Poor Woody Allen. It seems that over the years everyone has wanted a piece of him without his consent. Years ago, Allen won a lawsuit against a no-name video store who ran a print add with a Wood Allen look-alike. The man was staring sheepishly at the camera with that signature grin, hand on his chin, movies such as Annie Hall situated in front of him. Even though it wasn't actually Allen, the court ruled that the video store's ad was designed to trick the public into thinking Allen endorsed their business.
The most recent case revolving around Allen's rights of publicity involves American Apparel, a cutting-edge clothing company based in LA. In one of their billboard ads, they took a shot from Annie Hall, in which Allen was dressed up as a Hasidic Jew, without Allen's permission. The case was settled today for a cool $5 mil - dangerously close to it's court date (tomorrow), in which Allen was going for $10 MIL. There's a WSJ article about the situation here.
Publicity cases always present interesting issues for both the public and for attorneys. For example, one must be famous "enough" to invoke the rights, because you have to prove that the alleged infringer was making money off of using your image. Unfortunately, the law doesn't believe regular Joes like you and I can actually motivate consumers to buy. I'm sure this concept of publicity rights is confusing to the public, as it is confusing to PR firms, marketing firms, and lawyers alike. When can I use an image without asking?
The broad answer to this questions is: NEVER. If you're a photographer, you always get your models to sign a release. If you, consumer or business, want to use the photo, you need to clear it with the copyright owner - in this case, the photographer. However, if the photographer didn't get consent from the model, you're working with a whole new ball of wax (especially if the person is famous "enough" to invoke publicity rights).
The situation with Allen is also unique as it may have been dependent on his contract with the production company that made Annie Hall. Now, since it was his movie, there may not have been a contract involved at all. And even if there was, most production studios only get the rights to use their actors' likenesses in connection with the promotion of the film. Since American Apparel wasn't promoting the movie, it's outside of that realm and squarely within Allen's personal publicity rights.
It's definitely a nuanced area of entertainment law, but one that should not be taken lightly. It's fairly easy to seek licensing rights if you have an attorney on your side that is familiar with the process and negotiations. Believe me, the upfront cost pales in comparison to the back end cost of litigation (not including your company's name being dragged through the mud, etc).
Wednesday, May 20, 2009
Monday, May 4, 2009
Wolverine's "Unknowable" Opening: A Response
So the figures from "Wolverine" - a cool $87 mil for opening weekend. No bad, eh? Especially considering it was raked by a many a critic. Of course, given that the film had been leaked on pirate networks over a month ago, speculation is abound about how much "Wolverine" would (or should?) have made if not for internet piracy. THR (www.thehollywoodreporter.com) wrote an interesting article on the subject (see above link), but I feel a response is warranted.
I think the main point to take away from all this is the "Wolverine" still made more than enough money to line everyone's pockets comfortably (and by this I mean folks that actually make a crap-ton of money already from film releases... not the crew and other non-royalty bearing and non-box office receipt payment types..). Additionally, I'm honestly of the view that internet piracy really doesn't substantially impact the bottom line on most blockbuster movies. The folks that are downloading the film are doing so knowing that they're getting a different experience - no one that cares is fooled into thinking that can "replicate" the movie-going experience. And if they don't care, you can't harness that money. It is lost, because if they don't care about the substantial differences between seeing a crappy, unfinished version of a movie on a 14" screen and seeing a polishing, 5.1 Dolby surround sound version on a giant movie screen (not to mention the atmosphere opening weekend brings), you're not going to convince them to spend a dime on your film. They probably would have rented it, anyway.
Now, there are certainly those in the margins that would have gone to see the film and instead opted for the instant and free gratification of downloading it - but I truly believe those margins are slim. As a commenter stated on THR's post, most downloaders either don't care about the move experience (see above), or use the crappy downloaded version as a "test drive" to see if they want to pay money for the real thing.
I understand that the film industry wants to control the user experience, at least until the movie is released. However, the film industry, like the music industry, needs to understand this is a losing fight! Pirates aren't afraid of laws and regulations; there are so many of them that everyone is willing to take the chance they won't be the unlucky individual that gets caught. And you know what? They're right! Instead, the entertainment industry needs to harness the power of the people still willing to spend money on entertainment and who CARE about the differences between a download and a movie theater experience, just like those who care about the sound quality of a CD verses a compressed download. Yes, there will certainly come a time when the experiences are MUCH closer, if not identical, to one another. But that time is not now. By focusing on the benefits of spending a little money, entertainment industries can keep decent-sized crowds coming back for the "legit" experience. The figures may not be where they were before, but people are still willing to pay for entertainment. This is why people still pay to go to concerts! Yes, bootlegs abound. But do they come with the feeling of community, of belonging, of sheer joy and adrenaline that comes with the concert-going experience? NO. How do you think IMAX differentiates itself? It's a better experience. That's what people pay for - focus on them, and the industry will remain profitable.
I think the main point to take away from all this is the "Wolverine" still made more than enough money to line everyone's pockets comfortably (and by this I mean folks that actually make a crap-ton of money already from film releases... not the crew and other non-royalty bearing and non-box office receipt payment types..). Additionally, I'm honestly of the view that internet piracy really doesn't substantially impact the bottom line on most blockbuster movies. The folks that are downloading the film are doing so knowing that they're getting a different experience - no one that cares is fooled into thinking that can "replicate" the movie-going experience. And if they don't care, you can't harness that money. It is lost, because if they don't care about the substantial differences between seeing a crappy, unfinished version of a movie on a 14" screen and seeing a polishing, 5.1 Dolby surround sound version on a giant movie screen (not to mention the atmosphere opening weekend brings), you're not going to convince them to spend a dime on your film. They probably would have rented it, anyway.
Now, there are certainly those in the margins that would have gone to see the film and instead opted for the instant and free gratification of downloading it - but I truly believe those margins are slim. As a commenter stated on THR's post, most downloaders either don't care about the move experience (see above), or use the crappy downloaded version as a "test drive" to see if they want to pay money for the real thing.
I understand that the film industry wants to control the user experience, at least until the movie is released. However, the film industry, like the music industry, needs to understand this is a losing fight! Pirates aren't afraid of laws and regulations; there are so many of them that everyone is willing to take the chance they won't be the unlucky individual that gets caught. And you know what? They're right! Instead, the entertainment industry needs to harness the power of the people still willing to spend money on entertainment and who CARE about the differences between a download and a movie theater experience, just like those who care about the sound quality of a CD verses a compressed download. Yes, there will certainly come a time when the experiences are MUCH closer, if not identical, to one another. But that time is not now. By focusing on the benefits of spending a little money, entertainment industries can keep decent-sized crowds coming back for the "legit" experience. The figures may not be where they were before, but people are still willing to pay for entertainment. This is why people still pay to go to concerts! Yes, bootlegs abound. But do they come with the feeling of community, of belonging, of sheer joy and adrenaline that comes with the concert-going experience? NO. How do you think IMAX differentiates itself? It's a better experience. That's what people pay for - focus on them, and the industry will remain profitable.
Monday, April 27, 2009
Disney Ready to Play Nice with Hulu
It appears Disney and Hulu are inching ever closer to inking a deal that would allow a lot of Disney-affiliated content (my impression is that most of it would be ABC content) to make its debut on the on streaming network. This article gives not only a nice little break down of what the deal might look like, but also a little insight on how Hulu functions (for those of you that are still unfamiliar with it).
While it would certainly be cool to start watching complicated series shows (like "Lost") for free, it seems you may still have to be really diligent in order to catch the content. This makes free streaming a content a bit moot because, if I was diligent about catching shows, I would watch them on TV (or at least DVR them so I could fast forward through the commercials). However, this brooches a much larger debate about the benefits of Hulu v. cable. I have friends that swear by Hulu because it saves them $100 a month in cable expenses. However, I'm very attached to my DVR and I have advertising... so there you go.
Additionally, it doesn't sound like the Disney/Hulu deal would include "Disney" content; at least, not initially. It woul be nice to see Disney release some of the content that they really only show on the Disney channel, including some of the family-friendly series and their animated movies. However, as the article I referenced above makes note of, Disney has content on its own pages (www.disneychannel.com) that requires its own substantive traffic to stay afloat. Hulu does do some movies, but it's not really their bread and butter. Bringing some older Disney films in would certainly help drive traffic, but, given Disney's tight grip on its movies (The Disney Vault is the one of the most clever marketing tools I've ever seen, and, as a Disney fan myself, is the bane of my existence), the part of a deal seems unlikely.
While it would certainly be cool to start watching complicated series shows (like "Lost") for free, it seems you may still have to be really diligent in order to catch the content. This makes free streaming a content a bit moot because, if I was diligent about catching shows, I would watch them on TV (or at least DVR them so I could fast forward through the commercials). However, this brooches a much larger debate about the benefits of Hulu v. cable. I have friends that swear by Hulu because it saves them $100 a month in cable expenses. However, I'm very attached to my DVR and I have advertising... so there you go.
Additionally, it doesn't sound like the Disney/Hulu deal would include "Disney" content; at least, not initially. It woul be nice to see Disney release some of the content that they really only show on the Disney channel, including some of the family-friendly series and their animated movies. However, as the article I referenced above makes note of, Disney has content on its own pages (www.disneychannel.com) that requires its own substantive traffic to stay afloat. Hulu does do some movies, but it's not really their bread and butter. Bringing some older Disney films in would certainly help drive traffic, but, given Disney's tight grip on its movies (The Disney Vault is the one of the most clever marketing tools I've ever seen, and, as a Disney fan myself, is the bane of my existence), the part of a deal seems unlikely.
Friday, April 24, 2009
The Future of Music.... is Free.
@victorgodot posted a great article on his site giving a short chronicle of an experiment done by guitarist Cory Smith. Apparently when Smith removed his free music from his own site, his iTunes downloads drop; when he put the music back up, the paid downloads went back up. Whaaaaa??
Although a simple experiment that could be a coincidence, advocates of the "music as a promotional tool" movement (which includes Smith) conclude that this demonstrates the fact that people ARE still willing to pay not only for the music itself but also for ancillary products that can't be pirated. In many different ways, this experiment has already been proven time and time again over the last few years - while recording industry execs have been crying over "lost sales," touring musicians are singing all the way to the bank. Music fans today will still pay for certain aspects of the music industry, including recorded music. Many people don't want to deal with the uncertainty of torrent networks, including the older demographic, and other music fans (that understand how the cash flow works in the industry) will still pay for music based on principle. Is this enough to account for the financial loss the recording industry has sustained over the last 10 years or so? Probably not. However, I think Smith is right in saying that folks in the industry simply have to accept that they're going to make less money than they used to. They're fighting a losing fight and only alienating their consumers in the process.
Even if recorded music is treated a promotional tool in the future, it hardly spells the demise of the overall industry. Concert ticket sales are doing wonderfully (not that Ticketmaster is helping that, but that's another story), and artists are becoming innovative with regard to how they're making money, including well-placed sponsorships, endorsements, etc. In the long run, I think this age will be viewed as a health"cleansing" of the industry; filtering out the folks that have lost sight as to why we do this thing - it's about the music before all else. We don't have to live in cardboard boxes to pursue that dream, but we may not do it in McMansions, either.
Although a simple experiment that could be a coincidence, advocates of the "music as a promotional tool" movement (which includes Smith) conclude that this demonstrates the fact that people ARE still willing to pay not only for the music itself but also for ancillary products that can't be pirated. In many different ways, this experiment has already been proven time and time again over the last few years - while recording industry execs have been crying over "lost sales," touring musicians are singing all the way to the bank. Music fans today will still pay for certain aspects of the music industry, including recorded music. Many people don't want to deal with the uncertainty of torrent networks, including the older demographic, and other music fans (that understand how the cash flow works in the industry) will still pay for music based on principle. Is this enough to account for the financial loss the recording industry has sustained over the last 10 years or so? Probably not. However, I think Smith is right in saying that folks in the industry simply have to accept that they're going to make less money than they used to. They're fighting a losing fight and only alienating their consumers in the process.
Even if recorded music is treated a promotional tool in the future, it hardly spells the demise of the overall industry. Concert ticket sales are doing wonderfully (not that Ticketmaster is helping that, but that's another story), and artists are becoming innovative with regard to how they're making money, including well-placed sponsorships, endorsements, etc. In the long run, I think this age will be viewed as a health"cleansing" of the industry; filtering out the folks that have lost sight as to why we do this thing - it's about the music before all else. We don't have to live in cardboard boxes to pursue that dream, but we may not do it in McMansions, either.
Wednesday, April 22, 2009
Music Licensing and TV-DVD Releases
Ah, yes - I love the Twitter (as the kids call it). It moves with such incredible speed that it's impossible not to get an interesting tid bit every hour or so. Today's interesting bit of info comes courtesy of @erikjheels, a fellow entertainment attorney in the Boston area, who posted a link to this posting on Rick Klau's weblog. As DVDs of television shows become more and more popular, studios are scrabbling to issue every show they've ever aired in an attempt to cash in on this bottomless pit of entertainment income. MTV is no exception, and, as the blog indicates, they are currently trying to release DVD versions of Beavis and Butthead (which I've never understood...) and The State (which I loved as a wee lass).
In what is possibly the biggest irony of all ironies, MTV is being held up and has been forced to edit these programs due to a lack of music licensing rights to distribute the songs in DVD format. Seriously?? MTV?? You are (or were) "music television," were you not? Where were your lawyers when these licenses are were written and why didn't they cover uses "now known or later developed"? I've actually gotten my hands on a synchronization license for MTV's "The Real World," which basically signed over every single right to the song short of an actual assignment, for the duration of the copyright. Why, oh WHY weren't DVD releases included in these licenses? Alright, I gotta reign it in - the fact of the matter is that they weren't, and now MTV is faced with a delimma.
So how to get around this? Well, the logical solution would be to come back to the table and renegotiate these licenses, or, at least, some of the most important ones such as Marvin Gaye's music which was used in some of the most famous sketches on The State. Information on the situation is scant, and it's difficult to discern whether Gaye's estate is holding out (i.e. financially, morally or otherwise) or whether MTV is being too cheap or onerous. Therefore, I don't think that anyone is really at liberty to BLAME the copyright holder. Whatever the situation, I can't imagine why in the WORLD MTV would think it would be a good idea to take the music out of the skits. Just get rid of the skits altogether or work out the license - it's just going to piss consumers off when they by a DVD with useless and/or unfinished content on it. I mean, it's MTV we're taking about here - not some 2-bit TV station. This is going to translate to lost sales that, I would argue, may exceed the cost of the license.
It's unfortunate that licensing issues are holding up the release of some of these shows, but I do wish the public would be a little bit more understanding with regard to copyright. These owners have a right to reap the benefits of their creative endeavors; and sometimes the amount of money that entails differs between the parties, and these things take time to work out. It doesn't make either party the "bad guy" - it's simply the way things are. If anything, this is a good lesson to lawyers, showing that we need to be more anticipatory with regard to the use of content in new formats.
By the way, my twitter tag is @sjamieson. Please feel free to follow! I try to focus on a mix of entertainment and legal issues, and a few tweets here and there about my personal interests (i.e. @zombietweets).
In what is possibly the biggest irony of all ironies, MTV is being held up and has been forced to edit these programs due to a lack of music licensing rights to distribute the songs in DVD format. Seriously?? MTV?? You are (or were) "music television," were you not? Where were your lawyers when these licenses are were written and why didn't they cover uses "now known or later developed"? I've actually gotten my hands on a synchronization license for MTV's "The Real World," which basically signed over every single right to the song short of an actual assignment, for the duration of the copyright. Why, oh WHY weren't DVD releases included in these licenses? Alright, I gotta reign it in - the fact of the matter is that they weren't, and now MTV is faced with a delimma.
So how to get around this? Well, the logical solution would be to come back to the table and renegotiate these licenses, or, at least, some of the most important ones such as Marvin Gaye's music which was used in some of the most famous sketches on The State. Information on the situation is scant, and it's difficult to discern whether Gaye's estate is holding out (i.e. financially, morally or otherwise) or whether MTV is being too cheap or onerous. Therefore, I don't think that anyone is really at liberty to BLAME the copyright holder. Whatever the situation, I can't imagine why in the WORLD MTV would think it would be a good idea to take the music out of the skits. Just get rid of the skits altogether or work out the license - it's just going to piss consumers off when they by a DVD with useless and/or unfinished content on it. I mean, it's MTV we're taking about here - not some 2-bit TV station. This is going to translate to lost sales that, I would argue, may exceed the cost of the license.
It's unfortunate that licensing issues are holding up the release of some of these shows, but I do wish the public would be a little bit more understanding with regard to copyright. These owners have a right to reap the benefits of their creative endeavors; and sometimes the amount of money that entails differs between the parties, and these things take time to work out. It doesn't make either party the "bad guy" - it's simply the way things are. If anything, this is a good lesson to lawyers, showing that we need to be more anticipatory with regard to the use of content in new formats.
By the way, my twitter tag is @sjamieson. Please feel free to follow! I try to focus on a mix of entertainment and legal issues, and a few tweets here and there about my personal interests (i.e. @zombietweets).
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