Monday, 23 July 2012

Cease and Desist!!!

In our modern, webbed-out world, it can be hard to tell what is public domain and what isn't. I can download a TV series to my computer, but I can't use those images for commercial use. I can copy and paste images of celebrities found on the internet and use them as my profile picture, but I can't without written authorization use those likenesses in the publication of a book or as projected images in a play. I can download a free app which allows me to transform Youtube Videos into MP3's so that I can take the sound from anything on Youtube and use it how I wish. So if someone has published a video of a song you want, you can save yourself the $0.99 iTunes charges. It's piracy, but who's going to know...

Below is an article from the New York Times regarding a play based loosely on "Three's Company" which received a Cease and Desist order.
If Three Constitutes Company, Add Lawyers to Make It a Crowd
Published: July 17, 2012, New York Times

"Most playwrights have jitters on opening night, but David Adjmi was in a panic amid the festivities last month for “3C,” his darkly comic deconstruction of the 1970s sitcom “Three’s Company.” That same day he learned that the copyright owner of “Three’s Company” had sent a cease-and-desist letter to the play’s producers charging that Mr. Adjmi had infringed on the copyright by borrowing so many elements from the TV series, including its premise about a man who pretends to be gay to live with two female roommates.

The show went on — but the copyright fight remains far from resolved.
At issue is whether “3C” is enough of a parody of “Three’s Company” to be protected under First Amendment exceptions to copyright law — specifically, under the legal doctrine of fair use, which allows artists to use copyrighted work to lampoon or critique the material, as the international hit “Forbidden Broadway” has done for years with its sendups of famous musicals.
But another issue is personal, at least in this case: The ability of a financially strapped, largely unknown playwright to fight legal threats.
Fearing the potential legal bills, Mr. Adjmi, 38, said that he initially agreed — in an e-mail sent through his agents — to the demands of the “Three’s Company” owners that he turn down any future productions of “3C” or any publication or circulation of the script, in effect allowing his play to die after its Off Broadway run at Rattlestick Playwrights Theater, which ended on Saturday.
The production received mixed reviews, but whether critics liked or hated it, they all picked up on the allusions to the “Three’s Company” characters, who were given new psychological and sexual layers.
Mr. Adjmi said that after six sleepless nights he decided to give in, agreeing to the terms from the copyright owner, DLT Entertainment, that the New York production would not be extended and there would be no others. Like many full-time playwrights, Mr. Adjmi lives mostly on theater commissions and grants — for him, totaling $25,000 to $50,000 a year — in addition to royalties from productions of his work, which include the recent Off Broadway plays “Stunning” and “Elective Affinities.” He estimated that he earned from nothing to $25,000 in royalties annually, and that he made about $2,500 from the run of “3C,” which played the typical five-week run at the Rattlestick.
“I can’t afford a fancy lawyer,” Mr. Adjmi said, “and I was getting all sorts of conflicting advice from my agents at CAA and my producers, some of whom doubted that the play would meet the legal standards of parody.” (The producers declined to comment, citing advice from their lawyers.)
Mr. Adjmi has not signed any document, however, and now fellow playwrights are urging him to fight. The Pulitzer Prize finalist Jon Robin Baitz (“Other Desert Cities”), upon learning of Mr. Adjmi’s situation recently, has urged him to work with the Dramatists Guild, a trade association for writers. Mr. Baitz is also gathering signatures from theater artists for an open letter supporting Mr. Adjmi. Such publicity could attract a lawyer to Mr. Adjmi’s case on a pro bono basis, Mr. Baitz said.
“The fact that the lawyers for the long-gone show ‘Three’s Company’ have nothing better to do, aside from billing legal hours like truffle pigs, than attempt to bully an Off Broadway playwright of modest means is an affront of the most base kind,” Mr. Baitz said.
The sort of artistic appropriation in “3C” is ubiquitous today, with musicians sampling melodies, artists doing collages that draw on existing photos, and theater and film writers making use of characters created in earlier works, though the legal situation in this area remains murky. Cartoons and television shows have been frequent stage fodder; in the play “Dog Sees God,” inspired by the Peanuts comic strip, the playwright Bert V. Royal sought to avoid copyright problems by turning the familiar characters into teenagers and changing their names (Charlie Brown became C. B.), while Anne Washburn’s new play, “Mr. Burns,” references characters and moments from “The Simpsons” in an examination of nostalgia for pop culture.
Mr. Adjmi said his intent was to write “a deep critique of the ideologies and assumptions behind the television series, leading to a collective nervous breakdown for the characters.”
But “3C” is no laughing matter for the “Three’s Company” camp. Donald Taffner Jr., president of DLT Entertainment, said the company was “very protective of the overall brand” because the show continued to earn substantial revenues from syndication on TV Land and on home video. Mr. Taffner said that “3C” used at least 17 elements from the television series; the list, which was included in the June cease-and-desist letter, mostly involves overlaps in character and plot outlines. For example, one of the female roommates (Chrissy on TV, Connie in “3C”) is blonde, sexy and the daughter of a minister.
“We’re up for renewal soon with TV Land, and we’re playing around with the idea of doing a theatrical version of ‘Three’s Company’ ourselves, so we don’t want anything out there that might cause harm,” said Mr. Taffner, the son of one of the original “Three’s Company” producers. “And we think ‘3C’ borrows far too many elements to make a fair-use parody argument.”
Alex V. Chachkes, an intellectual property lawyer at the Orrick firm who has worked on fair-use cases in the theater, said he believed Mr. Adjmi had a good case for parody, although he noted that he had not seen the play.
“If Adjmi was taking an episode of ‘Three’s Company’ and selling it for commercial use, he’d be in trouble,” Mr. Chachkes said. “But if he was putting ‘Three’s Company’ to use in a really transformative way, which audiences would not confuse with a TV episode, he has a stronger case to make.”
The idea of spending emotional energy, and possibly his savings, in a legal battle seemed depressing to Mr. Adjmi, but he said he was now considering his options.
“I never saw ‘3C’ as a big commercial play that would make me a lot of money,” he said, “but it is a play that I’m proud of, and the thought of it disappearing makes me sick.”"

Now, you may be thinking, "Well of course this guy got caught, his play was being produced in New York" but let me assure you in this day and age, no matter how large or small a town or theatre you are producing work in is, you can't hide from a Google search.

Over ten years ago, I was hired by an independent theatre company to direct a staged version of a fairly well known movie. The first question I asked was, "Do you have the rights to do this?" I was assured that there was an agreement in place with the screenwriter and director of the film and that this small theatre company in Calgary had access and rights to produce a stage version of this high profile  Hollywood Film. I was even told that those rights cost us no money. This lead me to ask the question again and again I was met with the response that this company had been granted the rights. I asked if the rights agreement allowed for adaptation of the material so that we could make it more stageable. They said yes and I was handed a published version of the screenplay which they bought at Chapters. So I set down to adapt the text (it didn't require much in the way of adapting it for the stage as there was really only one location, hence making it very stage worthy) and created an adaptation, which I put my name on as adapter. All of our media releases and press stated the "Title of the movie" by "screenwriter" adapted by Trevor Rueger. Opening night of the show, I overhear one of the producers in discussion with an audience member who had asked "How did you get the rights to this?" to overhear the producer state that "They got permission 3 years ago to do a reading of the script in a university class where they were charging no money. I assume that agreement still stands." I waited until after the opening night performance and during the small party, pulled the producer aside and said "So explain to me the rights agreement we have?". It was at this point I had all the information...too late in the game as my name was on the script as the adaptor and reviews were about to go out online. If the writer's people found out about it, I was on the hook...they would be coming after me. No one has, but I still get emails to this day from producers interested in reading my adaptation, many of whom ask if I have the rights or how to get the rights. An elephant and the internet never forget. Ten years later this can still be found on the internet

Now you may be thinking "Well of course you could have been caught, you were adapting one of the biggest films of the 90's". I turn you to another example. In 2008, Trepan Theatre in Calgary began work on a devised creation called "La Mexicaine de Perforation"about a secret society that exists in the catacombs of Paris. Shortly after they began to publicize the show via the internet and Calgary media, they received a cease and desist letter from the lawyer of this secret organization. Trepan Theatre consulted with their own lawyer who advised them that as the show was a parody of the secret organization, they weren't doing anything illegal. The project was produced, and the show started with the producers stepping on stage to recite a disclaimer explaining the legal situation, which not only made fun of the situation, but provided them with a legal leg to stand on should further action be taken. So what did they learn? They learned that even a secret society that not many people outside of Paris have ever heard of, had a lawyer and someone scanning the internet.

Have you ever seen those TV commercials where a famous hockey player comes out in a uniform, only it's not his team uniform, it's a uniform that has no logo on it and isn't even the right colours of the team he plays for? Do you know why this is? Because the NHL owns those logos and demands a large sum payment for use of those in commercials. If another company is going to use our image to make money, we are going to get paid for it. And this should be your general rule of thumb...if I am making money through the use of someone else's property, I'm probably in violation of copyright, no matter where I got the property from. This pertains to music as well. Have you ever seen a sitcom where there's a birthday party going on and someone brings in a cake festooned with candles and no one sings "Happy Birthday"? Have you ever thought that was weird? It's not if you understand that someone actually owns the rights to the song "Happy Birthday" and that it costs money to get the rights to use it in a commercial situation.

So do due diligence. Make the necessary investigations. Don't assume someone doesn't in someway own what you want to use. Most of the time an agreement can be struck with the only demand being adequate notice in the program regarding copyright.  So the moral of the story is "Let's be careful out there." (from Hill Street Blues. Creator Steven Bochco/Michael Kozoll. Produced by MTM Enterprises and 20th Century Fox Television.)

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