so your best bet, is to have a lawyer or a research firm carefully review and annotate your manuscript to identify any potential trouble spots.
Then, armed with their report, there are some judgment calls you’ll need to make about whether to keep things or discard them. A lawyer can certainly advice and counsel in this regard.
Thanks for a Great question, Daniel!
And if you have a question you'd like answered here… Submit it at http://firemark.com/questions.
See you next time.
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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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A fellow attorney wrote in with a question about using short film clips…
Hi, I am Gordon Firemark and this is asked and answered, where I take your entertainment law questions so you can take your career and business in entertainment to the next level. Stick Around for my answer.

 
OK, here's what this fellow lawyer asked:
I am in the legal field, a Barrister in England and Wales, and I am now living in the USA.
I wanted to create a series on English Law on YouTube and use clips from different movies for some of my examples. The clips would not be more than 15 to 30 seconds most. I will also intend not to use the heart of a film. I may use 7-10 different clips from 7-10 different movies or videos, small 15-30 second portions. In total I wish to say it would not be the majority of the work. This would be strictly for education and non-commercial purposes. I would only use the video as I would transform the video with legal examples. I am also using my own sound.
OK, so here what I told this fellow.
First… the “best practice” is to obtain licenses.
Sure, it’s possible that such short clips would be found to be fair use, and therefore non-infringing, I think there’s a reasonably high degree of risk that someone will object, and file DMCA Takedown notices, (at least), and possibly sue you. And lawsuits are never any fun… They're just colossally expensive.
That said, there has been recent ruling in Lenz v. Universal that tells us copyright owners are required to consider fair use before issuing DMCA notices… But who knows whether that will survive further appeal… And that's in progress right now as I record this in November of 2015.
So, let's quickly recap the four fair use factors.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered are:

* the purpose and character of the use, including whether such use is of a commercial nature or is 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 or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
But even if you’re in Fair Use Territory, though, remember… if you get too many takedown requests, your Video hosting provider (YouTube or whatever) will shut down your account, and it’s very difficult to get reinstated. It can be a real black mark.
So… my usual advice is license the footage. Such short clips probably won’t cost much. You might even get ‘gratis’ permissions, if you ask nicely and explain what you're working on..
Now I did a video a while back in which I explain how Fair Use works… And it's at
My video about Fair Use is at: http://firemark.com/fairuseinbrief
If you have a question you'd like to see answered here on Asked And Answered, head over to http://firemark.com/questions and drop me a line.
See you next time.
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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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Blog Reader “Bob” wrote in with the question about what sometimes referred to as a favored nations cause.
I'm Gordon Firemark, and this is Asked and Answered. My answer is just a minute away.

 
 
Blog Reader “Bob” wrote in with this question:
“If a theatre is seeking grand rights to use a song in an original musical, and the publisher quotes a royalty of X% of weekly gross pro-rated among all copyright protected songs in the musical, does that mean one would divide the %weekly gross by the number of copyrighted songs in the production and pay them that, or is there a different legal meaning to the phrase that was used?”
Your interpretation is *mostly* correct.
Technically, I'd say that songs need not be “copyrighted” in order to be counted as the denominator in the equation to determine the pro-rate proportion for each song. After all, all songs in the show contribute equally to the impact the show makes, so why should the fact that one's covered by copyright and one's not make a difference.
So, if you've got 10 songs (copyright protected or not), each song would get 10% of the overall royalty rate (assuming all songs are on a “most favored nations basis”.)
When you see that a deal point is treated on a Most Favored Nations basis, it means that No other deal (of its kind) will contain more favorable terms than the one in question, and if any other deal DOES include more favorable terms, then all such deals will be “upgraded” to those better terms. Essentially, parties are hedging their bets that someone else could negotiate a better deal, and everybody would benefit. This kind of provision is almost universal in Grand Rights license deals.
“Most Favored Nations” is a shorthand way of expressing this, and the phrase originates in the field of international trade… In effect, a country that has been accorded MFN status may not be treated less advantageously than any other country with MFN status by the promising country.
But savvy publishers might recognize that some songs are not copyright protected, or non-royalty bearing, and ask that they be excluded from the calculation. In such a case, the non-copyright protected works would NOT be receiving Favored Nations Treatment, so I'd resist this if possible.
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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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Will you get in trouble if you name your characters after famous characters from an older book or film?
Hi, I'm entertainment lawyer Gordon Firemark, and this is Asked and Answered, where I answer common entertainment law questions, so you can take your career to the next level.

Clark is an aspiring author working on a high epic fantasy novel… He has a question regarding characters after reading some of my posts on the King Arthur and Robin Hood stories. He writes:
“In my fantasy world, there is a kingdom where the regnant names of the kings come from King Arthur's Knights of the Round Table. These names are spelled exactly alike the characters of the Round Table. Only the names are used. There is no other connection to the characters of the Arthur Mythology. Is using these names a copyright infringement risk?”
Well, the short answer, Clark is no. I can confidently say that there's NO risk to using the names of Arthur, Lancelot, Guinevere, Merlin, and so on in your book… at least not any legal risk.  Some publishers might feel that it's too derivative, or whatever, but that's an artistic decision best left to artists and marketers.
So, there are actually a few levels to this.
First off, those characters were initially created in the 1680's or thereabouts, so any copyright protection for the stories in which they appeared has long since expired. In fact, at that time, in England there wasn't even a law equivalent to copyright… protecting the work of authors. The Statute of Anne wasn't enacted until 1710. When it went into effect, protection lasted for 14 years.
Modern copyright law protects things for a considerably longer time, 70 years beyond the author's death. So even under the modern approach it would still be expired.
But there's another aspect to this… character names aren't protected (much) by copyright. Copyright requires originality to get protection… and given names like Arthur and Merlin probably don't qualify.  Even for the less common sounding names, they're only a small part of a much larger whole, so a Court would probably find that taking just the names, without the accompanying storylines, or other characteristics is what we call “de minimis”, and thus not copyright infringing.
But you DO need to beware when using some kinds of character names… for example “Harry Potter”, is a trademark.  It is protected against any use that would cause a likelihood of confusion among consumers. If you were able to write a book about a character named Harry Potter, people might think it was either written by or authorized by JK Rowling… and she's got strong reasons to want to prevent that.
But even that protection has limits… so if your characters Arthur, Lancelot, Merlin and Guineviere are sitting around talking about their favorite books, or characters, and one of them mentions “Harry Potter”, that would be OK.
But any further discussion on this will take us down a deep rabbit hole… so let me just suggest that if you're going in that kind of direction, consult a lawyer.And to get your question answered here, just hit me at http://firemark.com/questions.
See you soon.
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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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Does a song have to be registered with the copyright office before you can obtain a license to use it in your film or other project?
Hi, I'm entertainment lawyer Gordon Firemark, and this is Asked and Answered, where I answer common entertainment law questions, so you can take your career to the next level.

Michael wrote:
With USCO processing time for e-filing generally up to 8 months (13 for paper!), and $800 for expedited processing, my question is: for purposes of clearing a piece of music (say for use in a TV show), would that specific piece have to have gone all the way through the Copyright Office and received a certificate of registration from the USCO?
A:   No.
You don't need to have a registration to own a copyright, or to do anything with the copyrighted work. Clearing a piece of music simply involves tracking down the rightful owner or owners and getting the required permission in the form of a license. Whether the work is registered is largely irrelevant.
Even if the music in question is NEVER registered with the copyright office, you can obtain a license… If you can find the owner… And that's one of the main reasons we have a registration system… So we can track down who owns a particular work.
With music, there are a few other ways… Start by searching the online catalogs of the Performing Rights Organizations ASCAP, BMI and SESAC… It's likely that the work is registered with one of them, and that catalog will tell who the songwriters, publishers and administrators of the song are.  Then, contact those folks with your license request, and you're good.
If you still can't find who owns the piece, you can try searching Google, YouTube, SoundCloud, and any other online resources, but the results aren't going to be quite as reliable. If you aren't certain you've nailed down the owners, I'd recommend using a different piece of music.
And to get your question answered here, just hit me at http://firemark.com/questions.
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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

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Do you need permission to write a book based on your interviews with public figures?
Hi, I'm entertainment lawyer Gordon Firemark, and this is Asked and Answered, where I answer common entertainment law questions, so you can take your career to the next level.

So, Stephen has been interviewing some celebrities, and plans to feature their remarks, stories and such in a book he's writing.
Some of the interviews are in-person, sit-down type discussions, and some are being done by email, with the celebrities writing their answers to the questions themselves.
Does Stephen need to have to have these folks' permission to include them in the book? Do they have to sign a release form? Even if they write the answers themselves?
A: As you probably realize… Celebrities can and do sue when their names or likenesses are used in a way that creates a false endorsement or implies some kind of sponsorship or approval of the material. Now, in the case of an interview included in a book, it's probably not a commercial use that would give rise to a Right of Publicity claim, but a celebrity with a smart lawyer will probably claim that even though there was consent to the interview, you used it in a way that wasn't authorized… So that's a breach of contract, or even a Fraud claim. And, if the celeb actually wrote the words you used… That could mean a copyright infringement claim.
Sure, you have a bunch of defenses… Free Speech, Newsworthiness of the content, Fair Use (of copyright material), and there's always the alleged consent. But unless you have something in writing, you're going to be fighting an uphill battle.
Written consent is always the best defense. It's your “get out of trouble free” card when these claims, however frivolous they might be, come along.
But written consent isn’t always possible. Lots of folks get leery when presented with a release form to sign… So, if you're recording the interview (again, in most states you need consent to do that), you should record the person saying “yes” in answer to your request.
So, if it was me, I'd start the recorder, and say, “I'm Gordon Firemark, and today is July 3rd, 2015. I'm recording this interview with Suzy Starlett. Suzy, you understand that I'm recording this interview, and you consent to me using this recording as part of my book (which is tentatively entitled “homely Hollywood harlots” and in all other media and languages, everywhere in the world, forever?”
Make sure the recording can hear and see (if it's video) that the person is giving consent.
Now, if the person you're interviewing a true public figure, someone who's in the public eye because of their work, or other events they've participated in, you are probably OK, even without the consent, because the First Amendment provides protection, at least against the privacy kinds of claims. But do yourself a favor… Get the consent.
Now, in the situation where the celeb is writing the responses him or her self, you absolutely MUST get written permission to use it. Without it, you won't be able to publish your book.. Publishers will insist.
Interestingly, the question of who owns copyright in an interview is a subject of some controversy. The copyright office has said that it's two copyrights. The interviewer owns the questions, and the subject owns the answers…. Again, unless you have something in writing, or some other proof of the consent, and authorization to use the thing. So, just avoid any doubt about things… get a release. In writing, if at all possible.
And by the way… This same advice goes for anyone creating any kind of media. Blogs, podcasts, YouTube videos… If you've got other people's stuff (whatever kind) in your content… Yo...