In October of 2014, a judge rejected a lawsuit filed by writers Stephanie Counts and Shari Gold claiming copyright infringement of their work by Fox’s ‘New Girl’ television series.

In January of last year, the writers sued William Morris Endeavor (WME) Entertainment, Fox, Liz Meriwether (showrunner of New Girl) and executive producer Peter Chernin for allegedly basing the ‘New Girl’ series on the writers’ own proposals for a movie or television series which they said would have been titled Square One.  As defendants in the suit, Fox demanded a dismissal of the charges saying in court documents that “the only similarities between the works arise from general, non-protectable ideas.”  In October, U.S. District Judge Stephen Wilson rejected the lawsuit against Fox and the other defendants, saying the copyright infringement claims were ambiguous.

The judge ultimately dismissed the claim without prejudice, meaning the writers could bring the claim against the defendants again.  However, after the plaintiffs/writers had rejected a settlement offer of $10,000 allegedly extended by Fox and switched lawyers, the statute of limitations came into play, suggesting that perhaps they did not obtain an explicit tolling agreement in order to extend the time to file the claim.

Ultimately, on June 12 of this year Judge Wilson granted WME (William Morris Endeavor) Entertainment’s motion to dismiss the idea theft claim.  This time the judge dismissed the claim with prejudice, meaning the plaintiffs cannot file a lawsuit against the defendants again.  The Court found that Counts and Gold failed to allege any facts which would excuse the writers from timely filing of the claim.

As Los Angeles business attorneys specializing in entertainment law, we know these types of copyright infringement claims are made frequently in the entertainment industry.  Writers, designers, and other artists or “creatives” often feel that their ideas and works have effectively been stolen.  In some situations this is indeed the case, in others it may not be.  Do not allow the statute of limitations to dictate the outcome of your claim. For copyright infringement and other entertainment issues, trust the team at Spotora & Associates for unparalleled legal guidance and support.

Intellectual property is a complicated aspect of law, to be sure. It encompasses, among other things, copyrights and trademarks, and is intended to protect a variety of “creations of the brain.”

Copyright does not protect ideas, rather, but original literary and artistic works, musical pieces, discoveries, inventions, logos, designs, architectural creations, photographs and the like. The term “intellectual property” wasn’t used until the 1800s, though the foundation for the legal protection of intellectual property began centuries ago.

Section 106 of the 1976 Copyright Act generally gives the copyright holder the right to the reproduction of his or her work, to distribute copies or recordings for sale to the public, to perform or display the work publicly and to take other similar actions. The law also details “fair use,” which allows the use of copyrighted material for news reporting, criticism and other special cases.

Intellectual property also includes trademarks. Trademarks are protected by a sign or other indicator that can help distinguish one service-provider or goods manufacturer from another. The sign or indicator can include one or more of the following: a logo, a word or phrase and images. They are protected by the Trademark Act of 1946.

A trademark is essential because it serves to identify a particular business as the source of the service or goods. Registration of a trademark provides federal protection and a bundle of rights; however, use alone can establish common law rights. Those who infringe upon these rights can be subject to penalties.

Trademarks are registered in most countries and are also classified by the International (Nice) Classification of Goods and Services into 45 Trademark Classes. Numbers 1 to 34 concern goods, while numbers 35 to 45 concern services. For a trademark to be registered, it has to be original and cannot be deceptive or similar to trademarks that have already been registered.

Copyrights and trademarks are an essential part of many businesses. And in today’s world, when the rights of creators are being threatened by so many advances in technology, it is important to protect your creations.

If you are looking to file copyright or trademark papers, or believe that someone else has stolen your work or trademark, it is essential that you hire an experienced attorney.

To learn more, visit https://www.spotoralaw.com/

Your business has a great name, logo and slogan to stimulate brand recognition. Are those creations copyrightable?

One of the most common questions an intellectual lawyer gets asked relates to copyrighting a brand name, title or a logo. Is it possible to copyright those creations? The short answer is no, and in fact, brand names, short phrases, business names and slogans are explicitly excluded from protection; something that usually comes as a significant disappointment to businesses hoping to protect their identities.

The exclusion is actually quite wide and is applicable to any kind of a title, short ad expression, catch-phrase or name. Let’s say your forte was collecting and writing about recipes the great chefs of the world made famous. There are a lot of people who would copy those recipes and give them a whirl. Isn’t that a copyright violation? In the instance of labels, formulas, recipes and ingredient lists, the answer is they are not protected by copyright. However, the text with the directions, explanations and other descriptions may be eligible for copyright. Tread cautiously.

What about a person who wants to use a name in business/commerce? This is different. Business names, brand names and even slogans may be protected. Trademark law says those things are protected if and when they are used in commerce to make a product stand out from someone else’s. Just to throw a spanner into the works, trademark law also says you have exclusive rights to a trademark if you are the first user (under certain conditions). You would need to speak to an intellectual property lawyer about this to find out how it may apply to your circumstances.

In general, there is some trademark protection available automatically if you use your marks in commerce/business. But you still need to register a trademark federally in order to be covered nationwide.

Just to backtrack a bit, that bestselling cookbook about the world’s greatest chefs has recipes and formulas in it, and they aren’t protected by copyright or trademark law. If you want to protect them, you either have to consider that they are trade secrets, or patent them. To that end, you can only patent a recipe or formula if it is new and not just a combo of things already in existence. Drug makers pull that kind of stunt all the time by combining two existing drugs into one and calling it a new drug.

What about the recipe for Pepsi or Dr. Pepper? While these two drinks are recipes, their origin is a formula and is therefore a trade secret. That means they’re protected indefinitely just so long as no one exposes them. A patent would grant up to 20 years protection. If you don’t know if your product or other good may be copyrightable or qualify for a patent, ask an intellectual property attorney. Finding out now saves potential litigation grief later.

Anthony Spotora is a Los Angeles business attorney, intellectual property and entertainment lawyer.  To learn more, visit Spotoralaw.com.

The creative process that is so closely tied to the success of the entertainment industry often raises questions regarding ownership of creative works. While copyrights usually rest with the creator of a work, certain agreements can be made that transfer these rights to another party.

Generally, copyrights rest with the author or authors who originally create a work. However, the Copyright Act of 1976 contains a major exception, the “Work Made for Hire” Doctrine, which challenges the fundamental principle that copyright ownership lies with the individual who creates the work. In the case of a “Work Made for Hire,” the party for whom the work was completed is considered the author and thus holds the copyrights to the work created rather than the party who actually authored the work.

A Work Made for Hire is not, however, any work that you pay someone to create for you. In addition, it is not any work that you and a developer simply agree is a Work Made for Hire. Rather, “Work Made for Hire” is a specifically defined term in Copyright Law and applies only when certain conditions are met.

Disputes over what constitutes a “Work Made for Hire” often arise over two main issues: the distinction between an employee and a non-employee or independent contractor and whether or not the work in question qualifies as one or more of the nine categories outlined in the Copyright Act.

Section 101 of the Copyright Act defines a “work made for hire” as either:

1.  a work prepared by an employee within the scope of his or her employment; or

2.  a work by a freelancer (independent contractor) which is specially ordered or commissioned for use as a translation, as a part of a motion picture or other audiovisual work, as a contribution to a collective work, as an atlas, as a compilation, as an instructional text, as a test, as answer material for a test, or as a supplementary work such as a preface to a book, a forward or a musical arrangement, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

If the condition of category one is met, copyright ownership belongs to the employer unless an employment contract specifies that the creation of copyrightable material is not within the scope of employment. If the creation of the work falls outside the scope of employment then the employee, and not the employer, would have copyright ownership of the work.

If the conditions in category two are met, then the party hiring the freelancer would own the copyrights. If, however, these requirements are not strictly followed and the work falls outside the nine categories enumerated by the Copyright Act or a written agreement does not exist, then the freelancer would retain copyright ownership in the work.

Los Angeles intellectual property attorney, Anthony Spotora, commented, “It is the lack of a written instrument specifying the intended “Work-Made-for-Hire” relationship with independent contractors that commonly creates “Work-Made-for-Hire” copyright ownership issues. All too often, the intended owner seeks to argue that a “Work-Made-for-Hire” relationship was agreed upon, although it was stated only verbally. Subsequently, authorship of the work at issue ultimately winds up with its creator, rather that the intended owner. The second biggest misperception in freelance arrangements is that a written agreement specifying that a work is intended to be created on a “Work-Made-for-Hire” basis makes it so when, in fact, that is only the case if the work falls into one of the nine exceptions listed in Section 101 of the U.S. Copyright Act.”

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

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Music publishing is a complex process that requires extensive knowledge of proper business practices and copyright law. A music publisher can help songwriters reap the benefits of their creativity.

While publishing their own music is a viable option for artists, the legal issues involved can be messy and complex. In order to avoid dealing with these issues, many artists turn to music publishers for help. Music publishers perform a variety of different functions for songwriters, as they have the expertise required to manage licenses and collect royalties.

One of the most important functions of a music publisher is to help an artist collect royalties. Royalties fall into two main categories: mechanical royalties and public performance royalties. Mechanical royalties are those fees paid to the copyright owner, usually the songwriter and the publisher, for the right to reproduce the song on some type of recording. Under the U.S. Copyright Act, once a song has been commercially released, any other artist can record and release their own version of the song, provided that they pay the copyright owner the minimum statutory royalty rate for every single copy of their version that is pressed or distributed.  This rate increases periodically and is calculated differently for songs that are over five minutes in length.

Public performance royalties are collected when a song gets played in public at a concert, in a nightclub, on television or the radio, etc. The copyright owner of the work is entitled to payment for each performance of the song. However, in order to collect this money, the songwriter will need to register as a member of a performance rights society which will collect royalties from those playing the songwriter’s music.

Not only do music publishers handle the collection of royalties, they also help songwriters manage the licensing of their songs to record companies and other interested parties. There are two main types of licenses that generate income for songwriters: synchronization licenses and print licenses. Any time the performance of a song is accompanied by a visual, a synchronization license is required. These licenses are issued when a song is used in a movie, television show, video game, or other type of visual medium, and the fee varies based on the usage and importance of the song.

A final way of earning income is through print licenses. While sheet music is not as popular as it once was, many songs are still available in print form. A music publisher will issue print licenses and collect income from the sheet music company, and the songwriter will receive a small royalty derived from the sale of his or her song.

Navigating these four possible sources of income can be difficult for an artist to do alone, and the knowledge a music publisher possesses in these areas can be a great benefit to artists. Entertainment and intellectual property lawyer Anthony Spotora commented, “Whereas music publishing seems to exist somewhere in the shadows of the music industry, good music publishers can be worth their weight in gold to songwriters.  In fact, hidden behind many of the ‘majors’ commonly lies a publishing division which often generates more annual revenue than does its label cohort.  And yet, even those who have been cast deep into the music industry itself often do not fully realize the role that a music publisher can play in the life of a songwriter and, more importantly, in the life of his or her music.  A good music publisher satisfies 5 primary duties: exploitation, administration, collection, protection and acquisition.  When they do their job well, many songwriters can finally begin to appreciate what it means to receive ‘pennies from heaven.’ ”

Music publishers can be a great asset to artists, but it is important that songwriters know their rights before entering into an agreement.  As a full-services business law firm Spotora and Associates provides exceptional guidance to songwriters considering entering into a publishing agreement, and has specialized in advising entertainment artists of their legal rights in the areas of intellectual property and entertainment law for over 15 years.

For more information, contact us.