Do You Need Permission to Make a Movie About Real People? Ask Mark Zuckerberg and Joe Francis.

Clients often ask me about obtaining "life rights" in connection with films based on real events.  Most clients are under the impression that they can't make a film about real people without getting permission.  Not true.

Here's a great example -- the upcoming film, Social Network.  This article in The Hollywood Reporter describes apparent negotiations between producer Scott Rudin and executives at Facebook in connection with some of the depictions in the film.  The article makes clear that the film is not precisely accurate in its depiction of the story, nor is it intended to be.  Further, the last paragraph of the article specifically describes that life rights of Mark Zuckerberg and other key players were not obtained, and why it was not necessary.

While Rudin might be making a few minor accommodations, the truth is that film makers (and other creators of media) have the right to tell stories based on real people.  And they can even bend the facts a bit so long as they do it carefully, and clearly disclose that certain events did not actually occur.

Joe Francis

Contrast this with the story about Joe Francis threatening to sue Jerry O'Connell and the makers of Piranha 3D for disclosing Francis as the basis for the unsavory character played by O'Connell in the film. Clearly, Joe has no legal right or ability to stop the film.  However, the implication that the character is based on Joe when there is no underlying factual basis for that connection may indeed cross the line into defamation.  (It's probably not a strong case, but it certainly warranted the letter from Joe's attorney, Larry Stein.)  Thus, Jerry was clearly instructed to be more careful in how he used Joe's name in interviews about the film.

The bottom line is that the First Amendment does provide a lot of protection for film makers and creators of other media.  However, if you aren't getting permission from the people in your story, then you need to really understand the limits of that freedom and what actions cross the line into a lawsuit for defamation.

Don't give up on making your film or writing your book just because you can't get permission.  Be bold, be creative -- but also be smart and get some advice if you want to stay out of court.

How China Will Change The Film Business

Reading this article in The Hollywood Reporter, I had a somewhat shocking realization.  As the market for film (and everything else) becomes truly global, there is no escaping the impact of other cultures on the content that is created in this country.

The article focuses on the Chinese government's resistance to creating a rating system for film.  The Chinese system is black and white -- either a film is appropriate for Chinese citizens or it is not going to be seen by anyone in China. Period.

Place this in the context of China having just surpassed Japan as the world's second largest economy, and China's #2 spot in revenues for the film, Avatar.  The implications are clear -- if you don't make a film that is going to pass muster with the Chinese government, then you are giving up your #2 market and a whole lot of potential revenue.

This may not matter to a lot of smaller films (although nobody wants to give up significant revenue potential), but on a more expensive film it can mean the difference between red ink and profits.  That means that studios and producers of larger pictures, whether they like it or not, need to look at a film through the eyes of Chinese censors.  They need to make a conscious decision whether they will forgo that market (and substantial revenue) in order to make controversial or edgy content.

So, while we have more freedom and choice than citizens of China, the views of the Chinese government are ultimately going to influence what we see and hear in our own country.  And as the Chinese market continues to grow, that influence will increase. Through the power of economics, their culture impacts our culture.

Interesting how that works, isn't it?

Reports Of The Death of 3D Are Premature

There was a very good article a few days ago in The Wrap about the downward trend in 3D box office revenues. (By the way, The Wrap is a favorite publication of mine on the entertainment business.  If you don't read it, you should.)  While the author (Daniel Frankel) gives fair coverage to the topic, I think the article misses the big picture.

An underlying assumption seems to be that tracking 3D statistics independent of all other factors is meaningful.  I'm not sure that's true.

While 3D versions of films currently command a higher ticket price, it is not a separate genre of entertainment.  3D is a production technique, just like Dolby or DTS sound, IMAX, or any number of past innovations like 70mm film or Panavision lenses.  3D is certainly a more dramatic departure than many innovations, but it isn't anything separate and apart from the underlying film.

Films attract audiences because of a combination of good stories, good acting, good editing, and all of the other factors that go into making a captivating entertainment experience.  Put a bad film in 3D, and it is still bad (if not worse because the shortcomings are literally jumping off the screen at you).

The assumption that audiences will go see anything just because it's in 3D has never been true.  The current numbers are bearing that out.  Bad 3D films are performing badly, and good 3D films are performing well.  This is not a surprise to anyone.

3D is another wonderful tool in the bag of filmmakers.  When it is used well on a good film, it will enhance the quality of the film and probably produce increased revenues.  When it is used poorly and/or the underlying film is not well-made, then the use of 3D just means they spent more money to make a bad movie.  It won't do anything to increase the audience for the picture.

So the overall decrease in 3D revenues results not from a fading of the attractiveness of the technology, but from the broader use of the technology across a wide spectrum of films -- many of them being pretty bad films.  That pulls down the average, but it has nothing to do with 3D.

California Girls: The Beach Boys, Katy Perry and Copyright Law

According to a number of news accounts (like this one at Billboard.com), Rondor Music (a division of Universal), the publisher of the hit Beach Boys song, California Girls, has sent a demand to Katy Perry in connection with her current hit, California Gurls. Rondor is seeking compensation for an alleged copyright infringement. The gist of the claim stems not from the obviously similar title (titles of songs are generally not subject to copyright protection), but a similar lyric.

The main lyric of the Beach Boys' tune is "I wish they all could be California girls." At the end of the Katy Perry song, guest rapper Snoop Dogg improvises the line, "I really wish you all could be California girls."  So, the question is whether this similar lyric legally entitles Rondor to compensation.

I could obviously write a whole article on the legal concepts underlying copyright infringement and how they apply in this case. However, this is an informational blog, not a legal journal, so let me make it short. The essential idea is whether the Snoop Dogg lyric creates enough of a legal similarity between the two works to trigger liability. (There might be other relevant factors, such as whether it was actually "copied" for legal purposes, but I think the similarity issue is the most pertinent.)

There are actually several different tests of similarity that courts have applied in these cases. Again without belaboring the issue, the most obvious fact is that this is one line out an entire song, and it's not even identical to the original line from the Beach Boys' song. On the other hand, it is the most prominent lyric from the original song.

Another consideration is that the idea behind a creation cannot be protected; only the expression of that idea. So, the question arises whether Snoop Dogg was only capturing the same idea, or actually copying the expression of the idea.  And you could even argue that Snoop Dogg's rap is a parody of the original Beach Boys line; that would undermine Rondor's argument, as well.

All of these are good and legally relevant questions.  Personally, I could make an argument for either side of the case.  With that said, my opinion is that this does not rise to the level of an infringement.  However, I don't think it will ever get to court.  At this point, Rondor has not even filed an action, and I don't think they ever will.  Some money is likely to change hands and the issue will quietly go away.  Too bad really -- it would have made a very interesting lawsuit.