The information which follows provides a general overview of the intellectual property rights involved in entertainment-related transactions. Also provided is an analysis of the legal rights affected in scenarios commonly encountered by media producers seeking to incorporate the works of others in new works. The information provided in this article is not exhaustive. SSPAR works closely with its entertainment clients to assess the risks and with each specific situation.

I. OVERVIEW: Copyright Law, Trademark Law, Trade Secret Law, Patent Law, Rights of Publicity, Rights of Privacy

• Copyright Law.

Copyright law is fundamental to the protection of literary, artistic, dramatic, musical, graphic arts, and other creations. Copyright does not protect ideas by themselves, but rather the expression of original ideas in some tangible medium such as a canvas, piece of marble, high definition digital video tape, 35mm film, etc. An additional discussion of copyright law with respect to using others’ works is found below.

• Trademark Law.

Trademarks are symbols or words that are used to designate the source of origin of a particular good or service. An additional discussion of trademark law with respect to using others’ marks is found below.

• Trade Secret Law.

A trade secret generally includes any information used in the course of trade or business which lends a competitive advantage and is not generally known within the trade or industry. In order to claim something as a trade secret, it must not be common public knowledge, it must have demonstrable value, and it must be protected and maintained as confidential by the owner.

• Patent Law.

In the context of the entertainment industry, patent law is generally used for protecting equipment innovations such camera, film, music, and television equipment and other innovations in merchandising. Entertainment companies often

obtain patents on the machines they create to display or perform entertainment products.

• Rights of Publicity and Privacy.

The right of privacy is a personal defensive right which protects an individual’s privacy against such acts as defamation, slander, and

libel. The right of privacy is essentially the right to be left alone. The right of publicity, however, is an exploitative right, resembling copyright and trademark, wherein an individual maintains the right to capitalize on the value of his or her name, image, and likeness. An additional discussion of publicity and privacy rights is found below.

II. Film and Television

The legal aspects of film and television often center on transactions ranging from screenplay

option agreements, finance agreements, chain of title clearance, talent agreements (script writers,

film directors, actors, composers and set designers), production and post production and trade

union issues, distribution issues, motion picture industry negotiations, and general intellectual

property issues relating to copyright and trademark acquisition or licensing.

A. Use of Copyrighted or Trademarked Material in New Media

Media producers regularly incorporate the works of others in a new work such as motion

pictures or television programs. These new audio/visual works may include images, music,

video, writings, sounds, and so forth that are owned or were created by another. Intellectual

property issues arise through the combinational nature, i.e., the incorporation of books, songs,

music, images, etc., into new works, and the collaborative nature, i.e., the contributions of

various members of a creative team.

In general, copyright owners have the exclusive right of reproduction, distribution,

performance, display and preparation of derivative works based on the original. Unless permitted

by one of the exceptions to the copyright owner's rights, the violation of any of these exclusive

rights constitutes copyright infringement. In order for a court to find that copyright infringement

has occurred, it is not necessary that the infringer engage in exact copying, but only that the

infringed work be substantially similar to a significant portion of the protected expression of the

copyrighted work.

The safest course for the media producer desiring to use another’s work is to obtain

permission from the owner. Another option is simply not to use the work. Beyond these two

approaches, certain legal safe harbors such as de minimus use, fair use, or nominative use may

permit use even when permission is not granted. The following sections briefly set forth some

aspects of copyright, trademark, and rights of publicity and privacy that address the propriety of

using another’s material in a new work.