The Work For Hire Doctrine - A Primer For Freelancers

It strikes me that in the eight months I've been curating this blog, I've never actually explained the Work For Hire doctrine in any meaningful way.  I've only tiptoed around it, and that's just ridiculous when you consider the fact that artists generally aren't independently wealthy and need to work for a living.  Since most artists make their living by creating their work on someone else's dime, that means they're relying on the Work For Hire doctrine even when they don't realize it.

I bring this up because last Thursday I hosted an alumni-only webinar for my alma mater on important legal topics for artists and artrepreneuers and I made the Work For Hire doctrine a prominent part of that presentation.  Based on some questions I got during the lecture, I decided that now was the time to discuss Work For Hire and clear up some important misconceptions about it (especially as it pertains to freelancers) that seem to throw people for a loop.  So without further ado, here's my brief primer on Work For Hire.  Buckle up, it's about to get informative!

What Is Work For Hire?

The Work For Hire doctrine is a very specific legal principle that arises under U.S. Copyright Law.  The basic premise is that in certain situations, an employer will automatically own the copyright to work you do for them as a matter of right.  But the manner in which an employer can assert that right depends heavily on whether you're hired as an employee or an independent contractor (or freelancer, to use the non-legalese equivalent).

The Employee Work For Hire

If you're hired as an employee, the work you create for your employer doesn't belong to you, it automatically belongs to the employer.  No ifs ands or butts. In employment situations, the ownership over a copyright to a piece of art is no longer determined by the artist's handiwork; it's determined by the motive and desire of the employer.  How will you know if you're in an employment situation?  Look for the traditional trappings of employment, like salary, benefits, co-workers, office, boss, limited control over your work, etc.  If you find yourself in this situation, then unfortunately, the only way you can retain a copyright to work you've created for the employer is if the employer gives it to you in writing.

Here's an example of how that plays out: if a company hires you to design a logo and website for them, but you're paid a salary, you work out of their office, and your employment is indefinite (as opposed to job-specific), that probably means you're an employee.  You won't have any rights of ownership over the work except the right to display that work in a portfolio.

...But you and I both know that most artists don't work as employees; more often than not they work as freelancers.  And when you're hired as a freelancer, the rules change dramatically.

The Independent Contractor/ Freelancer Work For Hire

If you're hired as an independent contractor or freelancer (you should look for factors like greater control over the work, using your own equipment, working on your own time, short employment periods, etc.), the employer will own the copyright to your work as a matter of right ONLY if all of these requirements are met:

1. The work is custom-made/ commissioned

2. Both parties agree in writing that it's a Work For Hire

3. The work falls into one of these nine categories: (A) a contribution to a collective work, (B) a part of a motion picture or other audiovisual work, (C) a translation, (D) a supplementary work, (E) a compilation, (F) an instructional text, (G) a test, (H) answer material for a test, or (I) an atlas.

So if you're a freelancer, this means that you will own the copyright if any one of these three requirements isn't met!!  Let me repeat that because it's super important... your work must meet all of these requirements to be a Work For Hire; if just one of these requirements isn't met, it isn't a Work For Hire and the employer doesn't get the copyright.  One of the biggest misconceptions I see with freelancers is that they usually assume once they complete the work, they no longer have any ownership rights over that work and they walk away, not realizing that they still own the copyright.

Let's return to the website example.  You're hired to design a logo and website for a company, but you do the work on your own computer, on your own time, and you send the company invoices for your work.  The work is obviously custom-made and let's even say that you and the employer both agree in writing that it's a Work For Hire.  Well, it isn't, because unless the websites constitutes a collective work, web and logo design aren't any of the previously mentioned nine categories.  That means it's not a Work For Hire and you retain the copyright to your work.

On the other hand, if you were hired as a cinematographer on a film, then as long as you and the employer agreed in writing that it's a Work For Hire, then the copyright WOULD be taken by the employer, since films are one of the nine categories considered under copyright law. If you're a film producer and you're hiring above and below the line talent, it's a good practice to put in writing that the work these independent contractors do are Works For Hire because you don't want to get sued for copyright infringement.  Remember a few months ago that anti-Islam film that caused all those riots in the Middle East, "The Innocence of Muslims"?  Well one of the actresses, Cindy Lee Garcia, sued the film's producer Nakoula Basseley Nakoula for copyright infringement.  As it turns out, even though their employer/independent contractor relationship met most of the requirements (custom work, motion picture), there was never a written agreement between the two that it was a Work For Hire.  Unfortunately for Nakoula, he has bigger problems than a copyright infringement lawsuit (for example, the jihad against him by radical Muslims for his film's denigration of the Prophet).

Of course, even if your employer has no right to the copyright, you can always convey the copyright (through sale or gift) to the employer if you choose to; the employer only has a right to it in the circumstances I mentioned above.

A Bundle of Sticks

Let's say you're a freelancer and you retain the copyright to the work you did for someone, that doesn't mean you can do whatever you want with it.  After all, someone paid you for that work and they have an expectation that no one will try to profit off of it... even the artist.  It's a reasonable assumption.  When you do work for someone, you can't just treat it like it's yours, even if it is.  That's because ownership isn't the only right that accompanies a copyright.  There are several other rights (such as the right to display, the right to make copies, the right to make derivative works, among others) that go with a copyright as well.  We copyright attorneys refer to this as the "bundle of sticks" and ownership is only one.  When you're paid to do a work of art at someone's request, you end up giving up a lot of those rights, even if you retain ownership.  If you were to exploit the work as if you had complete dominion over it, you could actually end up facing a variety of copyright or trademark infringement issues over exploiting your own work, and that's a pickle you don't want to be in.

So now you may ask "Greg, what's the point of owning a copyright to the work if I can't exploit it?"  Well, chiefly it's because you may want to limit how the employer uses and profits off your work.  Since you both possess some of the rights to the work and neither of you possess all of the rights, both parties are limited in their abilities to exploit that work.

How To Move Forward

So you own the work you did for someone else but now you can't really do much with it, so what do you do?  Maybe it's better to set up some sort of licensing agreement with the employer that's renegotiable at specified intervals.  Maybe it's better to convey the copyright outright and then walk away from the work.  It really depends on the situation, the client, and the potential for profitability of the work you do (for example, if you design a logo for a company and the company becomes famous, the potential for financial exploitation is probably much greater than if you do a mural for a client's building).  As far as I'm concerned, one thing is absolutely clear: if you're a freelancer, you need to discuss what to do with that copyright in every contract you sign with a client/employer.  After all, there's no reason you both can't continue to profit off the work you were hired to do.

And if you're an employee... well just take solace in the fact that you have a job.

How American Copyright Law Made Kim Jong-un Look Like A Fool: A Beginner's Guide to the DMCA

So for the second time in 63 years, we're being pushed to the brink of war with North Korea.  Kim Jong-un, the young bellicose ruler, has been making provocative statements for past few weeks and has aimed his ballistic missiles at U.S. bases in South Korea and Guam.  To make matters worse, because of his youth and untried-ness on the world stage, he's been harder to read than his father and grandfather, making him much less predictable that either of his forebears.  I don't wish to downplay the peril of the situation and I think the Obama administration should be taking all appropriate steps to ensure the safety of the American people, as well as America's allies in Japan and South Korea.  That said, I find it hard to take their threats seriously when they can be made to look so foolish because of American copyright law.

Let me explain. Back in February, the North Korean military released a propaganda video on YouTube that quickly went viral.  The video, scored by a bizarre instrumental version of Michael Jackson's "We Are The World," showed footage of Korean missiles reducing New York City to a flaming husk of rubble.  Unfortunately for Mr. Kim, that footage was taken directly from Activision's hit video game, Call of Duty: Modern Warfare 3.  And since the North Korean military failed to get permission to use that footage, Activision issued a DMCA takedown notice to YouTube.  YouTube complied with the takedown notices and removed the video from their site.  Now when you Google that video, you'll see the image I've posted above.

So how did Activision rout the mighty DPRK?  Well, as I've discussed again and again on this blog, you can't just use someone's copyright without their permission, even if you're a rogue nuclear state who won't submit to U.N. treaties.  That's infringement.  And when you post someone else's copyright online, the DMCA (short for Digital Millennium Copyright Act), gives you the ability to bypass the infringing party and go straight to their Internet Service Provider (ISP).  One of the most common provisions of the DMCA - and the one that's applicable to most artists - is the takedown provision. It's basically a cease and desist letter to the infringer's ISP which states, in effect, that the infringer has used your copyright without permission and the ISP must remove the copyrighted material immediately.  This is something any artist can do... you just include the following in your letter:

1. Your signature
2. Identification of your work that was infringed
3. Identification of the material that infringed your work and that you wish to have taken down, and enough information to allow the ISP to locate the material
4. Your contact information
5. A statement that you have a “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”
6. A statement that “the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

There's no other work required, no fee, no central clearinghouse.  Most ISPs, like YouTube, would rather just take down the offending work than fight you in potential litigation.  That's one of the benefits of the DMCA takedown provision - it's quick and painless and it almost always works. Another benefit of this provision is that you can fight back against infringers without paying a dime in lawyer's fees or litigation costs.

But there are downsides too.  For example: it requires perpetual vigilance.  In this case, Activision went right after YouTube, which took down the video immediately.  Yet the video is still present on the web and can only be taken down if Activision sends whoever is hosting the video a takedown notice.    To wit: Liveleak was able to catch the video before it went down; you can watch it here if you want.  It's truly ludicrous and hilarious.  This is one reason why the DMCA (signed into law in 1998) is simultaneously despised and beloved.  When it works, it really works.  But when it fails, it's a giant clusterfuck.  As with most of this country's intellectual property laws, I'm of two minds on the DMCA.  I'm a big fan when it helps the small and struggling artist, but I'm less forgiving when the law can be used by giant corporations to abuse copyright and bully individual artists.  And Lordy Lordy Lordy does the DMCA get abused by corporate copyright holders.

Last week, Gizmodo published this piece discussing how large corporations use the DMCA to strong-arm researchers into censoring their work in order to prevent embarrassing revelations related to their copyrights.  And who could forget NBC sending Brian Kamerer a DMCA takedown notice for HIS OWN COPYRIGHTED VIDEO after it was featured on The Tonight Show without his permission?  And my personal favorite, the RIAA (Recording Industry Association of America), complaining that Google (YouTube's parent company) wasn't taking the problem seriously, even after Google removed 1.2 millions of copyrighted links in one month after receiving the RIAA's DMCA takedown notices.

One of the problems, of course, is that because issuing a takedown notice is free of charge, the only hinderance is the cost of paper and printer ink.  Corporations can fire off reams of takedown notices without batting an eye.  And while it's certainly possible to fight the takedown notice and have your work reinstated online, well that requires fighting it out through litigation, another cost that a corporation can absorb much more easily than an individual artist.

I don't have an answer on how to fix this, but I do know that there needs to be a way to disincentivize the corporations from issuing takedown notices en masse under the DMCA.  One possible way is to include the infringer in the process instead of going directly to the ISP.  Maybe create a department within the Copyright Office that would handle the takedown notices or attach a fee to it.  I'm just spit-balling here.  I'm perfectly willing to concede that these could be bad ideas, but I do think we need to start somewhere.

Nevertheless, I don't think the DMCA should be killed wholesale, precisely because of the boon it provides to the individual artist who wants nothing more than to protect his or her work.  And if North Korea wants to reissue their propaganda video without using someone else's copyrighted video, I will stand up for their right to do that.  Although somehow I think they have bigger fish to fry at the moment.

Sherlock Holmes and the Case of Copyright Duration

Is Sherlock Holmes in the public domain?  Holmes scholar and lawyer Leslie S. Klinger believes so, and he is suing the Conan Doyle estate to prove just that.

It all started, as these things do, with money.  You see, a few years ago Klinger published a new Holmes novel and, like many who wished to capitalize on the popularity of Sherlock (Guy Ritchie and Steven Moffat in particular), he paid a hefty licensing fee to the Conan Doyle estate for the privilege.

Recently, Klinger decided to have another go at Sherlock; in particular, he wanted to publish a collection of short stories. Once again, the Conan Doyle estate demanded a payout.  Much like the Tolkien estate, the Conan Doyles are renowned to be fiercely protective of their copyright and they doggedly pursue anyone whom they feel infringes it.  This time, however, Klinger decided to sue the estate as a preemptive measure, claiming that Holmes and his entire canon (supporting character like Watson, Moriarty, Mrs. Hudson, the house at 221B Baker St, character traits like Holmes' deductive reasoning and friendship with Watson, etc.) were in the public domain and thus, he didn't have to pay them a licensing fee.

This is a pretty serious move and in all likelihood it has legal support.  That's because in the United States all works published before 1922 are automatically in the public domain and are thus available for anyone to profit from. [Author's note: aside from pre-1922 works, any work whose copyright expires will move into the public domain.]  Sherlock Holmes made his first appearance in 1887's A Study in Scarlet, and nearly his entire world found its way into print before 1922.  By that logic, it's hard to see how the character won't be found to be in the public domain, and if a judge does find for Klinger, that's going to have major repercussions for the character.

In contrast, the estate argues that because Sir Arthur was still publishing Holmes stories as late as 1927, the character and his entire canon don't fall into the public domain. That's where the wrinkle in this case appears.  Apparently, one of the authors whose short story Klinger wants to publish used a Holmes character that didn't appear in a published work until 1924. The case is really interesting and you can read all about it here.

I brought up this issue because of a quote at the end of the article.  When interviewed about the Klinger v. Conan Doyle case, New York based entertainment lawyer John J. Tormey III said that, "Copyright was intended by its progenitors to be a limited monopoly, not an indefinite monopoly."  Amen brother!  On at least two occasions (here and here), I've discussed how the original purpose behind copyright protection in the U.S. wasn't to grant the author everlasting control at the expense of all others, but to foster innovation for the betterment of society.  Our creative landscape is littered with copyright owners (some individuals and families, but mostly corporations), holding their copyrights in an iron death grip, suing the crap out of anyone large or small (usually small), in order to prevent them profiting from that copyright.

That's why I think we need a drastic overhaul when it comes to duration of copyright - in modern political parlance, I would say that I've "evolved" on the matter... which really means I was never a fan of the current duration allowing a copyright to last for the life of the author, plus 70 years (and going up to 95 years for corporate copyright holders), but I just never felt comfortable saying it aloud until now.  Forgive my lack of lawyerly eloquence, but life plus 70 is just too damn long.  Look, I get that if you create something that's profitable, you want to be able to control it, make your living off of it, and provide for you family.  That's a natural instinct and a praise-worthy one.  Piracy - the use of your work without your permission - should be dissuaded and punished where appropriate.

The problem with the current durational scheme is that it results in less innovation and artistic expression and more lawsuits.  Under the current law, the author's estate can use and exploit the author's original work for several generations after he dies. If you can stay rich off of your grandpa's work, what incentivizes you to create your own work of artistic expression...to add something to society?  Even worse, many works of artistic expression end up being purchased by large corporations who use their considerable resources to suppress smaller artists who wish to use those copyrights as points of inspiration for their own work.  [Corporate bullying of individual artists is one of my bugaboos.]

That's why I propose the following four-tiered amendment:

1. A copyright will last for the life of the author and no longer.  Upon the author's death, the copyright will move into the public domain.
2. If the author sells the copyright to another party (a corporation, say), the party will have 15 years to use the copyright.  If the party does not use the copyright in 15 years, the copyright will revert in full back to the author.  If the author dies before the copyright can revert back to him, the copyright will expire and the work will move into the public domain.
3. if the author sells the copyright to a non-corporate buyer, and the buyer uses the copyright within the 15 year timeframe, the copyright will last for the life of the buyer.  Upon the buyer's death, the copyright will move into the public domain.
4. If the author sells the copyright to a corporate buyer and the corporation uses the copyright with the 15 year timeframe, the copyright will last for 70 years, measured from the original sale of the copyright.  At the end of the 70 year period, the copyright will move into the public domain.

I know, this makes me look like an anti-free market socialist.  In fact, I'm willing to bet within two days of publishing this post, I'll get some pushback on the feasibility of this system or the logic behind it.  I don't care though. The truth is, limiting copyright ownership is the best way to spur innovation and growth, which is what our founding fathers envisioned.  A system like this will help limit perpetual copyright monopolies and inspire copyright holders to be pushing boundaries.  Hell, even The Economist agrees that copyright durations should be shorter, so I can't be totally out of my mind.

Sherlock Holmes is probably in the public domain already, but if he isn't, he should be.  Arthur Conan Doyle created him over 120 years ago and his descendants have profited amply from his popularity.  Now it's time for Conan Doyle's great-grand kids to go out there and make their own mark on society and let the world have Sherlock.

Saying "No": A Lesson In Controlling Your Business

A coworker heard about my background in TV production and asked for my help in shooting a documentary about a social justice issue she was passionate about.  Since we both work full-time, she wanted to film on nights and weekends.  I declined politely, saying [truthfully] "I don't do that kind of work anymore."  I'd long since sold off all my production equipment and I've turned down every producing job I've been offered since 2009.  Undeterred, she continued to sell me on the project and when she was done, she said what they always say: "I can't afford to pay you, but you'll get lots of great experience."  This was my response:

"I don't need experience.  I need money."

I get asked to help out on video projects a lot... at least once a month and sometimes weekly.  I say no to all of them.  That's because most of the time, people don't realize what kind of time and effort these projects require, and therefore, what kind of commitment they're asking of me.  The few who ARE aware will offer me "experience" in the hopes that it will be enough to sway me.  It never is. I don't produce anymore, but if you're going to convince me to lend my considerable production expertise to your video project, I want - nay, DEMAND - to be paid for it.  I'm not shy about it and I feel no shame or embarrassment by telling someone that without $$$ they'll have to look for someone more altruistic.

I've written about doing unpaid work in the past so I won't go into the pros and cons again here.  Instead, I'm going to talk about the power of learning to say "No" to situations that don't propel your art and business forward. It's such an important thing for young artists to know, yet so hard to put into practice.

I don't turn down requests to work on unpaid video projects out of greed or selfishness.  I do it because I learned from personal experience that it did actual harm to my business. When I was first breaking into the entertainment industry I took tons of unpaid work because I was too afraid to turn down any job, regardless of compensation, for fear of doing irreparable harm to my reputation.  "Don't hire Greg.  He's not a team player... he [gasp] wants to be paid."   At one point, I had three simultaneous unpaid internships, and various unpaid production assistant gigs.  I had more jobs than I knew what to do with, but my parents had to pay my rent because my income was $0.  I wasn't in control of my sh*t.

In hindsight, I realize that I took all that unpaid work because I didn't understand the value I brought to the job.  I didn't believe that I could say "No" and get away with it.  One day, I made a conscious decision to take control.  I would refuse all unpaid job offers and only accept paying gigs.  That was a good decision - a difficult decision because it resulted in a nine month work drought, but I'm glad I made it.  Eventually, the paying work came and it paid a living wage.

I understand how tough it can be to turn down a seemingly perfectly good job, especially for young up and coming artrepreneurs.  Figuring out what situations are good for your business or bad for your business is a calculus that's different for everyone.  And it can only be done through personal research and soul-searching.  It took me years to discover that working for free was harming my business instead of helping.  So instead of just yelling at you to say "No" to bad situations, I'll give you two real life examples (three if you count mine above) that will hopefully inspire you to be vigilant about what kinds of work situations are right for you.

1. An illustrator friend of mine was recently working for a client.  The client became difficult to work with and made numerous demanding requests.  My friend decided to inform the client that she would no longer be able to work under these conditions.  She further told the client that if they no longer appreciated her work, they were perfectly in their rights to find another illustrator.  After several conversations, the client decided to discontinue the relationship.  When I asked my friend if she was angry, she said, "No.  That relationship wasn't working for me and it wasn't working for them.  Neither of us were happy.  I had to walk away."
2. A painter friend of mine was selling his paintings.  All the paintings were at a fixed price and he refused to negotiate over them.  When I asked him why he didn't negotiate, he said, "I don't like negotiating so there's no point wasting my time doing it.  The paintings cost what they're worth."

Both of these people are professional artists who make a living by making art.  They each figured out what situations worked for them and what didn't.  They each learned how to say "No." And once they learned to say "No," they didn't run from it or act embarrassed by it.  They embraced it.  And once you learn how to make that choice, your business will be able to take off.

Topless Celebrity Photos! Or How To Get Sued Like A Paparazzo

A few weeks ago, I wrote this piece about how artists own the copyright to their work even after they've sold the physical manifestation of that work (i.e. retaining the copyright over a painting even after selling the physical painting to a buyer).  The post generated a lot of interest and in the ensuing discussion, I got several variants of this question:

"If I take a topless photo of [Hot Celebrity Female] at a secluded beach, can she interfere with my ownership over that photo and prevent me from mass producing it and make a mint?"

As with everything in the law, the answer is a resounding "kind of!" Hot Celebrity Female can indeed interfere with your ability to profit from selling topless photos of her to a tabloid... but not through manipulation of copyright ownership (which, I presume, is what the question was really asking). When the subject of your art is another person, they cannot interfere with your ownership of the copyright, nor can they claim ownership rights over that photo simply because they are the subject.  The copyright is vested only in the artist except in these three scenarios:

1. Sale of the copyright to another (i.e. selling the photo and copyright to TMZ)
2. Conveyance of the copyright through a bequest or gift (i.e. giving the photo and copyright to a family member or friend)
3. Certain work for hire situations (usually on projects that require collaboration, like films)

"But," you might ask, "don't celebrities have ownership rights over their personal appearances?"  Nope.  Neither copyright nor trademark law offer protection over your personal appearance.  Trademark law DOES allow you to register many other visual elements such as logos, symbols, patterns, designs - but your personal appearance is not granted any protection under the intellectual property laws of this country.  This means that, unless you sell or gift the copyright, or the copyright isn't yours to begin with, there's really nothing that Hot Celebrity Female can do to interfere with your ownership.  If you are inclined to do so, you are free to take a highly compromising picture of her and sell or license that copyright to TMZ, The Daily Mail, The New York Post, and any other publication that profits from the exploitation of celebrity culture.  You'll probably make a small bounty doing that and in fact, there's an entire group of professional photographers who make their living precisely this way: the paparazzi.

But that's not the end of the story.  Owning the copyright to topless photos of Hot Celebrity Female does not give you an unassailable right to do whatever you please with those photographs.  Even though she has no ownership rights over the photos, she can still take you to court in a big way.  Everyone - from the lowliest plebe to the most glorious celebrity - has a right to a certain degree of privacy, and tort law provides several tools that allow people to fight an invasion of that privacy.

One of the more potent tools that celebs like to use is something called "appropriation of name or likeness."  An appropriation of name or likeness is considered an invasion of privacy when a person uses your name or likeness  for commercial purposes without your permission.  So when you take a compromising photograph of a celebrity, especially in locations where they have a certain expectation of privacy, you open yourself to liability.  That's why paparazzi and the magazines they sell to get sued ALL THE TIME.  Usually, if the celebrity is in a public place, like at a restaurant or on a red carpet, there's little they can do to fight publication of that image, so an appropriation of likeness claim won't go very far.  But when the photo is snapped in a private location (like in their backyards or on a balcony at a remote resort in the rain forest), you could end up losing all the money you made from selling that picture.  Remember last fall when some paparazzo snapped photos of a topless Kate Middleton on a secluded balcony using a telephoto lens? Do you remember the Royal family suing the french magazine that published them?  The magazine lost that battle because Princess Kate wasn't photographed topless at a public beach... she was on a private balcony that was obscured by tree cover.  The only way the photographer was able to get those photos was by using the kind of lens usually reserved for NSA spy satellites.

So the moral of the story... Hot Female Celebrity can't take away your ownership over that photo you took of her.  But she can, in some situations, prevent you from making money off of it.  You, as the photographer, have to decide whether all that trouble is worth it just to catch a glimpse of Kate Middleton's boobs.

Robin Hood And The Much Needed Change In Copyright Policy

A few years ago, Ridley Scott decided to direct a big budget Robin Hood film from an original script by Ethan Reiff and Cyrus Voris. The script was called Nottingham and it was a particularly unique take on the Robin Hood mythos: it was to be a medieval police procedural where the protagonist, the Sheriff of Nottingham, used forensic analysis and new investigation techniques to hunt down Robin (my understanding was that Robin would've been a fairly minor role, played almost like a movie monster). Well that's new! The take on the story wowed Scott and when he got involved, he hired writer Brian Helgeland to do a page-one rewrite of the script... because in Hollywood, the best way to show you love and appreciate someone's work is to scrap it altogether and replace it wholesale with something else. Anyway, the new collaboration yielded an even more intriguing concept: what if the Sheriff and Robin Hood were the same person but didn't know it?!! The story would be a Fight Club-esque exploration of personality disorders couched in the language of a medieval action film.

Like 'em or not, both of those concepts were definitely unique takes on the subject matter. But somewhere between the numerous rewrites and day one of principal photography, the story lost these elements and became 2010's Robin Hood, a fairly sober three hour origin story about the rights of landowners, following a middle-aged Robin as he tried to get King John to sign the Magna Carta.  Snore. The Sheriff himself showed up for about five minutes and was played as a bumbling ass.

Sadly, we'll probably never see Nottingham since the copyright to that script is now owned by Universal Pictures and they'll never let it out of their death grip. In Hollywood, when a writer pens a spec script (that is, an original, non-commissioned, unsolicited screenplay), the studio will always acquire the copyright from the writer before the script goes in front of the cameras. There are two ways this can happen: the first is through an "option." The studio pays the writer a nominal fee for the exclusive right to turn that script into a film for a stated period of time. The writer will retain ownership over the copyright until the script goes into production, at which point the studio will buy it outright (as always, I'm speaking in generalities and the specifics of each deal will depend on a number of different factors, such as the writer's reputation, the studio's negotiating tactics, etc). The second way is that the studio bypasses the option and buys the script directly from the writer.

Either way, the copyright eventually passes to the studio, and the studios tend not to be shy about exercising complete dominion over the work. They can shelve the script entirely or rewrite it from page one, changing literally everything that makes that script distinctive: the title, character names, thematic subtext, you name it. Even if the original writer is kept on board to do those rewrites, he is no longer working on his own property. He's just a hired gun and has no say over the changes demanded by the studio. Imagine getting fired from your own script because you didn't like the changes being made to it and you have a sense of how F'd up Hollywood can be sometimes. And this kind of thing happens all the time, where the final film bears so little resemblance to the original work that it becomes a functionally different entity altogether. And the saddest part is that these original screenplays languish forever in dusty studio vaults, never to be seen or heard from again.

So I'm 500 words into this essay and I haven't even stated why I'm writing it. Well honestly, I'm a film fan and I want to see Nottingham, which means that I'd like to see Reiff and Voris get another crack at having their script made. The fact that this will never happen is a creative travesty and I personally believe it violates the spirit of copyright. The protections given to copyright holders in the Constitution weren't meant to give them unassailable right to prevent others from using their work. Sure, there were protections against infringement, but the real purpose of the law was to promote artistic progress for the betterment of society, not for individual profit. Article I, Section 8 of the U.S. Constitution reads that:

“Congress shall have the power... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Just check out Title 17, Chapter 1 of the U.S. Copyright Law to see what I'm talking about. There are whole species of escape hatches and exceptions built into the law that are designed to give artists leeway in using and relying on the works of others.  Fair use is a great and popular example of that.  In other words, the "exclusive rights" given to copyright holders under the law aren't so exclusive when you step back and look at the law in its entirety. But over time, the copyright policy in this country shifted away from innovation for the greater good to favor the copyright holder, which in many cases tend to be giant corporations. These corporate copyright holders are granted a wide latitude when protecting their work, often at the expense of individual artists. Hell, just this past week the new Copyright Alert System went into effect - a system intended to prevent online piracy of copyrighted works. Now fighting piracy is a decent (if not noble) intention, but this new law was backed by the RIAA, an organization that spent 10 years suing teenagers and dead people for downloading music from peer-to-peer sites, so you have to wonder what their motivations truly are. Just a small example: as a result of an RIAA lawsuit, Joel Tenenbaum of Massachusetts owes the record companies $675,000 for downloading 22 songs.

I'm on record saying that this type of one-sided treatment needs to stop, which is why I think the copyright laws in the country should be revised to better reflect the needs of individual artists. In particular, I would support a change that would permit copyright to automatically revert back to the original author after a certain period of time - say 10 years - if it went unused or was otherwise changed to such a degree that it could no longer be considered a derivate work. In practice, this system would allow the studio to use the screenplay it had just purchased and try to make it into a film. If the script underwent dramatic changes (as with Nottingham), the original script could revert back to the screenwriters, who could then have another chance to make the film they envisioned.

I'm sure there are lots of kinks to work out with the change I've envisioned; namely, how to enforce the automatic reversion, determining what is considered "use" of the material, and how continuous that usage must be over the 10 year period, but I think this is a conversation worth having. There's no reason why Nottingham and Robin Hood can't co-exist. Especially in light of the fact that A) Robin Hood bombed, and B) a revisionist take on the material favoring the Sheriff as a medieval detective could have enormous franchise potential. If Universal doesn't want a piece of that pie, there's no reason it has to throw the entire thing in the trash.

[Author's note: I realize that I've posted two entries in a 3 week period bagging on Ridley Scott films, but I'm actually a big fan. I think Kingdom of Heaven is a masterpiece.]

When Below-The-Line Goes Over The Cliff: Class Warfare In Hollywood

If you have a friend or family member who works in the entertainment industry, then you've probably seen them change their Facebook profile picture or other social media avatar to this:

This image represents a green screen, a necessary tool for digital visual effects designers, the latest Hollywood sub-industry that's about to fall off its own fiscal cliff.  Most people don't know that Sunday's Oscar ceremony was picketed by members of the visual effects community trying to raise awareness about the financial hardships many in that industry face.  You see, Hollywood studios have basically been involved in a class war against below-the-line talent (like visual effects artists, writers, prop people, production designers, etc.) for some time now.  With movie budgets ballooning past all semblance of reality, many of the studios have started outsourcing the VFX work to cheaper locales overseas in order to take advantage of significant savings in cost and manpower, as well as tax breaks and subsidies.  For the artist who's slaved over a hot computer for years in order to make the physically impossible digitally possible, this relentless "cut costs at all costs" approach has resulted in long hours, poor working conditions, bad pay, no respect, and potential job loss.  Too make matters worse, most of the artists and the companies they work for don't get to participate in any profit sharing if the film is a hit.

When I lived in LA, I interned at two separate digital effects houses, one of them did the VFX for Smallville and the other was finishing up some VFX for Pirates of the Caribbean: Dead Man's Chest.  I saw first hand just what they went through.  Say what you want about the Pirates franchise, but there's no denying that the visual effects were stunning.  I think Davy Jones is the most perfectly realized digital villain ever made because of the blood sweat and tears those animators poured into him for 20 hours a day, seven days a week, for months on end without a break.  When the project ended, their pay was barely better than mine!

Anyway, this above-the-line/ below-the-line rivalry came to a head during this Sunday's Oscar telecast when Bill Westenhofer, a VFX supervisor for Rhythm and Hues, accepted the award his company won for their work on Life of Pi and had his mic cut when he started to talk about the financial difficulties facing his company.  In fact, Rhythm and Hues, the powerhouse FX company behind Babe, Happy Feet, The Incredible Hulk, 300, The Chronicles of Narnia, and The Hunger Games just filed for bankruptcy because it kept getting underbid by oversea FX houses.  It didn't help matters when Ang Lee failed to thank the VFX guys in his Best Director speech and actively undermined the entire VFX industry a few days ago by publicly wishing that visual effects were cheaper.

IO9 has a nice write up here about the situation.  You should also read this piece by Drew McWeeny of HitFix, one of the best film critics on the web today. They explain better than I do why this is important.

As a film fan, this bugs the hell out of me because I want to see quality work made by people who are good at their jobs.  As a producer it frustrates me because I've seen too many people boxed out of deserving financial reward because they weren't powerful enough to fight for their rights.  As a human being and American, it angers me because this schism in the entertainment world pretty accurately mirrors the class war going on in the rest of the economy. And as a lawyer, it incenses me because there are so few legal avenues available for these guys to fight back, even if they are willing.

As a general matter, our current law is somewhere between 10-15 years behind the times; for all intents and purposes it's stuck in 1997. When it comes to protected groups, this country has done a good job legislating to protect people against discrimination based on race, gender, national origin, age, and disability.  But it's clear that Congress does not recognize any class division in this country and thus has no intention to protect class through legislation.  And make no mistake, above-the-line types like executives, directors, and producers are in a wholly separate financial class than the below-the-line talent like VFX artists and writers.  They're the ones living paycheck to paycheck.  They're the ones going without medical coverage so they afford gas to drive their kids to school, they're the ones who never know where the next paycheck is coming from and as a result rent their homes instead of owning because they could lose their job like *that* and heaven help them pay property taxes in LA with no money coming in.  So when the high muck-a-mucks make a decision to freeze out the VFX artists from getting any kind of financial or personal recognition, much like they did during 2007's Writer's Strike, it means that their legal options are few and far between.  In short, the VFX artists don't have any legal rights to fall back on outside of any contractual ones that might have been breached.

Devin Faraci over at Badass Digest (another of the web's best film journalists) suggested that it's time for the VFX artists to unionize, and I like that idea. But Devin also recognized that as a culture we've largely moved past that.  And really, it's not like belonging to the WGA helped the writers in 2007.  So what else can the artists do?  Well, raising awareness and generating public support is certainly key if they want to increase their bargaining power.  But to be honest, I don't really think they have a strong legal challenge here, and that pisses me off.  Our current law is just not adequately designed to help those who earn less than others, and now the VFX artists in Hollywood are going to be the next casualty.

[Updated!] Paper Equals Proof, Why You Should Get Everything In Writing

"A verbal contract isn't worth the paper it's written on." - Samuel Goldwyn

Even though this quote is both misattributed and didn't actually happen, I love it because it speaks a simple truth about contracts. Namely, if you don't have one in writing, you don't have one.

When I first moved to LA after graduating from RISD, I picked up some freelance work from an indie producer who was trying to get some low-budget TV projects off the ground.  He liked my moxie and we got along well, so he hired me as a camera-operator for a demo he was producing.  He offered me $100 per day for three days work in a transaction that was conducted orally.  I wanted the offer in writing, but I was so desperate for work that I didn't want to negotiate myself out of the job by asking for it.

Yes, I was stupid for not getting it in writing and when he stiffed me on half the payment, we both knew that even though a verbal contract is legally enforceable, I couldn't prove that he owed me another $150. There are thousands of young artists - and a whole lot of experienced ones - in the same boat who don't put anything in writing because they don't know that they should, can't be bothered, or think that drafting a contract is too expensive and/or time-consuming.  Now I certainly can't do anything about laziness or apathy, but I can tell you why contracts are important and how you can draft your own.

As a lawyer, I like everything in writing because paper equals proof; that is to say, having something in writing is proof that a conversation took place, or that an agreement occurred.  That's all a contract is after all: evidence that an agreement took place so that if you end up in a legal battle, you can prove your side of the story.  Otherwise you end up in a "he said/he said" situation and courts generally don't look favorably on those. So for the love of God, if you're hired to make a work of art, or you sell a piece of art, memorialize it somewhere somehow.  "But Greg" you might say, "don't contracts have to be drafted by lawyers?"  Well my friends, here's the dirty little secret behind contracts - NOPE!

At the risk of negotiating myself out of potential clients (I do that a lot, don't I?), a contract is no more enforceable in court just because it was written by a lawyer.  Obviously there are certain benefits to having a contract drafted by someone with a legal education - namely a lawyer can think of all sorts of ways to protect you in writing than you couldn't dream of - but if you're like most artists out there, then you don't have a lot of discretionary cash lying around to make this happen.  So instead, I'm going to give you some tips to help you make your own while maximizing your self-protection.

1. For a contract/agreement/bill of sale to be valid, it must state all the material terms.  Specifically, you need to mention the parties involved in the transaction, the quantity of items sold or the type of service rendered, and price.  You should also put anything else you think is important.  If you don't wish to have a return policy, make sure to state that all sales are final.
2. If you're shipping a work to a buyer, write down which party is liable if the art is destroyed or damaged during shipment.  This is called Risk of Loss and can bite you in the ass if it's not discussed ahead of time.
3. Make sure to mention who owns the copyright upon completion of the work.  If it's a work-for-hire situation, you could end up losing it without even realizing it.
4. Use plain English.  Most people think a contract needs a lot of "heretofore's" and "wherein's" and "thusly's"  but they just make it harder to read.  Instead, draft a contract like you would draft a professional email to a colleague.
5. Email chains are acceptable in lieu of a paper agreement as long as the material terms are there and understood by all parties.
6. For bills of sale, they can be sent after the sale, although they still need the material terms.
7. You can use a template version so you don't have to draft a new one from scratch for each transaction.
8. Keep two copies of each final agreement, one physical paper copy and one scanned copy on your hard drive.
9. A contract isn't valid if both parties don't agree to all the terms.  Before you start working, make sure the other party is on board because you could end up doing a lot of work without getting paid.
10. Finished contracts should be signed and dated by both parties and each party should have a copy of the signed and dated final.
11. Stand your ground on the terms you can't live without and be flexible on everything else.  If our Congress has taught us anything, it's that drawing a hard line in the sand on every issue results in no one getting anything they want.  Be flexible and willing to negotiate.
12. Finally, don't be afraid to ask for a written version of your verbal agreement.  Too many people don't do this because they think it's disrespectful or indicates mistrust.  This is not true.  If anything, you'll look more professional for it.

The truth about contracts is that if you know what you want and are willing to put a little time and effort into getting it down on paper, they're not nearly as intimidating as they seem at first.  That said, if you truly don't know what you're doing (I leave it to you to know when that is), or you're just not comfortable drafting an agreement, please please please hire a lawyer to do it for you.

If you're trying to make a living as an artist, then you don't need things to be more difficult... the deck is already stacked heavily against you.  Having a written agreement for each of your sales/hires/commissions/whatevers may create a bit more work up front for you, but I promise you that the one time you need it and you have it, it will save your ass.  And then it will be worth it.

Even When You Sell Your Work, You Still Own Your Work

My cousin Danny and his wife Lira are talented fine artists and painters. Every so often, they'll hold open studios at their home and I like to attend so I can see what they've been working on recently. During the last open studio, one of Danny's neighbors decided to buy a painting. After a very brief discussion over price, the neighbor went away and reappeared five minutes later with cash. He gave Danny the cash, they shook hands, and the neighbor walked away with the painting. The entire transaction took three seconds. There was no discussion regarding return policy, dissatisfaction with the art, or ownership over the art's copyright upon conveyance. Honestly, Danny didn't seem all that concerned about losing his rights to the work once it left his studio, and thus he felt no compulsion to memorialize the sale in writing with a discussion over terms of the sale.

And you know what? He was right not to be worried, because under U.S. Copyright Law, he still owns that work! You see, according to this circular put out by the U.S. Copyright Office:

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent... Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the owner­ ship, inheritance, or transfer of personal property as well as terms of contracts or conduct of business.

In plain English, this means that when an artist sells his artwork to a buyer, he is only selling the physical object - the wood, canvas, and paint - not the artistic expression that created the painting. In order for the copyright to be conveyed along with the artwork, it must be done explicitly in writing. Therefore, even though Danny's neighbor is now the owner of the physical painting, Danny still owns the artistic expression of that painting, and retains full control over how to use, display, and promote that image.

[Author's note: This does not apply to artists who are hired to create a custom work of art. That's a work-for-hire scenario and the copyright belongs to the person who commissioned the work, not the artist who creates it.]

Here's another recent example: the wedding photographer I hired to make me look good on my wedding day retains the copyright to my wedding photos. If he decides to promote his business using images he took of me and my wife, I have no say about it, even though I own the physical prints and JPEG files of those photos (as long as I'm not defamed, but that's a blog post for a different time). So this awesome pic of me?

Even though it's my face and my killer smile, I can't make any money off of it. I should add that buyers DO retain the right to display the physical work for non-commercial purposes, but will of course open themselves to a lawsuit if they attempt to make money off a copyright they don't own.

So if you're a fine artist and you're concerned that by selling your work you lose all rights to it, don't worry. You will control that work for as long as you live (and for 70 years after you die), even if you've long since sold the piece of canvas it was painted on.

[Author's Update, Feb, 18th, 2013 1:17pm: Danny told me today that following a sale, he will provide buyers with a Bill of Sale informing them that the copyright remains with him. This is a good practice and I highly recommend that everyone out there adopt this or a similar practice. Too many artists think that once they sell the work they have to give up the copyright, and that's just not the case.]

Court to Netflix: "You Don't Got Mail"

Well, barely two weeks have passed since my self-imposed exile from the blog, but I promised that I would I pipe up if something caught my interest, so here I am, piping away!

A few days ago, a three judge panel in Washington D.C. smacked the U.S. Post Office for giving favorable treatment to Netflix.  Gamefly, the  video-game-by-mail service, sued the Post Office claiming that mail order DVDs sent out by Netflix were bypassing the traditional route and being fast-forwarded to customers.  The end result was discrimination against Gamefly and other mail order services by forcing them into slower routes, while making them to pay higher shipping fees than Netflix.

Netflix sure doesn't need this right now.  They've had a rough go of it the past 16 months.  First there was the price hike debacle in September 2011 which saw customers abandoning the service like it was afflicted with syphilis.   Their stocks tanked after less than stellar subscribership in the third quarter this year.  And don't forget the recent spate of outages. Even now with their stock rebounding after scoring a partnership to stream Disney content, Netflix is in a tenuous place because their long-term plan to move from a mail delivery service to an entirely streaming online service is both pricey and technology dependent.  Not to mention that Netflix has to continue negotiating deals with movie studios: high-level sophisticated players who negotiate like mobsters because they know without their content, Netflix dies.  Which means that if Netflix wants to keep streaming content, there's going to be a price hike sometime in the future... probably sooner than later too.  God help Reed Hastings when he has to make that public announcement!  This means that Netflix is going to be leaning on its DVD mail service longer than it expected way back in the halcyon days of August 2011 when Qwikster sounded like a good idea.  So this Gamefly lawsuit is pretty much a kick in the nuggets for Netflix any way you look at it.

But here's my prediction: Netflix isn't going anywhere.  First, mail order or streaming, Netflix still does it better than anyone else and with a wide enough selection of content to make most people think twice about leaving.  Second, Netflix is expanding its business model by creating original content and picking up critical darling Arrested Development (one of my all-time faves) for a 14 episode run, with potential for a fifth season.  Lastly, DVDs are a dead format and everyone knows it.  DVD sales have been steadily declining over the past few years.  I'm a big fan of physical formats like Blu-ray because of the high quality audio-video presentation, but I'll also acknowledge that I'd rather rent through Netflix, Hulu, or Apple TV the vast majority of the time, and I think the American public agrees with me.  Hell, even my mom stopped watching DVDs.  She now watches movies exclusively On Demand.  My mom!!!  The Blu-Ray player I bought her two years ago is the fanciest dust collection device she owns.

Netflix knows the end of the physical format is nigh; their problem is that they got bitten for trying to usher it along sooner than the public was ready.  But that time is here folks.  And Netflix helped lead the way.

Okay, back into exile I go...