Interviewing An Expert

For this new post we were assigned with either interviewing an entertainment law expert or reviewing three podcasts. Since I’ve already done the podcast one, I decided to go with the interview this time. Coincidentally, I am interviewing Mr. Gordon Firemark, who not only has years in the entertainment law business, but also has a podcast the “Entertainment Law Update Podcast” by Gordon Firemark, in which he discusses a variety of topics regarding different cases that could in court at the moment among other subjects.

For this interview I wanted it to be more basic than a deep dig into the topic of what entertainment law is. We as future entrepreneurs in the entertainment business and students of Full Sail University have the logical obligation to educate ourselves with the goings-on of the legal side of things, especially if we’re planning on having a business. So, with all of that said, here are some questions regarding the foundation of your own company, our obligations as said founders, among others. I hope you find this useful for the foundation of your company as I did with mine.

1. What does entertainment law entail?

Entertainment law is an amalgam of many bodies of law.  The foundational principles at work in the field stem from: Contract law, labor law, copyright, trademark & patent law, business & commercial law, and a bit of tax law.   Equally important is a thorough understanding of the entertainment industry, and the specific segment in which you work. Entertainment Lawyers tend to sub-specialize in music, TV, film, theater, etc.  

Within the field there are two types of lawyers.  Transactional lawyers, who make the deals, negotiate, draft contracts, set up companies, etc. and Litigation lawyers, who handle disputes, lawsuits, arbitration, etc.  There are few who wear both hats, but mostly folks do one or the other.  Litigation lawyers also have to really understand the rules of Civil Procedure and Evidence, which play into the way legal proceedings in court are managed.

2. As students we haven't dealt with the type of situation where we would need legal representation. If we were in need of legal help what are things that we look for in an entertainment business lawyer?

Hiring a lawyer is an important business decision.  Price should not be a primary factor.  Find a lawyer who has experience in the field, who knows the law, and understands your business/market.  You obviously need to trust your lawyer, so be sure you feel comfortable sharing your most intimate business information with the person.  You want someone who is available, reachable, and responsive and with whom you feel some kind of a "connection".   Sometimes lawyers have to tell hard truths and give unwanted advice.  Be sure your lawyer is someone you feel you can listen to, even when the news isn't good.  Finally, you want someone who will get things done.  In short, you're looking for experience, credibility, likeability, and effectiveness.

Then, all other things being equal, consider the fee.  Entertainment lawyers' fees range from around $200 to $600 per hour. Sometimes we will do flat-rate per-project kinds of deals, and sometimes I will take a percentage of an artist-client's gross earnings, instead of hourly fees.  

3. As part of our preparation for this Master's we have to come up with our own ideas for a prospective business in the entertainment industry. What is the legal procedure I would have to go through in order to open our businesses?

Starting a new business.  First, get a business plan organized.  Not strictly a legal process, but if your business will involve buying, selling, or otherwise dealing with intellectual property, you'll want to know the boundaries and parameters.  So consulting with a lawyer when preparing your plan is a good idea.

Next, you'll need to consider forming an entity.  Will you have partners?  Investors?  Do you need insulation from potential liability?  Will you be operating in multiple locations?, etc.  These are all factors to be considered in deciding whether to be a DBA, partnership, corporation, Limited Liability Company, limited partnership or some other form.

When you form an entity, you sign up with the government to pay taxes, etc.  If you're hiring employees, you need to think about payroll, insurance, etc.

Next, you'll want to establish your office policies and procedures, and develop your model for the transactions you'll do regularly.  Setting up a short form that acts as your checklist or worksheet when making deals, will make your operations smoother and keep your legal costs down when it comes time to draw up contracts.  A lawyer can help you with this.

4. I want to protect my company from every and any type of action that could put in danger the reputation that I'm trying to build with Tropical Moon Entertainment. What can I do to protect my brand?

As far as protecting the BRAND, registering a trade- or service mark is very important.  Next, being careful about your business dealings with others can count.  Being associated with shady types can really drag your reputation down too.  

As far as protecting against liability, forming an entity, as mentioned above is a good start. Good insurance is also important.

5. Considering how the internet is used today, we use the internet for so many things that sometimes we don't know what it is that we're doing and/or if we're breaking any rules or laws. When it comes to cyber law, what are the laws that are most overlooked by the general public?

I think the general public doesn't even bother to consider that the stuff they see on the 'net is somebody's property.  Intellectual Property is a mystery to most people.    If you look on my blog, you'll see an article about ASCAP collecting and "going after" restaurants and bars.  Read the comments.  It's amazing that people think that music is "free" to use as they please.

http://firemark.com/2007/08/23/restaurants-sued-for-playing-music-without-ascapbmi-licenses/

http://firemark.com/2008/12/02/rhode-island-pub-music/

http://firemark.com/2007/10/08/listening-to-the-radio-at-work-you-may-be-a-copyright-infringer/

http://firemark.com/2007/08/23/ascap-sues-restaurants-over-music-use-are-theatres-next/

The other issue is the posting of videos that Contain music on sites like YouTube.  Again, folks don't think about the music as property... They just assume its OK to use it.

I want to take a moment to thank Mr. Firemark for answering my questions, and for having a podcast in the first place! It’s been educational and lifesaving for my Advanced Entertainment Law class. Looking forward to hearing your podcast in future occasions.

Thank you so much for your help Mr. Firemark!

You're welcome.  Feel free to hit me with follow-up questions.

If you had or have any questions that you couldn’t find the answer to in this blog post and would like more information, feel free to write Mr. Firemark through this link.

Three Cases

Case #1 Heptagon v. Core v. HGTV

The first case involves HGTV, their show Selling New York, and a private “design Company that specializes in high-end furniture”. Said company has failed to show that “virtual furniture displayed on HGTV’s Selling New York constitutes copyright infringement, trade dress infringement and unfair competition. This show “features real estate brokers selling apartments to New York’s rich. And on January 13, 2011, HGTV aired an episode entitled “The Big Buy In” where real estate brokerage core Group sought to sell a condo at 240 Park Ave South for nearly $6 million and in the episode Core’s CEO discusses the fact that the property is less appealing because it is unfurnished.”

Core contacted Heptagon, a high-end furniture maker, Heptagon agreed to help out by providing photographs of the furniture chosen to show the condo, but the two companies couldn’t come to a final agreement since Core refused to purchase an insurance policy for possible use of the real furniture. He instead took the images, and created a virtual, fully furnished replica of the apartment to show interested buyers.

Core got exactly what he wanted: the buyer bought the property for almost the full asking price.

Heptagon then sued, and New York federal judge Laura Swain noted, “the Copyright Act protects “pictorial, graphic, and sculptural works,” but explicitly limits the protection of utilitarian or “useful” articles.

The article proceeds to ask us: “Does virtual furniture shown on TV qualify? How worried do those with commercial enterprises have to be about displaying design works of originality like furniture, clothing and jewelry?”

My answer is that it should. All of the things mentioned before are part of someone who created them. Therefore someone in specific made it in unique circumstances, whether it’s art, an article, a photo or a virtual representation of the photos that were discussed at the meetings between Core and Heptagon. Heptagon should’ve gotten the judges favor.

 

Case #2

In Jail for Piracy

As we all know piracy in America is the only reason why the film making business is staggering at the moment. As a consequence of choosing to be a pirate a woman was sentenced to 22 months in prison for operating a pirated video website.

“Hana Amal Beshara, 30, is a New Jersey resident and a founder of NinjaVideo.net, who was also sentenced to two years of supervised release, 500 hours of community service and is being forced to repay more than $200,000 in profits.”

The only thing I can say about this case is that, sadly she’s not the only one operating this websites. And for the government to actually catch all of the people who are engaging in this type of behavior, and continually costing the filmmaking industry millions upon millions of dollars is going to take a long time. She certainly won’t be the last one they take down. 

Case #3

Is the term "transformer" a trademark for Hasbro?

Now, in this case a computer manufacturer argues that its tablet/laptop hybrid should be able to describe itself as a “transformer”.  We know that in 1984, Hasbro introduced the public a line of alien toy robots named the “Transformers”.

In this case what’s being discussed is if the term in question even considered by the judicial system and the rest of the public as a trademark. Because ultimately, the audience is who tells the big companies when a word is considered as part of something, when that word is not just a word, but it comes already with the thought in the people’s mind.

While I understand the company’s situation, I have to side with Hasbro on this one. People know that word to well, and even more now that there are three movies with the same name and all three have been massively successful. So, yes, in the case that the maker of this hybrid tablet/laptop has used a name that is already being identified with something else, I believe that there is infringement on the part of the technology company.