Indiefilmlaw's Blog
Ideas, Inspiration and Legal Resources for Artists, Filmmakers, Producers and Film Students

Jul
19

Lawsuit alleges that idea for “Ted” the foul-mouthed bear was stolen

A production company in California, Bengal Mangle Productions, has filed a lawsuit alleging copyright infringement over the 2012 movie about a foul-mouthed stuffed toy, according to The Hollywood Reporter. The lawsuit alleges that Seth MacFarlane Fuzzy Door Productions, Media Rights Capital, and Universal Studios stole the idea behind “Ted” a stuffed animal that lives in a human world, is vulgar and likes drinking, smoking and prostitutes.

In order to prove copyright infringement, one must show copying of the protected elements of a valid copyright. Funky Films, Inc. v. Time Warner Entertainment Co., 462 F.3d 1072 (9th Cir., 2006) Typically, ownership is less of an issue than “proof of infringement,” which involves fact-based showings of “access” to the protected work and “substantially similarity between the two works.

The complaint, made available by The Hollywood Reporter, claims MacFarlane and the other defendants had access because the character of “Ted” was taken from the screenplay for a work called Acting School Academy that features a character named “Charlie” who “lives in an adult world with his human friends and “has a penchant for drinking, smoking, prostitutes.” Acting School Academy was turned into a web series featured on YouTube and iTunes as early as 2009 and the Charlie character had a YouTube spinoff titled “Charlie the Abusive Teddy Bear.” MacFarlane’s Ted didn’t play in theaters until 2012.

The lawsuit claims, the “Ted character is strikingly similar to Plaintiff’s Charlie character. Like Ted, Charlie lives in a human world, is vulgar and likes drinking, smoking and prostitutes.”

While on the surface it appears that Bangle Mangle has a viable copyright infringement claim, it is more complicated. The premise of the copyright infringement claim – one that has been completely overlooked by most media – is the assumption that the “Charlie” character is protected under copyright law.

A recent 7th Circuit court case examined the boundaries of protectable story characters in the context of literary works. “The more vague, the less “complete,” a character, the less likely it is to qualify for copyright protection.” For example, “a character described merely as an un-expectedly knowledgeable old wino,” may not be protectable. However, “a character that has a specific name and appearance” whose attributes include “what he knows and says, his name, and his … facial features combine to create a distinctive character. No more is required for a character copyright.” Klinger v. Conan Doyle Estate, Ltd. No. 13 C 1226 (N.D. Ill., 2013)

The result in Bengal Mangle Productions, LLC v. Seth MacFarlane, et al. 14-cv-5498 (C. Dist. CA 2014) will no doubt turn on the scope of protection afforded to the bear’s character.

David Adler is the founder of Adler Law Group and practices in the firm’s technology and intellectual property sections. David’s practice primarily involves assisting companies in commercializing and protecting their intellectual property and technology assets. David’s clients range from software companies to film production companies to digital content aggregators. For additional articles on IP, media and entertainment law, visit adlerlaw.wordpress.com.

Apr
10

Meet the Boise Film Underground, a Band of Indie Filmmakers Hard at Work in Idaho

Indie Wire (blog)

Thriving in the burgeoning heart of Idaho’s cinema scene is the Boise Film Underground, a collective of hard-working, independent-minded filmmakers.

Michel Gondry’s next film is about teenage runaways

A.V. Club DC

Michel Gondry’s next film is about teenage runaways … French director Michel Gondry is known for the surreal filmmaking style he applied to … to the world of indie films, releasing the dreamy French romance Mood Indigo.

ECU Film Festival President Scott Hillier’s vision to help filmmakers

Film Industry Network

This year the ECU Film Festival has screened a host of independent films from all over the world connecting audiences of different cultures and beliefs

Jan
19

David:

In a word, captivating!

Originally posted on waitingforistanbul:

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In The Beckoning Silence, Joe Simpson–whose amazing battle for survival featured in the multi-award winning “Touching the Void”–travels to the treacherous North Face of the Eiger to tell the story of one of mountaineerings most epic tragedies. As a child, it was this story and that of one of the climbers in particular, that first captured Simpsons imagination and inspired him to take up mountaineering.

Toni Kurz was a brilliant young mountaineer, who along with three other climbers tried to climb the mountain in 1936, which was then the last great unconquered peak in the Alps. Their assault on the mountain started well, but then disaster struck. One by one Kurzs colleagues were killed, leaving him alone, hanging on the end of a rope fighting for his life in the most horrific of circumstances. Over 50 years later in Peru, Kurzs story haunted Simpson as he battled for…

View original 713 more words

Jan
06

David:

Great post on the need for the Oxford comma. Amazing how such a small thing makes such a big difference.

Originally posted on Squirrel Thoughts:

Oxford comma-nistas around the world are having a heyday over a recent push alert sent by Sky News, which they believe is the end-all, be-all argument in favor of their precious punctuation mark.

Comma

Now, let’s be clear: The Oxford comma is necessary in this “sentence” as it’s written. Obviously, there are some pretty serious implications without it. However, this whole “sentence,” if you can even call it that, could be rewritten for clarity, and we would not have been subjected to all this nonsense in the first place. The Oxford comma-nistas would never suggest that though!

See, the purpose of a comma when used in a list is to replace the word “and.” When you use an Oxford comma in a list of three or more items, it’s redundant. You’re essentially writing “and and.” And that’s just silly.

Let me spell it out for you using another famed Oxford comma-nista example:…

View original 326 more words

Dec
13

News of Paul Walker’s death was tragic and unsettling. As an avid car enthusiast, I am a big fan of the “Fast” franchise of adrenaline pumping car chase movies. I’m sure I join his many fans in mourning our loss.

Which got me thinking about whether the installment of the film franchise in which he was starring, “Fast and Furious 7″ would be completed. While producers often commission rewrites in the process of making a film, the loss of a key figure in the story line highlights an often-overlooked component of film production: key person insurance.

As Production counsel, one of the many line items on my task list is a slot for insurance. In addition to general commercial liability insurance, I also counsel clients to obtain “key person” insurance (also known as “key man” insurance) to insure against this exact scenario. This type of Insurance may also protect against loss of other key individuals involved in the production. Like many enterprises, film production relies in a variety of key people – writers, directors, consultants – the loss of whom would have a material adverse effect on the film.

In the case of “Fast 7″, it will be interesting to see how, or if, the project continues since that decision may be up to the insurance carrier, according to a recent Hollywood Reporter article. Even though much of the movie has been filmed, many action sequences have not.

While the current producer, Universal, has indicated its desire to continue the project, the insurance carrier may have the final say. At this point, the financial risks such as costs to edit the script, screen and cast new talent, and finish filming will fall to the insurer. The decision to continue filming in the hope that release of the finished movie will generate enough revenue to offset those costs, is balanced against the decision to end production and write-off the cost of the insurance payout.

Clients sometimes laugh at my over-cautious approach to identifying and protecting against risks in film production. This unfortunate tragedy highlights how real, and unexpected, these risks can be.

If you are planning to produce a film or have already commenced production, feel free to contact me for a free consultation. It’s never too late to take a second look at business structure, contracts and other risk mitigation techniques.

I can be reached at (866) 734-2568 or dadler (at) lsglegal.com

For more information about entertainment law, visit my website.

Aug
04

Girish Kasaravalli Hopeful About Future of Indie Cinema
India West

Asked about the viability of indie and parallel cinema at the box office, Kasaravalli said, “The commercial aspect depends on the filmmaker. He has made a film.

France’s New Film Crew Wage Law Faces Legal Challenge
Hollywood Reporter

France’s New Film Crew Wage Law Faces Legal Challenge From The Association of Film Producers (l’APC), the Union of Independent Producers (SPI) and others.

NYC Independent Film Festival is Gearing Up for Its Fourth Year
Consumer Electronics Net

Theyre a part of the NYC Independent Film Festival. The Fourth Annual NYC Independent Film Festival celebrates the art of filmmaking. Whether made by a …

Indie cinema’s success will boost art films in India: Girish
Business Standard

The Indie filmmakers will get an opportunity to make movies independently. They will try to release themselves from the shackles of norms set up by the industry.

Catch up with Fort Myers Film Festival and “Missed It Mondays!”
Naples Daily News (blog)

The Fort Myers Film Festival is an intelligent independent filmmaker’s preferred event to create, unite and showcase the finest artistic cinematic works.

May
24

Entertainment Law Seminar: What In-House Lawyers Must Know About Exploiting Creative Content 

Chicago’s leading Entertainment Law firm, Leavens, Strand, Glover & Adler, is pleased to announce its inaugural Entertainment Law seminar.

This seminar, geared for in-house counsel tasked with managing a broad range of Intellectual Property, Marketing, Branding and Promotions efforts, deals with the role of attorneys and agents, personal and intellectual property rights, motion picture production and distribution, television rights and procedures, literary publishing, and music publishing and sound recordings. The seminar will also examine technological developments and contract negotiation tips.

This Seminar is FREE, but it is INVITATION-ONLY and currently limited to in-house counsel. Space is limited! Contact David Adler at dadler[at]lsglegal.com to get your invitation.

When:

Thursday, June 20 from 1:00 PM to 5:00 PM

Where:

Leavens, Strand, Glover & Adler
203 N. LaSalle St., Suite 2550
CHICAGO, IL 60601

May
02

The Business of Independent Film

For the past few years, the business of creating independent film has faced many challenges. Outside financing has suffered from the “Great Recession” as banks stopped lending, Federal Section 181 film tax credits have evaporated,  State film Tax credit programs have imploded from scandal and debate rages about the effectiveness of such programs. Three of the six major studios axed subsidiaries that had specialized in buying independent films. Consumer spending is transitioning from buying movies to simply renting them.

However, sales at film festivals continue to inspire filmmakers. So do seasoned, household-name producers. I was recently turned on to the text of Steven Soderbergh‘s speech at the San Francisco International Film Festival. Soderbergh discusses the state of the film industry and fellow indie film producer Ted Hope shares how encouragement and inspiration from Soderbergh kept him in production.

The full transcript of director Steven Soderbergh‘s keynote at the 56th San Francisco International Film Festival can be found here.

Every independent filmmaker should listen.

Apr
09

Five Legal Questions To Ask BEFORE Crowd-funding You Next Film (or Creative) Project

Intro

I recently had the opportunity to share the stage at a Chicago VentureShot Community panel presentation on crowdfunding an independent film project. My client successfully raised enough funds to produce his film through the Crowdfunding site KickStarter.com. Due to the unpredictable life with three small children I was not able to physically attend although I did participate in real-time using Twitter. What follows is a series of questions that were discussed during he panel.

If you are considering using a crowd-funding platform (e.g. Kickstarter) to raise funds for your production, here are five questions at you should ask BEFORE you launch your campaign.

1. Are there legal distinctions to using Kickstarter to collect funding for projects rather than doing it the traditional way of seeking investments from friends, family, fools or private investors?

Yes. The biggest difference between the (current) crowd funding method and the traditional equity-investor model is the value proposition being offered in the crowd-funded model. I say “current” because crowd-funding today does permit solicitation or sale of an ownership interest.

2. What are the legal steps to protecting projects before putting them on a Crowdfunding site?

I recommend my clients look at three areas of legal protection before putting a project on a Crowdfunding site.

First, consider forming a legal entity to protect you, your partners and the assets of the business. The most common entities are corporations and limited liability companies.

Second, do a trademark clearance search to make sure the brand names you want to use (e.g. the name of the production company and/or the name of the Film (or project)) are not in use by someone else. Nothing is worse than investing thousands and sometimes tens of thousands of dollars in a project only to learn that you have to change your name.

Third, make sure you have a clear chain-of-title for all the eighths you need to exploit. This means properly documents and executed Option Agreements, Script Purchase Agreements, Talent / Cast & Crew Agreements, Right of Publicity Waivers, Music/Film Score clearances and any other waivers or releases necessary to reproduce, promote, distribute and creative derivative works from the Film.

3. Are there legal upper bounds to funding through Kickstarter specifically?

Wile there are no dollar limits on the amount of money that can be raised using Kickstarter, there are limitations. For example, a project must reach its funding goal before time runs out or no money changes hands. Also, once a funding goal is reached, the project must be started or the money must be returned to the backers.

4. What are the legalities of taxation on film projects through Kickstarter? A they different per state?

Although the federal Film Tax incentives are no longer available many states still offer some. Each state is different and many require a certain amount of money be spent in the state, in a certain period of time, in order to qualify for the incentive. Consult a qualified lawyer to determine eligibility for Film Tax Incentives.

5. If you can’t finish a project that has been fully funded on Kickstarter, what legal liability comes into play?

Yes. Kickstarter’s Terms of Use requires completion of project and fulfillment of offers. Otherwise, one must refund any backer whose reward they do not or cannot fulfill. Crowdfunding sites recognize that projects may not adhere to the original timetables and that delivery goals may need adjustment. If the problems are severe enough that the creator can’t fulfill their project, creators need to find a resolution. Steps could include offering refunds, detailing exactly how funds were used, and other actions to satisfy backers.

CrowdFunding describes the collective cooperation, attention and trust by people who network and pool their money via the Internet to support efforts initiated by other people or organizations. Leavens, Strand, Glover & Adler has a decades long history assisting Filmmaker and Film productions clients (funding portals, broker-dealers, technology solution providers, software developers, investors and entrepreneurs). We provide guidance on regulatory and industry trade association compliance.

Mar
13

What does it mean to be a creative professional in Chicago? That is the topic for discussions during the Chicago Tribune’s Trib Nation event Chicago Forward: The Future of the Arts in Chicago being held tonight, March 13, 2013 at 6:00 PM. In the Chase Auditorium at 10 South Dearborn. The event proposes to discuss the “arts and culture scene in Chicago.” You can register here.

Panelists include Chicago Tribune editorial page editor Bruce Dold and critic Chris Jones as moderators, among with celebrity chef Rick Bayless, Chicago’s cultural commissioner Michelle Boone, artist and playwright Tony Fitzpatrick and renowned architect Jeanne Gang.

While organizations such as the Arts & Business Council of Chicago and the Illinois Arts Council, have long held conversations in the community around identification of the basic challenges facing artists, filmmakers, actors, musicians, and other creative professionals, hopefully this panel will identify actionable initiatives that offer real solutions to shared needs.

I am attending and will be live tweeting via the hashtag #ChicagoForward. Follow me on twitter at @adlerlaw.

Please feel free to tweet your questions and include your comments below. I will post a follow up with highlights after the event.

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