MiniMusings

The Law Office of KEVIN KOLOFF

Short essays on common misperceptions, thoughts about the business, and self-serving (but true) opinions on why you may need a lawyer sooner than you think.

 

 

FAIR USE:  Don’t count on it!

 

I can’t tell you how often I get some variation of the question:  “This is a documentary, we can use whatever film clips we want, right?  It’s Fair Use, isn’t it?”  Or, just as often:  “I put new words to this popular song – that’s a parody, which is Fair Use, right?"

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Fair Use is one of those copyright concepts where a little knowledge is a dangerous thing.  You can find long dissertations on the Web – lots of them – that describe what Fair Use is, and go into detail about the holdings of the case law on the subject.  I’ll forego that much detail here.  Here’s what you need to know, in a nutshell:

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First, there is no “test” for Fair Use the way there’s a test for glaucoma.  The general intention of the Fair Use provision of the Copyright Act is to give a little leeway for criticism and commentary (the classic example is the book critic citing a few lines of a novel to show the author’s writing style as part of a book review).  But there are no hard and fast rules about what fits within that general intention.  The copyright statute gives a four-item laundry list of factors for a judge to consider in determining whether something is Fair Use.  

 

The factors include the nature of the use you’re making (for example, is it for profit?), whether you’re affecting the market for the original work, the nature of the original copyrighted work, and the amount of use you’re making (one percent of the original?  Eighty percent%?).  The law doesn’t dictate how much weight each factor is to be given, or give any particular guidelines about how to look at the laundry list. 

 

This makes it hard to know with any certainty if you’re within the limits of the law in using whatever film clip or song excerpt you’re putting in your TV show. 

 

But trust me on this much:  just because your film is a documentary doesn’t mean you can use whatever copyright-protected material you want without the owner’s permission.  Talk to a lawyer; give him or her the details.  Even then, you’ll almost never get an opinion that says, “I’m 100% sure this is Fair Use;” the concept is too subjective.   But you’ll get a good idea about the odds.

 

Then there’s the widely-misunderstood notion of parody – especially when it comes to songs.  You wrote some new lyrics to the latest Katy Perry song, and it’s really funny, so you think you’ve created a parody?  Maybe yes, maybe no.  Is your song making some kind of statement about the original work, or is it just using Katy’s melody to say something funny about a particular politician or TV star?  If the former is true, you’re more likely to have a real parody, and that may mean your song is Fair Use.  If not, you’re probably just committing copyright infringement.

 

And a lot has been written about the 2 Live Crew case, in which the popular rap group did their own salacious version of Roy Orbison’s “Oh Pretty Woman.”   Too many people – including too many lawyers – think that the Supreme Court decided in this case that parody is Fair Use and therefore a parody is immune from an action for copyright infringement.  Volumes have been written about this, and you can find lots of detail easily enough with a few clicks.  But once again, trust me on this:  the “Pretty Woman” case is NOT a license to infringe copyright by writing parody.  The Supreme Court thought that the U.S. Circuit Court had oversimplified the process for determining whether something is Fair Use, and had not properly considered all of the four factors discussed above – so the Court sent the case back down for reconsideration.  Before that reconsideration could happen, the parties settled, so we’ll never know how the Supreme Court – or any court – would have adjudicated the actual question of whether 2 Live Crew’s song was copyright infringement.

 

So it’s hard to know if something is Fair Use, and a parody defense may or may not win.  That leaves you, if you’re wondering whether it’s OK to use something, in a tough place.  You may do all the research, and genuinely believe you’re making Fair Use.  If the owner of the original copyrighted work doesn’t agree with you, and has the means and temperament to do something about it, you’re still going to get a claim, maybe a lawsuit. 

 

If you’re making a movie or TV show, the odds are you’ll have to get an Errors and Omissions insurance policy, which covers you in the event of a copyright claim.  In that case, the real-world answer to the Fair Use question is to convince your insurance carrier that the odds of something being Fair Use are good enough to get them to issue the policy (without an exclusion for the questionable clip or song or excerpt).  A good lawyer can help you do this. 

 

And if your use of the material isn’t covered by an insurance policy – well, all I can say is, be careful out there. 

 

 

MIXING BUSINESS WITH FRIENDSHIP:  OK by me!

 

I don’t agree with the old adage that business and friendship don’t mix.  Sure, anytime you get into business with a friend (or relative), there is some risk that some business dispute will affect, or even destroy, your relationship.  But I think that if the proper precautions are taken, that risk is low enough that it shouldn’t stop you from doing business with someone you know – especially if the upside is good.

 

But first, let’s emphasize the downside:  I can’t tell you how many times I’ve had clients come to me, after everything has gone down badly with some friend or relative, and the problems are hard to resolve, because no one ever bothered to put the terms of their understanding into writing.   Typically, neither party thinks it’s necessary, since “My friend/cousin/bridesmaid/college roommate would never screw me!”  It’s much like a prenuptial agreement:  “We truly love each other, we’ll never need that.” 

 

But two things can happen to drive a wedge between you and your friend:  things can go really well, or things can go really badly.  In the first case, there’s real money at stake, and you’d be shocked how that brings out the worst in people.  In the second case, each party is blaming the other for the failure, and looking to get out with as much as possible.   I’ve seen best friends end up doing spectacularly well together.  But I’ve also seen them hating each other and suing each other – and it could have been prevented.

 

So when I refer above to the “proper precautions,” I’m talking – if you haven’t figured this out – about a written contract of some sort.  If there’s enough money to do it right, each side should hire a lawyer and get a formal document drawn up and negotiated.  If not, at the very least, you should send your new business partner an email with the details, in as clear language as possible, of what you expect, and what you think the deal is – and insist that they respond in writing, either by confirming that they agree with you, or telling you where there is disagreement.

 

There are two big benefits to doing this:  the first is that, if things get contentious later, you have a document to rely on to settle a dispute about how the deal was supposed to go. 

 

The second reason is even more important, in my experience:  the very making of the written document clarifies the deal points.  You start asking questions, like:  “What if we sell this TV show to NBC, but we can’t agree on whether to accept an offer?” or “What if the studio likes the script but won’t attach you to be the director?” or “If I don’t like the words you write to my music, can I take my music back and go to another lyricist?”  You start talking about the questions, coming to agreement on some of the “What if’s.”  You find the places where, to your surprise, your new business partner has completely different expectations from yours—and you talk those differences out.

 

Sometimes, in the course of trying to put their understanding into writing, two friends find that they have major disagreements about how the deal should look, and they really don’t want to do business together after all.  To state the obvious, it’s a lot better to find that out at the start of the process than after you’ve invested your time and money.

 

Business and friendship can mix.  Business and sloppiness?  Not so much.

 

 

REALITY TV COMPETITIONS:  The World’s Worst Contracts.

 

That title is not an exaggeration.  I’ve seen one-sided contracts, I’ve seen unfair contracts, I’ve seen contracts I could describe as “give us your right arm and your first-born for a shot at fame.”  But nothing beats what the networks want you to sign if you’re lucky enough to get into, say, the top 30 on a reality show that is a competition, like American Idol, Nashville Star, The Biggest Loser, the now-defunct Rock Star, and so many others. 

 

If you’ve never seen one of these documents, you might be surprised what it contains.   Some examples  are as follows (I won’t identify which clause comes from which show, but all of these are paraphrasing of real clauses from real contracts from reality TV competitions—some named above, some not):

 

--You agree that you have no privacy.  We can put cameras in the house you’re going to live in while you’re competing, and there may be hidden cameras in the living room, the bedroom, the bathroom.  We can use it all, however we want to.  If we find something, inadvertently or otherwise, that’s
REALLY private, like your medical records, some pills in your medicine cabinet, or the birth control device in your bedside table – fair game.  We can air it, write about it on our website, ask you about it in front of a nationwide TV audience.

 

--You agree that we have exclusive rights to your life story.  Not just your life story, but anyone in your family – if one of them should become famous, or even interesting, and wants to write an autobiography at any time, they can’t, because you have to get them to sign their exclusive life story rights to us.

 

--You agree that we can cut the footage of you in a way that makes it look like you said something you didn’t, or makes it look like you did something you didn’t do.  No matter how misleading the editing is, no matter how bad it makes you look, even for something you didn’t do or say – that’s show biz. 

 

You may ask, what’s up with this?  Are they really going to show footage of me in the bathroom?  The answer is, no, they probably wouldn’t.  But by making you sign away rights in an extreme way, the network and producers protect themselves against less-extreme grievances you may have.  For example:  let’s say a contestant is shown on TV crying their eyes out, and thinks that the cameras have invaded their “private moment” and made them look bad, and wants to sue the network (people have sued for far less).  The bathroom clause (which is really much longer than the summary I provided) gives the network a great defense:  “If this contract gives us the right to outright lie about you, and show you in the shower, how could showing you crying possibly be a violation of your privacy, or make you look bad enough that you can sue us?”

 

Can you negotiate these clauses out of the contract?   Probably not.  The sheer number of contracts means that the producers can’t negotiate each one of them.  Some shows let the group of finalists appoint a single lawyer to represent the whole group, and if pushed by that lawyer, they make a few changes in the form.  Not much of substance gets changed, but it lets the network say that the talent was represented by legal counsel.

 

Of course, no one I know of has ever refused to go on American Idol or So You Think You Can Dance because the contract was onerous.  We’re all too eager to show the world what we can do, and just maybe become a star in the process.   That’s fine – but at least take the time to read the contract, to ask questions about it, and find out just what you’re agreeing to. 

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