Substantially Similar--A Blog on IP Issues, Writing and Film

The Rights of Old Movie Stars

by John Aquino on 06/07/12

I was watching a 1952 movie called Dreamboat on Turner Classic Movies the other day and marveled at how the film anticipated but mispredicted actual litigation and raised issues that are still with us in that they involve protection for moving and visual images on the Internet.

In the movie, Clifton Webb plays Thorton Sayre, a college professor and former silent film actor, who finds himself a sensation when his silent films are shown on television with sound effects added. His co-star, Gloria Marlowe, played by Ginger Rogers, adores her revived fame, but Sayre sues to have the films taken off television, claiming they are an invasion of his privacy.

The attorney for the defense, played by Ray Collins, who would four years later play police Lt. Tragg on Perry Mason, argues, quite rightly, that Sayre allowed himself to be filmed and the movies were being shown on television for the same purpose for which they were made—entertainment.

Sayre has a television brought into the court and by flipping channels shows that television is full of commercials and other mindless pursuits. He also demonstrates that title cards have been introduced so that Miss Marlowe promotes the perfume of the television show’s sponsor. Sayre wins his case.

The movie is a not too subtle attack on television, which was then keeping viewers at home rather than at the movies. The defense attorney is right that invasion of privacy is not an appropriate cause of action. By showing that Miss Marlowe is being made to shill perfume, Sayre is really giving a case for a violation of the right of publicity—which had not been well articulated in 1952. The problem is, since she is the person being made to promote perfume, it is her right of publicity that is being violated, not his. And she is more than willing to promote anything to have her career revived.

Unfortunately, when television resurrected old movies to fill time, few of the stars of those movies were found to have any legal rights in the films or their images.

William Boyd, who played Hopalong Cassidy in a series of movies from 1935 to 1947, anticipated the rise of television and bought the television rights to the films in 1949, which he then licensed to television to his great financial reward, not only from the actual film to television transaction but from the merchandising of Hopalong Cassidy hats, guns, and rocking horses.

But most of the stars were unable to do that and, like Boyd, had been contract players. Somebody else owned the copyright to the movies and made all the money from the tv licensing transaction. To be sure, actors like Sayre and Marlowe, Boris Karloff, Charles Farrell, and others benefited from the additional exposure and got more work. But they didn’t benefit from either the licensing of the films to television or from the merchandising rights.

We are all mortal. And the issue of right of publicity stemming from movie roles blossomed into litigations once performers of the golden age of Hollywood began to die.

The son of the silent film star Lon Chaney, Lon Chaney Jr., was very vocal in 1961 when a syndicated television show called Fractured Flickers employed gifted voice actors to sub funny lines for silent films. In The Hunchback of Notre Dame, in which Chaney Senior played the hunchbacked bell-ringer Quasimodo, the voice actors described him as “Dinky Dunstan, Boy Cheerleader.” Chaney Jr. threatened suit, but he apparently never got that far. He found he had no copyright in the movie and no rights in his father’s image.

Other families did sue. After the deaths of Laurel and Hardy, their widows sued Hal Roach Studios to prevent the licensing of the images of their husbands for an animated television show about the due. The court in Price v. Hal Roach Studios, F. Supp. 836 (S.D. New York 1975), found that their husbands’ right in the commercial use of their voices and likenesses was a property right that was inheritable under the laws of New York.

Earlier, the Los Angeles Supreme Court had established the same principle in Lugosi v. Universal Studios, 172 U.S.P.Q. 1972) in a lawsuit by Bela Lugosi’s family to gain a share of the vast revenues from merchandising the studio had earned from use of Lugosi’s image as Count Dracula on lunch boxes and Halloween costumes. But the California Supreme Court reversed, Lugosi v. Universal Pictures, 24 Cal. 3d 813 (1979), concluding that the right was not inheritable.

One offshoot of all of this is that, when the litigation began, Bela Lugosi Jr. was in law school. He went onto to become a lawyer and built up a practice representing the heirs of movie personalities such as the Three Stooges, Boris Karloff, and Lon Chaney. He also, along with others, lobbied for a change in California state law, which was enacted as California Civil Code Section 990 in 1988 and which makes a person who uses the name, likeness, or voice of a deceased personality without permission to merchandise products liable for damages. Exceptions are given for plays, books, films, or radio.

Ironically, even though Laurel and Hardy’s widows won in New York court and Lugosi’s family lost in California court, by statute, the right of publicity is extended after death in California and in New York the right is not inheritable.

For the living, it was and is a matter who owns the copyright in the films, of the right of publicity statute in the particular state where the person depicted is domiciled, and, most importantly, the contracts for the performer’s work in the particular film, which specify the permitted uses.

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A Soldier's Medals: A Tribute to Robert Curren

by John Aquino on 05/29/12

I tried for a number of years to have this published in newspapers and magazines. With love, I publish it here.

Memorial Day has special meaning for all of us. It’s more than the start of summer; it’s the beginning of a national journey through summer and fall, a road through the calendar from Memorial Day through the Fourth to Veterans Day, remembering loved ones who served.

For our family, the day and the memory of a man have blended to become one.

He was born on May 30, the traditional celebration date of Memorial Day, shortly after the end of the First World War in Brooklyn, N.Y. and died the last day of summer 65 years later. The day of his birth predicted his patriotism, especially his service in World War Two, and also, since it is the traditional start of summer, that he would become what he truly was--a bright and sunny summer man. His leaving this life when summer left confirmed this too.

He was my wife Deborah's Dad, Robert Curren. An Irish tenor, a dancing man, a loving and giving man.

And then when he died, there was unusual talk of medals.

Shocked at his sudden death from a heart attack at the still youthful age of 65 in Silver Spring, Maryland where he and his wife Adelaide had moved to live with us, we phoned the Washington Post and found that the obituary writer was not too keen on providing more than a paid death notice. "As for an obit, well, you know, space is tight. Hey, wait," he said, suddenly inspired, "you say he was in the war. Was he wounded? Did he win any medals?"

He had received the European-African-Middle Eastern Service Medal with Bronze Arrowhead and the Good Conduct Medal, which he more than earned in risking his life for three years but which was not what the writer was looking for. Bob Curren was fortunately never wounded and, since he was a medical assistant, his heroism was in caring for those wounded while he was under fire. And yet, the answer should have been and is, "Yes, he won medals. Lots. The special kind."

He was so genuine. In keeping with his Memorial Day birthday, when World War Two broke out he tried to enlist but was rejected for service because he was too skinny. And so he gave himself a diet of milkshakes and bananas, built up his weight, and was accepted. He heard they needed medics. Even though, as his aunt remembered, he hated the sight of blood, he became a Tech 5 medical assistant and attended the wounded and dying from Africa to Anzio to Normandy + 3 to the Bridge at Remagen to the Battle of the Bulge. In other words, if you’ve ever seen a motion picture about the war in Europe, one of those soldiers was Bob Curren.

His war service came at a high price. His mother passed away while he was gone. (After he received the news, his friends wanted to take him out for a drink, but he declined, saying in a letter home, "Mother was my stimulant.") At war's end, he entered the concentration camps. He wrote to his father, “We visited Dachau. You can still smell the burning flesh. I did not care to go, but, as we have some new men now, they were inquisitive. I have seen enough.”

In Munich while waiting to be shipped home, he and his buddies had their portraits done. The painter's wife in studying Bob Curren's handsome but sad face said, "If all men looked like this, there would be no wars."

His letters home show a keen sense of poetry as he reflects on the beauty and hope that survives war.

Last night was so bright I could hardly sleep. One can think of the nicest things when seeing such beauty, and I know that when God gives us these things and when you stop to think about it, He surely will not let anything mar it all.

But like so many veterans, he almost never spoke about the war. I remember watching the 1969 movie The Bridge at Remagen on television with him—and he had been in the battle. After what was a horrific scene in which U.S. soldiers were pinned down on the bridge by an incredible sight and sound barrage of zinging and pinging rifle volleys, I asked, "Dad, is that the way it happened?" Dad Curren turned to me and said quietly, "Actually, there was a bit more shooting than that."

When he wasn’t in combat, he saw a great deal of a family in Winchester, England. Shortly before he died, he and Adelaide were on vacation in Europe and visited the family. He was greeted as if he were a returning son. The mother, 87 years old, said, “Oh, I never thought that I would see my Robert again!” The daughter remembered him cradling her on his knee after she had bumped her head and holding a metal knife against the bump to keep the swelling down. Afterwards, they wrote him with other memories. He had made quite an impression on them, as he did on all of us.

After the war, he returned to Long Island to his work as a metal lithographer, married Adelaide, the love of his life, fathered Deborah, and sometimes worked three jobs to put her through school. Deborah remembers playing with her mother in the high school yard while her Dad swept the floor of the gym. Deborah went on to earn her Ph.D. and become a university professor and Shakespeare scholar. Her father was so proud

"Did he win any medals?" The obituary writer for The Washington Post asked. When I gave the factual answer, the man lost interest and did not write an obituary.

Bob Curren risked his life every day for three years in service to his country, and when he came home he lived his life with a perpetual smile, twinkle in his eye, laughter, and a goodness and generosity that endeared him to all he met. Everyone remembers him singing and dancing. He was born to dance.

In my eulogy, I told the story about the obituary writer and quoted his question about the medals. "Where are Bob Curren's medals," I asked aloud. I then pointed to my heart and my head. That is where Bob Curren's medals are, I said.

After the service, as the family passed by those in attendance, many took their right hands and touched their foreheads and chests, saying that, yes, they knew where Bob Curren’s medals were.

On Memorial Day, we celebrate all who served their country, those who died in her defense, and those who continue to serve, those awarded gold stars, purple hearts, bronze medals, and the good, decent soldiers whose lives constitute the essential medal of honor--on the battlefield and in the lives they lived and those they enriched by their living. We celebrate all medals winners, of all types, for their courage and sacrifice.

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Permission Fees for Use of Copyrighted Material Can Be a Big Deal

by John Aquino on 05/24/12

The need to get permissions to use copyrighted material in a book or film can sink the project. I know. It happened to me.

I was thinking of my own experience when reading an article in The New York Times May 1, 2012 about the copyright licensing problems that have befallen a documentary about the group of studio musicians from the 1960s known as “The Wrecking Crew.”

They recorded many of the songs by the Beach Boys, the Mamas and the Papas, and Sonny and Cher and did so without official credit or fanfare. Most of these groups could play their own instruments, and they did in live concerts. But the demands of recording four songs a day with multiple takes was so demanding that professional studio musicians were often employed. Some of the members of “The Wrecking Crew,” like Glen Campbell, went onto to solo careers.

Until the documentary was made, mostly with his own money by Denny Tedesco, the son of one of the group, the behind-the-scenes story of this group was understandably unknown. Tedesco thought it is important to document the work of these individuals who created the wonderful sounds that formed an important part of the musical culture of the late twentieth century.

But Tedesco is having trouble getting permission from all of the copyright holders to play portions of the recorded songs in the film. None of “The Wrecking Crew” has any interest in any of the copyrights of the songs. And in Tedesco’s using enough of the songs for them to be recognized, the dollar amounts of the permission fees kept rising and rising. The movie was shown at a film festival in 2008, but it has not yet been released.

Tedesco says his budget for the film was $1.5 million. When he asked one record label for a quote on permission fees, he was told it would be $2.5 million! He has worked the fees down but as of this writing says he still has to raise over $100,000 to pay off all of the 132 music cues in the film.

Some have expressed amazement at Tedesco’s dilemma. The music labels should be grateful for the publicity and give permission for almost nothing in thanks for the work these musicians did on the songs, for which the music labels have made millions, people say. But music companies are suffering as recording sales have declined and they have come to rely on licensing fees to supplement their revenues. Besides, the producers who actually worked on the recordings with The Wrecking Crew are mostly long retired or dead. Sentiment does not have a long life span in the entertainment business.

The whole situation reminds me of my first full-length book manuscript. I was then editor of Music Educators Journal for the Music Educators National Conference. I wrote number of articles about Broadway musicals for the magazine, and I was contacted by an educational publisher about writing a book on musical theatre. It was to be for their music series, and they wanted lots and lots of musical examples.

This was in 1980, and it was the fulfillment of one of my dearest wishes. I labored on the book and produced a 300-page manuscript with over 100 music examples. I turned the manuscript in, and then the publisher casually mentioned, “You know, according to the contract, you are responsible for getting permission to use the music examples.”

I was young, and I just didn’t know this. The publisher never told me and acted as if it was not big deal. I went about writing letters and getting permissions.

But times were changing. The U.S. Copyright Law was revised in 1976. The environment was clearly one in which music publishers felt that they had been robbed for years by people using copyrighted material without permission under a vague concept of fair use and now they were going to get the moneys they deserved. One publisher actually told me this at a conference, although he actually said, "We're going to bleed these people!".

When I totaled all of the quotes for permission I received, the total was over $8,000. To paraphrase Dudley Moore in the movie Arthur, this was when $8,000 was a lot of money. For some of us, it still is. It was for the educational publisher, who had probably budgeted all of $12 for permission fees. The publisher didn't know the times were changing.

Some copyright holders were charging $50 a bar, some $100, and to show the melody line I was using at least four and sometimes eight barfs. I contacted the publisher and told them, and they were dumbstruck. Did you tell them we are an educational publisher?, they asked me. I had, and it didn’t matter. Book publishing is a commercial enterprise since books are sold, even if the use will be educational. The publisher made a few calls to see if they could get the fees down, and failed.

The publisher put the blame on me. Since I was responsible for the permission fees, and since I evidently couldn’t afford them, they were forced to cancel the book contract.

As an author, the husband of an author, and as an attorney, I always make sure the issue of fees for copyrighted material is dealt with in the contract.

(I have worked a lot with scholar/authors, and they are always surprised by this. "Why would someone charge me money to use a photograph of a manuscript that's 800 years old?" The answer is, "Because they own the photograph and therefore the copyright of the photograph and you don't. If you want to break in to the library and take your own photograph of the manuscipt, then you'll own the copyright of the photo. I'll drive you there, but I'll wait in the car.")

If a publisher wants lots of photos or music examples, then the publisher should provide a budget for the use of this material.

Too late for my book. I have used portions of it for other projects. I have contacted other publishers. But the cost of permissions to use this volume of copyrighted material is still a huge issue. And so the book sits in my files.

I hope Tedesco finds the money.

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Life Story Rights: Do You Need 'Em?

by John Aquino on 05/16/12

I am often asked about life rights, usually in connection with writing or filming a biography of an individual.

From a copyright perspective, you can only obtain copyright protection for a work of authorship. You cannot copyright an idea or a historical event. For example, say a historian, after years of going through old newspaper files, determines that there was a Civil War battle that no one had previously recorded. He publishes his book to great acclaim. He hires an agent to see if a producer wants to buy the rights to his book, but then he hears that Steven Spielberg has announced that he will film a story about the battle. The man e-mails Spielberg, “You SOB, you’re trying to steal my battle.”

The historian can, of course, sells the film rights to his book. But the battle is now part of history. If she could talk, history would say, “Thank you, sir, for bringing the battle to light again. But now that we’ve thanked you, get out of the way and get lost. It’s not your battle. It’s my battle.”

Similarly, to the extent that a person was in the public eye, it would be difficult to say he or she “owns” his or her life story. It too is part of history. Even if the actress Elizabeth Taylor had written her autobiography, her copyright for that book would not have prevented someone else from publishing an unauthorized biography. The First Amendment gives an unauthorized biographer that right. If Taylor felt that she had been injured by the unauthorized biography, she could sue for defamation or invasion of privacy.

In 1994, Elizabeth Taylor sued NBC television to stop it from making a movie of her life, claiming that the movie would violate her right of privacy. The court refused to grant her injunctive relief to stop the movie. She was free to sue for damages, if she could prove damages. The movie—Liz: The Elizabeth Taylor Story--was made and broadcast, without incident.

There is also a right of publicity—the right of a person to control and benefit from use of his or her name and likeness. But most state right of publicity statutes or the states’ case law exempt the use of a celebrity’s name or likeness in a novel, play, biography, or film.

To the extent that someone’s life is well documented, one could make a movie or write a biography without permission. NBC did. Kitty Kelley did in her biographies of Taylor, Frank Sinatra and the Royals. But if the subject of the film or book feels they have been damaged, they can try and sue. To win damages in court, the individual will have to prove damages, which is sometimes very difficult, and why many celebrities don’t sue. Still, if you’re the one who is sued, that means you have to go to court.

What acquiring the rights to someone’s life story does is give you, basically, a series of waivers and releases to prevent suits for libel, invasion of privacy, or violation of the right of publicity. There will be normally a provision that gives the person or entity that buys the rights the authority to embellish, fictionalize, dramatize and adapt the life story and a warranty from the individual not to sue for an invasion of his rights of publicity and privacy or libel.

The person who writes the authorized biography also has an edge over the unauthorized biography, and it’s not just the fact that he or she has life story rights. It’s the “authorized” label.

It isn’t just the individual who is the subject of a film or book who may be asked to sign a life story agreement but anyone who is portrayed in a movie based on a person’s life or some other historical incident.

So, do you need to get life story rights? It depends. If the person being portrayed is living, it is usually a good idea. Those who finance the project may require it. But in some circumstances, it may not be possible, and you will be put in an unauthorized biography position with all of the risks. It again involves a risk-benefit analysis that you will have to work out with your producer or publisher and the money people.

If you decide to pursue acquiring an individual’s life rights, hire an attorney to make sure that all of the various potential legal actions are adequately dealt with. But, and this is the most important thing of all, since you are asking the individual to sign a complicated legal document, walk them through it personally—in person or on the phone—so that they won’t get spooked. They’ll still want to talk to a lawyer on their own, but it’s the difference between an individual bringing in a lawyer, who will probably be working on a contingency arrangement and will earn more if you pay his client more, and his saying to the lawyer, “I think they’re trying to pull something over on me. Help me out!” and his saying, “I like these people. Just make sure this is ok.”

The individual will want assurances his or her story will be treated with respect and dignity, and you presumably will be able to give those. He or she may ask for script approval, which you will probably not be in a position to give. A usual alternative is an invitation to the set, a credit as technical advisor. The director and writer will not be bound to follow their input, and sometimes—as far as capturing the period of the story—the advice the individual gives can be valuable.

What if the person being portrayed is dead? Under the law of defamation, only the person whose reputation is injured can sue, not the family. Hence, the expression, The dead cannot sue for libel. The right of privacy likewise ends with the person’s life. In some states, the right of publicity can be inherited, but the exemptions for biographies, films, and plays still exist.

However, legal considerations are not the end of it. I was giving a course for the New York State Bar Association on the topic of fictionalization in fact-based films and someone asked if it was still a good idea to work with the family of the person portrayed, even though the person portrayed was dead and the family could not sue for libel. I said it was a good idea. A young man working for a large law firm stood up and told me that was crazy, that by doing that you could end up with brother-in-law who wants to be an associate producer.

I answered, “It’s sometimes a question of whether you want to get the film made with a brother-in-law as an associate producer or have family anger sink the film. And, believe it or not, not every brother-in-law wants to be an associate producer.”

Hollywood film history supports this. M-G-M lost a famous suit in British court concerning the movie Rasputin and the Empress in 1934, and shortly thereafter movies began to carry disclaimers saying, “The people and events depicted in this photoplay are fictitious and any resemblance between people living or dead is purely coincidental.” This made Hollywood litigation shy. A series of biographical films about Louis Pasteur and other 19^th century legends produced some negative reaction from descendants, and Hollywood reacted.

In the 1939 film Jesse James, Jo Frances James, Jesse James’ granddaughter, is given an opening screen credit as “Historical data assembled by,” even though the film is so fictionalized there’s a question about what she did, if anything. For The Story of Alexander Graham Bell, made the same year, Mrs. Gilbert Grosvenor, Bell’s daughter, had official script approval. Even more recent film biographies that have been more “warts and all” than these 1930s films, have found it best to work with the families, if they can.

Why? There’s the “authorized biography” label again, with the family giving approval. But there’s also potential hell to pay if they don’t approve or just feel neglected. Unlike in the 1930s when dismayed family members wrote letters of complaint, today they go to the Internet, create a website called thefilmaboutmyfatherisalie and go on cable television to denounce the film, even before filming starts. A film producer may send family members a shooting script to show that the film’s portrayal is faithful to the life, and an angry wife, daughter, or son will put it on their website with annotations of inaccuracy. They’ll even say, “Sure we’re violating your copyright. Sue us. We can use the publicity.”

Sometimes they can never be comforted, and you’ll have to go with the flow. But it seems to me it’s worth a try. Having family members read about a film in the newspapers seldom works out well.

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Who Owns the Copyright in an Interview?

by John Aquino on 05/11/12

I hadn’t really intended for the latest blogs/articles to be answers to the questions, who owns the copyright in this and who owns the copyright in that? But last night I was reading the (London) Times Literary Supplement (May 4, 2012), and the editors there in an opinion piece described this recent situation.

Nigel Rodenhurst, a graduate student at Anerystwyth University, conducted an interview with the author Paul Auster as part of his doctoral thesis. The interview went so well that Rodenhurst wanted to write an article on Auster, but the university told him he had to show it to Auster first. Rodenhurst typed it up in a Q&A format and submitted it to the journal College English, which also said it would like Auster’s “go ahead.” But when contacted, Auster withheld his consent.

TLS writes that Rodenhurst did not need Auster’s permission. Citing a precedent set by the Paris Review, TLD states that it is the interviewer who holds the copyright in an interview. The Paris Review interview with Auster in a book collection of interviews from that publication notes that it was reprinted with the permission of the interviewer, Michael Wood, not Auster.

Well, the situation may not be as simple as the TLS claims. The interviewer or the publication if it is a work for hire could claim ownership of the questions and the presentation, and the interviewee presumably is giving the interviewer and publication a license to use the words in the publication by consenting to the interview. But who owns the quoted material from the interviewee?

Legal precedent in the United States appears to be divided, with some cases suggesting that the interviewer holds the copyright (e.g. Taggart v. WMAQ, Channel 5, 57 U.S.P.Q.2d 1083 (S.D. Ill. 2000), and others indicating it is the interviewee (e.g. Suid v. Newsweek, 503 F. Supp. 146 (D.D.C. 1980)). Another case in District of Columbia federal district court--Quinto v. Legal Times, 506 F. Supp. 554 (D.D.C. 1981))--posits that both the interviewer and the interviewee have ownership interests in their separate contributions.

The 1984 Compendium II of the Copyright Office Practices appears to side with the idea of both the interviewer and the interviewee having ownership rights. It states, “A work consisting of an interview often contains copyrightable authorship by the person interviewed and the interviewer. Each has the right to claim copyright in his or her own expression in the absence of a valid agreement to the contrary. Where an application for such a work names only the interviewee or the interviewer as author and claimant, and where the nature of authorship is described as ‘entire text,’ it is unclear whether the claim actually extends to the entire work, or only to the text by the interviewee or the interviewer. In any case where the extent of the claim is not clear, the Copyright Office must communicate with the applicant for clarification.”

And so depending who your client is, you have precedent on your side.

When a case on the issue came to a Canadian court, it grappled with both the Canadian and the U.S. precedents. In Hagers v. ECW Press Ltd.,85 C.P.R. (3d) 289 (1998), Michael Holmes (a pseudonym for Dallas Williams) had written a biography of Shania Twain in which he had plundered existing interviews with Twain and ended up using a third of plaintiff Barbara Hager’s interview with the singer in Hagers’ book Honour Song: A Tribute. Holmes did not cite Hagers, and it could have been understood that he had interviewed Twain himself.

Hagers sued for copyright infringement, and Holmes in his defense relied on the 1997 Canadian decision in Tele-Direct Inc. v. American Business Information, 76 C.P.R. (3d) 296 (F.C.A. 1997), which had concluded that compilations of data must embody originality and creativity in order to be copyrighted. Holmes was basically arguing that Hagers could not claim to have a copyright in the quoted material because the quoted material did not originate with her but with Twain.

The Canadian court rejected Holmes argument, stating that Tele-Direct Inc. ruling was particular to its facts. But the issue of the originality of quoted material goes to the heart of the copyright law across nations, which is that to carry copyright protection a work must be original to the author claiming copyright.

In addition to different legal precedents, the interviewee may have provided some contractual limitations to the license to use the quoted material. And there are conceivably rights of publicity arguments an interviewee may offer in response to what he or she regards as misuse of the words that were spoken.

And so, it may be a logical assumption that the interviewer or the publication owns the copyright, but, depending on the circumstances, there could be arguments to the contrary.

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