New York Law School

Infringe That!

Veronica Mars Kickstarter Creates New Era of Movie Financing

In 2004, then UPN, then followed by the CW, television network premiered the American television show Veronica Mars, starring actress Kristen Bell as a high school student whose extra-curricular activities includes solving cases as a private investigator. The critically acclaimed series ran for three seasons and had a substantial following during its run. However, when executive producer Rob Thomas presented his script to Warner Bros. for a feature film, the company turned it down. Thomas then took his idea to Kickstarter and through that fundraising campaign raised the $2 million goal in less then ten hours.

Kickstarter, considered one of the world’s largest crowd funding sites, is a company that allows creative artists to raise money for their projects by offering various awards for donations to fund the project. Contributors to Kickstarter’s projects donate what they want and based on the amount of the donation, receive a “reward” for that contribution. In the case of Veronica Mars, rewards included an emailed copy of the script for $10 contributions, a download of the movie, t-shirt and script for $35 all the way up to a small walk-on role for $10,000. Although the studios and even Kickstarter say this form of financing projects is a revolutionary change to how films will be made, others aren’t so quick to support the campaign.

Critics of the campaign argue that this kind of fundraising is merely charity for big name studios and actors like Warner Bros. and Zach Braff to benefit from this financing yet get to walk away with the profits once the project blossoms into fruition. The success of the Veronica Mars Kickstarter makes people wander why should a studio risk its own money when thousands of fans could do it for them?

Typically when someone invests in a film project they eventually get to see some of their investment return in the form of profit. With Kickstarter, however, the over 91,000 investors make it so the studio gets the money it wants but doesn’t have to pay back any of the profits if the film proves successful because the backers of the project are not entitled to any bite of any profits.

Thomas and other backers, however, say that the rewards contributors get are worth the contributions. They claim that the rewards provide fans of these projects to experience the process in a way they may not have done before. In addition, the fact that so many people are backing the projects in the form of their contributions means that the studio must make the film. As noted on Kickstarter’s website, project creators must agree to “fulfill rewards or refund backers if a project is not fulfilled and could result in damage to your reputation or even legal action on behalf of the backers.” In other words, both the creators of these projects get to see their ideas come to life and creators are entitled to ensure fans get to see the film they obviously want.

The success of this fundraising effort has even inspired other big names like Melissa Joan Hart and Zach Braff to begin their own Kickstarter campaigns for their respective projects. This leaves the question of whether Kickstarter campaigns that help fund big studio projects is just a form of a handout in which the studio’s profit more from had they funded the projects on their own or is this the beginning of a new era to bring fans closer to the film-making process? I guess only time and the aftermath of the debut of Veronica Mars in early 2014 will tell.

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It’s undeniable that social media has tremendously changed our society over the last decade. We are connected to each other more than ever before, even if it’s just through Wi-Fi. It’s easier to stay in touch with old classmates who have moved away, former colleagues who we have worked with, and even with our favorite celebrities. Facebook, LinkedIn, and Twitter have all been the gateways for that. Instagram is another medium that allows Smartphone users to share pictures instantly. The users may upload their own original pictures, pictures that have been shared by other users, or pictures that were obtained from the Internet. The pictures may be reposted without the notification to the original owner. The concern is that the content posted by the users may be copyrighted and therefore infringe on the original owner’s right to reproduction and the right to create a derivative work.

Instagram does not claim ownership to any pictures posted, instead obtains a sub-license to use the content posted. When the user agrees to the Terms of Use upon creating an account, the user warrants that he or she has the right to share the content. The problem is that even if the Terms of Use are enforceable, it does not stop the user from posting unlicensed content. With the accessibility that Smartphone’s allow, it is easy to screenshot and repost a photo within seconds. The pictures may be uploaded from the user’s stored database and a filter may be added that enhances the photo. Even though the photo may be altered, it does not necessarily mean that it is so transformative that it may fall under the fair use defense.  Even though there are these implications, the increased exposure may outweigh the need to bring about copyright infringement claims.

Instagram’s feature that allows to “tag” posts with hashtags allows any other user to find all pictures that have been tagged with the same word or phrase (so long as that user’s account is public). Essentially, any one can search for a picture of a person, a brand, or a city. It opens the level of exposure to be available to many more people than before and people can view posts that they otherwise would have not before. This is great for marketing purposes because even though if someone is reposting another’s post, it is expanded to a larger group of people. Of course, there are still privacy concerns, but the assumption is that if a person’s account is public, they are posting content that they have deemed acceptable for the general public to see.

The content that is reposted can be anything from a picture of the sunset to a collection of nail polish. Instagram is a great forum to share new ideas and trends so a new clothing line, or even an established coffee shop like Starbucks, may actually benefit from the constant stream of new photos and reposts. It becomes something that the individual sees not only on traditional advertising medium, but also as part of the news feed on their phones. It is more likely than not that the increased exposure will lead to an increase in the market. So even though there are infringement concerns, the level of exposure and awareness that this “infringement” provides may outweigh those concerns all together.

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Life on the Demand

The way people watch TV has changed; people no longer want to wait for a new episode week by week. Binge-watching, also referred to as binge-viewing, has become much more appealing to people with limited available time to watch TV. Nowadays, with longer work days, not everyone can dedicate every Thursday night to watch a new “Park and Recreations” episode. Even though most of the networks offer on-demand streaming, it is not as appealing as Netflix because of constant commercials breaks. In addition, Netflix’s mission to provide quality original content will attract more subscribers, especially at such a time where costs of movie theater tickets are very high. If Netflix chooses to offer original movies, they would be guaranteed popularity with an increase in subscriptions.
It is clear that Netflix is on its winning streak; its benefits are clear to the subscribers: easy access, affordability, award-winning content and etc. Aside from winning their subscribers, Netflix executives are making deals across the country. One of the biggest deals that Netflix made recently is with The Weinstein Company, which gave Netflix exclusive first-run licensing to all Weinstein and Dimension Films releases starting in 2016. The Weinstein followed TWC deal with Netflix, which is a similar deal but only dealing with foreign films and documentaries.
Most recently, Netflix has their eyes set on the Oscar race. It’s been reported that Netflix are negotiating to acquire exclusive rights to Jehane Noujaim’s documentary about Egyptian unrest “The Square.” This documentary would be released under the Netflix banner in a manner of its original TV-style series, such as “House of Cards” and “Orange Is The New Black.” It might be be safe to say that in a year or two, Netflix would establish itself as a power in original content to rival established entities.
Right now, Neflix is competing with Hulu but Netflix’s model proved to be successful, in that it inspired new providers. Netflix’s biggest competition in the near future is Amazon Prime, which is outgrowing Netflix every day. Even though it is not that big of a competition at this moment, Amazon Prime has a potential to be a bigger threat to Netflix in a few years. Amazon Prime increased its Prime Instant Video selection this year and added exclusive content from CBS/Showtime, Sony Pictures, and tons of content from Viacom after Netflix’s mistake in not renewing their contracts. Amazon Prime even tried to break into producing its own original content. Alpha House, which is a show that follows four senators living together in a rented house in Washington D.C., is popular with the subscribers. However, the show did not receive any nominations this year at any major awards shows. It is going to take a couple of years for Amazon Prime to develop more critically acclaimed shows, while Netflix already has popular series that are entering their second season.
Overall, Netflix is going to grow further next year, but there are certain obstacles it will face. One of the most severe obstacles is that it is losing its content. Netflix already lost Viacom shows, which were picked up by Amazon Prime, and will continue to lose more in the next year when their contracts are expired. Amazon Prime, is most likely going to pick up all of Netflix’s losses, which will put Amazon Prime in a stronger position. However, if Netflix invests more in the original programming, then its subscribers are more likely going to stay with it for the benefit of watching their original shows.

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Copyright in Tattoos, Artist vs. Canvas

You want to get a tattoo. Normally, you spend time choosing the perfect design and placement. Then you spend hours reading reviews on Google to find the perfect (read: cleanest) tattoo shop in your area and make an appointment. You arrive for the appointment and after agreeing on a design you are handed a sheet of paper that looks very official and includes a lot of words you don’t understand. However, the excitement from getting a tattoo means you sign anyway and nervously get in the chair. Up until recently, the release you signed would include the basic things about acknowledging the risk of getting a tattoo, agreeing not to hold the tattoo shop liable for any complications associated with the tattoo, and certifying you are not drunk while getting this tattoo. In the future though, the releases could include a provision that states that the artist retains all copyright interests in the design of the tattoo. This change will likely be brought about by the changes that are happening at the moment in the realm of copyright law and how it applies to tattoos.

Up until the early 2000’s no one considered tattoos a form of copyrightable material. Then in 2005 a Portland, Oregon tattoo artist sued Detroit Pistons forward Rasheed Wallace claiming he owned the copyright interest in the tattoo design and sought to stop a Nike ad featuring the tattoo from being disseminated over the internet. He also sought damages. The case settled out of court, but sparked a new kind of copyright infringement suit. More recently, the tattoo artist who created the distinctive face tattoo for Mike Tyson sued the creators of The Hangover 2 for infringing his copyrighted material when they gave Ed Helms a similar tattoo in the movie. The artist, S. Victor Whitmill sought to prevent the movie from being released and argued that the movie producers failed to get his consent to use his tattoo design on someone besides Mike Tyson in the movie. The case settled before trial, but the judge’s comments were ground-breaking. The judge stated in her comments,

“Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that. They are not copyrighting Mr. Tyson’s face, or restricting Mr. Tyson’s use of his own face, as the defendant argues, or saying that someone who has a tattoo can’t remove the tattoo or change it, but the tattoo itself and the design itself can be copyrighted, and I think it’s entirely consistent with the copyright law.”

Her comments are the first time that a judge has opined on the copyrightability of tattoos and according to her they are entirely within the realm of copyright law. The ramifications from this are vast and potentially open up a vast number of celebrities to law suits from tattoo artists who want to benefit from the fame of the celebrity.

Most recently, tattoo artist, Christopher Escobedo, sued THQ, the creator of the video game, UFC Undisputed for copyright infringement when they included a detailed representation of fighter Carlos Condit (and his tattoos) in their game. Escobedo stated, “It’s an exact replica of my art,” says Escobedo. “That’s like a $5,000 tattoo that I got no recognition for.” This case is still up in the air, after Escobedo refused a settlement offer of $22,500 and if the case moves forward this could be the first time a court has actually had the chance to rule on a tattoo copyright infringement case. This ruling if it comes will pave the way for definitive changes in how a celebrity and even normal people go about getting a tattoo.

The National Football League Player’s Association (NFLPA) has already taken preemptive steps to prevent themselves from being held liable in future tattoo claims. They have asked players getting tattoos to get a waiver from their artist that they will not hold the NFLPA liable for any infringement. They have also suggested that players that already have tattoos try and get a waiver from their artist. This could very easily translate into the tattoo artists taking preemptive steps of their own to secure their copyright interests. Since it seems that a judge would likely rule that a tattoo design is copyrightable, it would only make sense for the artists to start including a provision in the release that states they retain an interest in the copyright. This won’t be a problem for us run of the mill citizens who don’t have million dollar endorsement deals, but for celebrities this could prove problematic. It would seem that the celebrity could either pay more money up front for the right to exploit the tattoo or they could show up to a tattoo session with their own waiver saying that either the artist transfers the copyright interest to the canvas or that the artist agrees to not unreasonably withhold consent to any future use of the tattoo in a video game, ad campaign, magazine cover etc.

It will be interesting to see if the Escobedo or any future cases actually get before a judge, but either way a new precedent has been set by the tattoo artists who have chosen to stick up for their copyrighted material.

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When Reality TV Gets Real: How Bravo May Play a Role at Teresa Guidice’s Trial



Reality television, though nearly nonexistent at the start of the 21st century, is now an American phenomenon. In the year 2010, 320 reality shows graced our television screens, with thousands of every day people plummeting into the world of stardom. Whether it is through competition shows, such as Survivor, or makeover programs like What Not to Wear, it seems many of us have left the realm of fiction and entered the world of reality when we turn on our TV screens each night.

At the top of our obsessions are “docudramas,” documentary-style programs that follow a group of people through their every day lives. Bravo TV, a member of the NBCUniversal network, is home to many docudramas with large, cult followings. Though the channel originally launched in December 1980 as “the first television service dedicated to film and the performing arts,” it is now home to a plethora of reality programming, with the Real Housewives franchise leading the pack.

Originating in Orange County, the Real Housewives shows follow women in the major United Stated cities as they go about their lives. Though not necessarily married nor homemakers, the Housewives are better described as wealthy drama queens. With big hair, fancy mansions, and designer clothes, the ladies of the Real Housewives capture audiences with ease. In the Real Housewives of New Jersey, for instance, viewers meet family-oriented Teresa Giudice. Teresa is a mother to four girls, and is known for spoiling her children (and herself) with a lavish lifestyle. At first, it seemed like Teresa had it all, but in June 2010, she and husband Joe filed for bankruptcy. Unfortunately, that was just the start of the couple’s legal troubles.

While the Real Housewives of New Jersey continued as planned for the next few seasons, the Giudices were charged with a 39-count indictment this past summer. Amongst the charges are conspiracy to commit mail and wire fraud, bank fraud, making false statements on loan applications, and bankruptcy fraud. As scary as Teresa and her husband must feel, Bravo TV is also on the chopping block. In fact, producers and cameramen for the show may be asked to testify at trial, and turn over any film they have of the Giudices that was edited out of the televised episodes.

Unlike news agencies that would receive First Amendment protection in a legal battle like this one, Bravo is an entertainment network, and cannot safeguard against the information it may have in the Giudice case. Yet where does the law draw the line between entertainment and reality? While the Real Housewives may not be newsworthy, the show is supposedly depicting the cast members’ real lives in an authentic way. It seems Bravo’s biggest loss in this matter might be admitting that its content is not as real as we would like to think.

Today, audiences understand that just some of what we see in reality shows is less than real (New York Housewives were recently caught faking scenes!), but networks like Bravo never falter when it comes to upholding the documentary aspect of their programs. It will be quite interesting to see how Teresa’s trial plays out, and if any Bravo employees will be asked to testify. With a court date set for February 2014, audiences will have to ponder the outcome of the trial, as well as what will happen to the beloved Real Housewives of New Jersey. Whether Bravo ends up confessing to knowing details of Teresa’s crimes or not, I think it’s safe to say that fans will continue to seek out the drama-filled Housewives we know and love for seasons to come.

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