Letters of the Law

Letters-of-the-Law-Header-webThis article originally ran in the January/February 2014 issue of Scene Magazine.

In Letters of the Law, entertainment attorney James Napper, III discusses legal topics and answers questions submitted by Scene Magazine readers, both entertainment professionals and the general public. Submit your legal questions to lettersoflaw@scenelouisiana.com. To contact James Napper directly, email jnapper@napperlaw.com or visit www.napperlaw.com.

Q: The film industry is an increasingly global industry. Can having a US Copyright on my screenplay protect my intellectual property throughout the world, or is it limited to protection in the US only? 

Indeed, the exploitation and distribution of film, television and new media is a global industry, and this presents a wonderful opportunity to discuss copyright from an international perspective. The short and simple answer is, yes, qualification of a work under the copyright laws of the United States should provide protection for your work internationally, or at least in the major international markets you are most likely concerned with, including China. There are two principle international conventions providing for copyright internationally, the Berne Convention and the Universal Copyright Convention.

The Berne Convention is an international agreement governing copyright, first accepted in Berne, Switzerland in 1886. The Berne Convention requires that its signatory countries recognize the copyrighted of works of authors from other signatory countries in the same way as it recognizes copyright protection of its own citizens. The Berne Convention established a system of international copyright protection and also caused many countries to raise their standard for copyright protection. Under the Berne Convention, copyright protection must be automatic upon the creation of a qualifying work and it is prohibited to require formal registration for protection. Protection under this agreement applies to nationals and residents of signatory countries, as well as to works first published or simultaneously published in a signatory country. Further, it applies to a cinematic work created by a person having their headquarters in or a habitual residence in a signatory country. There’s more!

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LETTERS OF THE LAW: Life Rights and How to Protect Your Ideas

by James Napper, III on August 7, 2014

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In Letters of the Law, entertainment attorney James Napper, III discusses legal topics and answers questions submitted by Scene Magazine readers, both entertainment professionals and the general public. Submit your legal questions to lettersoflaw@scenelouisiana.com. To contact James Napper directly, email jnapper@napperlaw.com or visit www.napperlaw.com.

Q: I have a great idea for a reality TV show. There’s no script for a reality TV show or documentary, so how do I protect my idea if I can’t copyright it?

You are correct in that an idea by itself is not copyrightable or protectable, but there are a few procedures I would suggest that will afford you some protection of a truly unique concept.

First, I would suggest you write a treatment for the show. The treatment would then be protected under copyright law. As you may or may not know, copyright protection subsists from the moment of creation. This means that any work that meets the criteria of originality sufficient for copyright protection will be protected from the very moment that it is reduced to a tangible form. Writing a treatment of the potential reality show amounts to reducing that idea to a tangible form under copyright law. With that said, I would suggest that your treatment be very specific so as to protect your idea as opposed to something that is very generic and likely difficult to distinguish.

The other step I would suggest you take is maintaining the confidentiality of your material. In doing so, you must maintain the information in a confidential manner at all times. Require any person to whom you are disclosing the material to sign a non-disclosure and non-circumvent agreement. There’s more!

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LETTERS OF THE LAW: Music Licensing

by James Napper, III on August 4, 2014

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In Letters of the Law, entertainment attorney James Napper, III discusses legal topics and answers questions submitted by Scene Magazine readers, both entertainment professionals and the general public. Submit your legal questions to lettersoflaw@scenelouisiana.com. To contact James Napper directly, email jnapper@napperlaw.com or visit www.napperlaw.com.

Q: I am making an independent film and I would really like to use a certain well-known song that I believe ties into the plot very well. What would be the most cost-effective and legally sensible way to do this?

A: The simple answer is licensing. For those that are not familiar with licensing, a license is a legal mechanism for an intellectual property owner to grant authority for a specific use of their intellectual property. The license only represents a right for a specific use of the intellectual property and does not involve any transfer of ownership.

Something else to be aware of in this type of situation is that there exist two separate and distinct copyrights within a recorded song. One copyright exists for the underlying musical composition, or the music and lyrics of the song. This copyright is usually owned by a music publishing company and/or the songwriter. The other copyright exists for the recordation of the song, which is typically owned by the recording company.

Given that you would like to use a particular song for your film, that leaves you with two options. You can secure the appropriate licenses for a particular preexisting recording of the song. Or, you can hire another band to record a version of the song to be used within your film and secure the necessary licenses under this option. Now, it is appropriate to look into what are the requisite licenses under these options.
There’s more!

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Right of Publicity, Reversion Rights and Turnaround

by James Napper, III on July 16, 2014

Letters-of-the-Law-Header-webIn Letters of the Law, entertainment attorney James Napper, III discusses legal topics and answers questions submitted by Scene Magazine readers, both entertainment professionals and the general public. Submit your legal questions to lettersoflaw@scenelouisiana.com. To contact James Napper directly, email jnapper@napperlaw.com or visit www.napperlaw.com.

A well-known actress bought a shirt from my store and my employee took a picture of us! I’d love to use it in any way possible to help promote my business. What kind of restrictions are there? Can I use the photo on my website? Can I use it in an ad I’m running?
The short answer here is, no, you may not use the image in any commercial way. This presents an intellectual property issue known as the right of publicity. Stated simply, the right of publicity prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.

Without the express written authorization of the actress, the proposed uses of this candid photograph would be an unauthorized commercial use of this actress’s likeness, name and persona.

I am a young screenwriter and I have a production company seeking to option one of my screenplays. I was told by a colleague that I should ask for reversion rights or a turnaround provision. What are these?
First, let’s discuss reversion rights. When a producer is optioning a property, they do not acquire the actual rights in that property until they exercise the option, meaning they exercised their exclusive right to purchase that property outright in the designated period of time wherein they had an exclusive option to purchase the property. The most common form of reversion rights found in an option agreement simply requires that if the producer does not exercise the option within that period of time covered by the option agreement, the option rights held by the producer will terminate and all rights revert to the writer.

Additionally, many writers will request reversion rights even after the option has been exercised and the property purchased by a producer. For example, some may request that if the property is not produced within three years of the exercise of the option, the rights revert to the author. At this stage is where you might see a turnaround provision.

If the producer has exercised the option and paid the purchase price, they have then acquired all rights in and to the property that were granted in the option agreement. They now own those rights wholly. For this reason, many producers are willing to agree to a reversion should the property not be produced within a specified timeframe, provided that they are paid the purchase price plus any verifiable out-of-pocket expenses for development of the property.

This is usually accomplished in one of two ways. Firstly, the rights revert back to the author upon the expiration of the designated time period, subject to a lien for the purchase price and development expenses. Or secondly, a turnaround provision that grants the author a turnaround right, which is a right for a designated period of time in which the author can exercise the right and pay the purchase price and any development expenses as agreed to in the option agreement, and the rights will then revert.

I hope this has provided some clarification to you on what reversion rights and turnaround provisions are and the purposes they serve in an option agreement. It would behoove any screenwriter trying to sell or option any of their properties to seek the counsel and guidance of an experienced entertainment attorney as these are very specific areas of the law and protection is essential.


About James Napper, III
A Louisiana-based attorney who specializes in intellectual property and entertainment law, James Napper, III, J.D., LL.M. is a graduate of the The George Washington University Law School in Washington, D.C., where he studied intellectual property law. He is a recipient of the Stephen T. Victory Memorial Award for “Who Dat: The NFL, New Orleans, and the Implications of LSU v. Smack Apparel,” and the author of “Life as Art: How Technology and the Infusion of Music Into Daily Life Spurred the Sound Recordings Act of 1971,” which was selected for inclusion in the 2010 Entertainment, Publishing and Arts Legal Handbook.

Disclaimer: The information contained herein is intended to provide general information and does not constitute legal advice. The content is not guaranteed to be correct, complete, or up-to-date. This information is not intended to create an attorney-client relationship between you and James Napper, Scene Magazine, or any associated companies, and you should not act or rely on any information in this publication without seeking the advice of an attorney. In reading this article, please note that the information provided is not a substitute for consulting with an experienced attorney and receiving counsel based on the facts and circumstances of a particular transaction. Many of the legal principles mentioned are subject to exceptions and qualifications, which may not be noted. Furthermore, case law and statutes are subject to revision and may not apply in every state. Because of the quick pace of technological change, some of the information in these articles may be outdated by the time you read it.

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