Transcript Digital Moviemaking - Pennsylvania State University

Digital Moviemaking
Rights…
Camera…
Action!
Websites
• IMDB: movie information database
http://www.imdb.com/
• YouTube: movie clip database
http://www.youtube.com/
• U.S. Copyright Ofc: Copyright Intro
http://www.copyright.gov/
• Protecting Characters:
http://www.publaw.com/fiction.html
http://www.ivanhoffman.com/characters.html
• Unsolicited Ideas:
– http://www.moviepitch.com/
What Laws impact Moviemaking?
• Employment, Supply Chain &
Outsourcing
– Screen writers, actors, extras, film
crew, 3d Parties, distribution, video
sales, TV broadcast
– All involve rights transfers & new
duties
• Intellectual Property (IP)
– Copyright
– Trademark
– Trade Secrets
• Privacy Law
Does Intellectual Property (IP) Matter?
• Protecting your “Work”
– Studios demand & profitable business models
require “monetizable” rights
• Protecting your ”Self” & your Organization
– Infringement risk management
– Many creators transform from others’
– Employees, 3d party service providers & subcontractors also transform
• Or…Red Hot Chili Peppers’ Motto
– “Give it away, give it away, give it away, give it
away, now”
– But even P2P has a business model
• Paid for by banner ads, referrals, PII dossiers
– There are limits to P2P’s “15 minutes of fame”
Rights, Physical & Technical Security
• Music Industry
– Owned or locked up all vinyl presses
– Analog audio tape threatened
– CD burners & P2P really hurt
• Movie Industry
– Developed the film, locked up the reels
– Control the projection of films
– Videotaping
– DVD burning restricted by h/w & s/w
• TV Industry
– Lock on all broadcast transmitters
– FCC Licenses & network distrib control
Overview of Intellectual Property
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Copyrights: expression
Trade Secrets: information, ideas
Unfair Competition
Trademarks & Trade Dress: symbols
Patents: inventions, processes
Sui Generis Protections:
– Semiconductor chips, asexual plants,
designs, petty patents, Databases, boat
hull design
• See:
http://faculty.ist.psu.edu/bagby/IP-COMPR.pdf
Trade Secrets
• Information
– EX: formula, pattern, compilation, program,
device, method, technique, process,
data,script idea
• Derives independent economic value
– From Secrecy, or
– If competitor uses a proper means to
discover the information, and
• Subject of reasonable efforts, under the
circumstances, to maintain secrecy
• Databases protectable as Trade Secrets
Submission of Unsolicited Ideas
• Is it Sensible to Pitch Your Idea for a
Movie, TV, Game, Book to a Studio or
Producer?
• Does an innovator have any rights to
compensation if another uses their ideas?
• Unsolicited ideas are a gift to the recipient
• The blurter loses – unless:
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Express contract: offer, acceptance,
consideration
Implied contract from conduct or context
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Course of performance/dealing, usage of trade
Unjust enrichment under quasi-contract
Confidentiality & trust relationship
Submission of Unsolicited Ideas
• The Idea must have Certain Properties
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Novelty
Concrete - Sufficiently definite to implement
• Many recipients simply refuse to “listen” or
consider
Evaluation is Costly
– Could complicate if already under development
in-house
– Independent Evaluation is Possible
– Google this: “submission of unsolicited ideas”
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EX:http://www.apple.com/legal/policies/ideas.html
Copyrightable Subject Matter
• Originality
– Min. personal creativity/intellect
required
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Work of Authorship
Expression
Fixation in Tangible Medium
Not Protectable under Copyright:
– Ideas, Facts, Data
Trademark Protection
• Word, Name Symbol, Device
– Recently: color, sound, smell, fictional
characters
• Identifies Source of Goods or Services
– Distinguishes from competitors
• From Unfair Competition (Palming off)
• Protection Schemes:
– State C/L, misappropriation, unfair
competition
– Federal registration under the Lanham Act
– Int’l: Paris Conv, Madrid Arrange, Pan-Am
Distinctiveness
• Capacity to distinguish owners
goods or services
• Scale from Descriptive to Distinctive
• Scale of Increasing Protectability &
Decreasing Distinctiveness
– Generic
– Descriptive
– Suggestive
– Arbitrary or fanciful
Privacy Rights Under State Law
• Four major common law privacy rights
– (1) intrusion upon seclusion,
– (2) public disclosure of private facts
– (3) false light
– (4) misappropriation.
• Most exist in some form in all 50 states,
largely by common law precedent
• A few states have codified into statutory
provisions
Intrusion upon Seclusion
• Section 652B of the Restatement (2d)
of Torts is most common form of the
intrusion tort that protects the
sanctity of the “right to be let alone.”
• Individual must prove three
elements:
– (1) The intruder intended to intrude
– (2) There was a reasonable expectation of
privacy under the circumstances
– (3) The intrusion is substantial and therefore
highly offensive to a reasonable person.
Public Disclosure of Private Facts
• Section 652D of the Restatement (2d) of
Torts has been called an extension of the
tort of defamation
• Prohibits only highly offensive and broadbased disclosures of highly embarrassing
& private facts, not newsworthy
– Individual whose private facts are revealed is
seldom successful
• Courts balance the media’s 1st
Amendment rights to exercise news
judgment in determining the public’s
interest in the facts
False Light
• False light tort prohibits
– Making a false connection
between
• A person and illegal, immoral or
embarrassing activity
• This link causes injury to the person
• Similar to Public Disclosure of
Private Facts
Misappropriation
• Right of publicity
– a/k/a: Personality Right, Appropriation
Right, Misappropriation
• Resembles a property right in one’s
own personality
– Protects individual’s right to control
commercial exploitation through
endorsement
• Resembles misappropriation of
Trade Secrets
– In some states the misappropriation
right does not survive the individual’s
death giving no rights to next of kin
Types of Copyrightable Works
Literary works
Pictorials, graphics,
and sculptures
Musical works
Motion pictures and
A/V works
Dramatic works
Sound recordings
Pantomimes and
choreography
Architectural works
Non-Copyrightable Materials
• Ideas are not copyrightable
– Only the expression of ideas
– Includes ideas, procedures, processes,
systems, methods of operation,
concepts, principles, or discoveries.
• The idea-expression dichotomy rule
– Creators, authors, writers can control
ideas only if they qualify as patentable
or remain trade secret
Bundle of Rights under Copyright
• Reproduce: make copies, fixation
• Derivative Works: editorial change or adapt to
other market, medium
• Distribution: sale, rental, loan, gift, transfer
for- or not-for-profit
• Display: public viewing using mechanical
means
• Performance: recite, render, play, dance, or
act directly or w/ device (projector, PA)
• License: temporary, revocable right to use
• Assignment: permanent, transfer of
ownership of some or all in bundle
• Digital Transmission: on demand broadcast
of sound recording
Copyright Procedures
• Easy/inexpensive compared to patent
– Arises automatically when fixed in a
tangible medium of expression
• EX: printed, recorded, photographed,
sculpted, formed, saved
• Registration & Deposit w/ Copyright
Ofc
– Technical adv. if regis. w/in 5 yrs of pub
– Problems: software code has trade
secrets
– No longer prerequisite to infringement
suit or moral rights
Moral Rights
• The Moral Rights Principle:
– Author or owner retains right to prevent:
• Distortion, mutilation or modification
– Author’s discretion to permit derivative works
• May consider damage original’s artistic integrity, &
author’s reputation or honor
• Much Stronger in Europe than in U.S.
– Berne Convention & U.S. implementation
– Alternate U.S. bases: trademark & privacy
• Artistic control may be retained by
contract, veto right over scripts,
particular actors or musicians, require reshooting …
Fair Use Exception
• Infringement Excused, even w/o
Permission:
– Criticism, comment, news reporting,
parody, teaching, transformation,
scholarship or research.
• Fair Use Factors:
– Purpose & character of use
– Nature of copyrighted work
– Amount & substantiality used
• In relation to original
– Impact on original’s potential market &
value
Fair Use: Parody
• Parody
– EXs: 2 Live Crew’s Pretty Woman,”
Weird Al Yankovic’s works,
• Most Famous Remake: Shakespear’s
Romeo and Juliet…West Side Story
http://www.rit.edu/~423www/performing_
arts/comparerj.html
Copyright Ownership
• Author Presumed to Hold Bundle
• Unless Commissioned as a Work
Made for Hire
– Prepared by emp’e w/in scope of empl
– Employer or commissioner of work
owns
• EX: Microsoft owns all employee
programmer’s code
• Joint Works - Multiple Owners if:
– Contributions inseparable
Notice: © 2001 by John W. Bagby
• Pre-1976 revision: notice
required on all visually
perceptible copies, unless
cured, copyright was lost, still
governs events before 1989.
• Post 1976: precludes infringer w/
access to original making
assertion of innocent
infringement
• Notice may deter infringement
• Also: copr. or copyright
Duration
• Post-1977 Works
– Life of author + 50 yrs
– Works made for hire • 100 yrs. from creation or 75 yrs from
1st pub.
• Pre-1978 registered works - 28
years
– Renewable for another 28 yrs.
• Pre-1978 unregistered works only C/L
– No life+50
Infringement Analysis
• Copying or the Violation of any 1
right in the Bundle
• Proof of Copying - Expert Testimony
– Access to original suggests copying
possible & explains similarities
• Proof of Illicit Copying - No Experts
– Substantial similarity in expression
only
– Idea-expression dichotomy
– Qualitatively vital elements “essence”
– Eliminate unprotected ideas, scenes a
faire