Litwin Law Group, PLLC http://litwinlawdallas.com Estates, Appellate, Entertainment and Business Thu, 15 Jan 2015 18:56:10 +0000 en-US hourly 1 https://wordpress.org/?v=5.4.2 Money Can’t Buy You an Oscar http://litwinlawdallas.com/2015/01/ben-hur-live-to-fight-another-day/ http://litwinlawdallas.com/2015/01/ben-hur-live-to-fight-another-day/#respond Thu, 15 Jan 2015 18:08:19 +0000 http://litwinlawdallas.com/?p=6452
Money can buy a lot of things.  It may even be able to buy you love, but it certainly can’t buy you an Oscar.
Robert Surtees won three Oscars for cinematography – for “King Solomon’s Mines” (1950), “The Bad and the Beautiful” (1953) and “Ben-Hur” (1959).  His Oscar for “The Bad and the Beautiful” has recently been tarnished by becoming the subject of litigation involving Mr. Surtees’ heir.
Upon Robert Surtees death in 1985, his son, Bruce Surtees, inherited the Oscar.  His son died in 2012, whereby Bruce’s wife, Carol Surtees, subsequently inherited the Oscar.  She then attempted to sell it on eBay for $40,500.  As a member of the Academy, Robert Surtees was bound by the Academy’s Bylaws which state:
In consideration for your delivering said replica to me, I agree to comply with your rules and regulations respecting its use and not to sell or otherwise dispose of it, nor permit it to be sold or disposed of by operation of law, without first offering to sell it to you for the sum of $10.00 . . . This agreement shall be binding not only on me, but also on my heirs, legatees, executors, administrators, estate successors and assigns.  My legatees and heirs shall have the right to acquire said replica, if it becomes part of my estate, subject to this agreement.”
One would think the Academy would value its prizes at more than $10.   The Academy sued Carol Surtees and any of her accomplices in a complaint filed December 15, 2014.  Stay tuned for the result.
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Marriage Equality May Extend to Copyright http://litwinlawdallas.com/2015/01/marriage-equality-extends-to-copyright/ http://litwinlawdallas.com/2015/01/marriage-equality-extends-to-copyright/#respond Wed, 14 Jan 2015 16:24:58 +0000 http://litwinlawdallas.com/?p=6458 The U.S. Supreme Court and lower courts throughout the county have extended same-sex couples the right to marry in many states. When the U.S. Supreme Court struck down part of the Defense of Marriage Act in the Windsor decision, the Obama Administration began providing most federal spousal benefits to all same-sex married couples, regardless of where they live.  However, the Copyright Office, the Social Security Administration, and the Department of Veterans Affairs do not recognize same-sex marriage in states that do not recognize gay marriage.

The current Copyright Act grants rights to widows and widowers only if the marriage is recognized in the owner’s state of residence at the time of death. Therefore, if an artist marries a same-sex partner in California, but dies as a resident of a state that does not recognize same-sex marriage, his partner does not qualify as a widower under the Copyright Act.  In this type of example, the artist’s widower cannot be legally entitled to the artist’s creative rights through the Copyright Act’s survival provisions.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) introduced  The Copyright and Marriage Equality Act to close this discriminatory loophole. Rep. Derek Kilmer (D-Wash.) sponsored similar legislation in the House.  It has attracted 32 co-sponsors, including two Republicans.   “It will ensure that the rights attached to the works of our nation’s gay and lesbian authors, musicians, painters, sculptors and other creators pass to their spouses the way they now do for heterosexual creators,” Senator Leahy explained in a piece in the The Hollywood Reporter.

Specifically, the Bill would amend the Copyright Act by changing the definition of “widow” or “widower” such that surviving spouses would receive rights even when a death occurs in states that do not recognize gay marriage.  The bill would consider a person a widow or widower so long as courts in the state where the couple married would find the surviving spouse validly married to the author of the work when he or she died.  Therefore, even if the individual never lived in a state that recognized gay marriage, the widow or widower would be entitled to rights under the federal Copyright Act.

Therefore, the Copyright Act may change in the future, if this bill can gather enough Republican support to become law.




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Former NFL Players v. Madden NFL http://litwinlawdallas.com/2015/01/former-nfl-players-v-madden-nfl/ http://litwinlawdallas.com/2015/01/former-nfl-players-v-madden-nfl/#respond Tue, 13 Jan 2015 15:25:55 +0000 http://litwinlawdallas.com/?p=6443

The U.S. Ninth Circuit Court of Appeals in California rejected EA’s motion to strike former NFL players’ right of publicity claims for EA’s failure to license their likeness for Madden NFL. EA licensed the rights for current players but did not do so for former players. They also did not mention the players by name but used their team, year of play, skin color, height, weight and position. The Players include Vince Ferragamo, Michael Davis, Samuel Michael Keller and Billy Joe Dupree. EA attempted to have the claims struck based on several defenses under the First Amendment’s right to free speech. All of these claims were rejected. You can read the entire decision HERE.

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Litwin Law Group Launches New Website! http://litwinlawdallas.com/2014/11/litwin-law-group-announces-new-website-2/ http://litwinlawdallas.com/2014/11/litwin-law-group-announces-new-website-2/#respond Tue, 04 Nov 2014 05:40:32 +0000 http://litwinlawdallas.com/?p=6155 Litwin Law Group, PLLC is proud to have launched our new website!

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Could Garcia v. Google Establish a Copyright Interest in an Actor’s Performance? http://litwinlawdallas.com/2014/10/could-garcia-v-google-establish-a-copyright-interest-in-an-actors-performance/ http://litwinlawdallas.com/2014/10/could-garcia-v-google-establish-a-copyright-interest-in-an-actors-performance/#respond Fri, 24 Oct 2014 20:09:06 +0000 http://litwinlawdallas.com/?p=6098 There may be a limit to the saying, “There’s no such thing as bad publicity.” Cindy Lee Garcia believed she was acting in a low-budget film entitled “Desert Warrior,” which was written and produced by Mark Basseley Youssef. To her surprise, her performance was dubbed over and used in an anti-Islamic film entitled “Innocence of Muslims” that was posted on YouTube and resulted in her receiving death threats. Garcia attempted to remove the film from YouTube by filing take-down notices under the Digital Millennium Copyright Act. When Google refused to respond to her notices, Garcia filed a copyright infringement action and a motion for a temporary restraining order in a U.S. District Court in California. The district court denied Garcia’s motion for a temporary restraining order, in part because she failed to demonstrate that she was likely to succeed in her copyright infringement suit. Garcia appealed the decision to the Ninth Circuit.

To prove that she was likely to succeed in her copyright infringement suit, Garcia had to prove that her acting was an original work of authorship fixed in a tangible medium of expression and thus, an independent, protected interest under the Copyright Act. Once established, she must also prove that Youssef did not own any such interest due to her performance being a “work-for-hire” and did not have an implied license to use her performance. Relying upon acting manuals and treatises, the majority of the Ninth Circuit held that an actor’s creativity expressed through his voice, image, body language, facial expression and reaction to other actors, when fixed, is copyrightable. The court further reasoned that without a written agreement stating that an actor’s performance in a small role is a work-for-hire, an actor does not qualify as a traditional employee and thus, retains rights to his performance. The court went on to explain that although an actor grants the copyright owner of the film a broad implied license upon agreeing to act in the film, that implied license is not broad enough to include a use of an actor’s performance that is radically different from anything the actor could have imagined when he was cast in the film.

Therefore, on February 26, the majority of the Ninth Circuit signed a controversial opinion holding that Garcia was likely to succeed in her copyright infringement suit. Judge Smith wrote a dissenting opinion to the contrary stating that (a) acting is a procedure or process by which an original work is performed, which the Copyright Act specifically states is not a “work;” (b) Garcia was not the author of the work because she had no creative control over the script or her performance; and (c) acting out a script is akin to singing lyrics to a song, which precedent establishes is not “fixed.” The dissent went on to argue that even if an acting performance were capable of being protected under the Copyright Act, Garcia was an employee and her performance was a work for hire because Youssef managed all aspects of the production. On March 6, 2014, the Copyright Office essentially agreed with Judge Smith’s dissent when it issued a letter rejecting Garcia’s copyright application, explaining that the U.S. Copyright Office “views dramatic performances in motion pictures to be only part of the integrated work— the motion picture.” Since then, Google filed a petition for rehearing and ten amicus briefs have been filed in this case. The court’s decision could have a dramatic effect on filmmakers and actors and make the use of written work-for-hire agreements even more essential.

This article was written by Adam Litwin, managing member of Litwin Law Group, PLLC, a Plano-based law firm, focusing on entertainment, business and estates, with attorneys licensed in both Texas and Florida.  It was published in Issue No. 9 of the TESLAW E-Newsletter, May 15, 2014 distributed by the Entertainment and Sports Law Section of the State Bar of Texas.

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Does Murder-Suicide Trigger the Simultaneous Death Act? http://litwinlawdallas.com/2014/10/does-murder-suicide-trigger-the-simultaneous-death-act/ http://litwinlawdallas.com/2014/10/does-murder-suicide-trigger-the-simultaneous-death-act/#respond Fri, 24 Oct 2014 20:08:39 +0000 http://litwinlawdallas.com/?p=6096 It is sad and unfortunate for all involved when people feel so desperate and hopeless that they resort to violence.  As has been verified repeatedly, violence only causes more problems.  Venice Beard shot and killed his wife, Melba, and then himself.  His wife died immediately, but Venice died approximately two hours later at the hospital.  Venice and Melba had similar wills, both providing for a certain disposition of a tract of land if each respective spouse did not survive the other by more than ninety days.  The wills also provided for specific cash bequests to nine named individuals if the two died in a “common disaster” or under circumstances making it impossible to determine who died first.  The independent executors of both estates sought a declaration as to whether the couple died in a “common disaster” and whether the Simultaneous Death Act contained in Sections 121.001 through 153 of the Texas Estates Code should be applied when interpreting their wills.

The Tyler Court of Appeals explained that being shot in the same episode qualifies as a “common disaster” even though they died at different times and in different locations.  The court explained that the language conditioning the cash bequests upon dying in a “common disaster” indicates that the two intended to avoid a bequest going to one of them if they died nearly simultaneously, which is the same intent as the statute.  If they did not intend for the statute to apply, they could have used the same ninety-day language used elsewhere in the wills.  In contrast, the court reasoned that the bequests of the tract of land, which take effect if each respective spouse did not survive the other by more than ninety days, indicate intent to deviate from the Simultaneous Death Act, which only takes effect after 120 days.

Therefore, the court reasoned that the Simultaneous Death Act should be applied when interpreting their wills, but only after effectuating the dispositions that are to take effect if a spouse did not survive by more than ninety days.  This means that will-drafting attorneys should take care when choosing the length of time in survival clauses and be sure to remain consistent with the statute or other language in the will if they want their provisions to be consistent with such standards.

To find out more about murder-suicide in the United States, read the fourth edition of American Roulette:  Murder Suicide in the United States by the Violence Policy Center.

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Texas Provides Money to Help Film Production http://litwinlawdallas.com/2014/10/texas-provides-money-to-help-film-production/ http://litwinlawdallas.com/2014/10/texas-provides-money-to-help-film-production/#respond Fri, 24 Oct 2014 20:08:11 +0000 http://litwinlawdallas.com/?p=6094 Promoting an active film industry is a great avenue to spur a region’s economic development.   Austin is known for its independent films and Houston’s WorldFest is one of the three original international film festivals in North America.  However, the film industry in Texas still has room to grow.  The Texas Moving Image Industry Incentive Program was implemented to increase employment opportunities for Texas industry professionals, tourism and economic activity in Texas cities and the overall Texas economy.

Historically, Texas has been at a major disadvantage when it comes to providing monetary incentives to attract film producers because there are no state taxes from which the state can create a tax incentive plan.   The great State of Texas did not let that stop them.  Instead of tax incentives like those in Louisiana and New Mexico, Texas provides cash grants to qualifying projects based on the amount of money spent within the state.  The State of Texas has set aside $95 million for the Texas Moving Image Industry Incentive Program over the next two years.


So how does this work?  Under Texas Administrative Code, Title 13, Part 8, Chapter 121, in order for a film production to qualify for Texas incentives, it must meet the following criteria:

  •   $250,000 in Texas spending.
  •   60% of shooting days completed in Texas.
  •   70% of paid crew must be Texas residents.
  •   70% of paid cast (including extras) must be Texas residents.

Once these qualifications are met, you have the option of receiving a refund on 8%-25% of the money spent on wages or 5%-15% on the total money spent (percentages vary based on amount spent.)  In addition, if you shoot in “underutilized areas” in Austin or Dallas, you can receive even more of a refund.

If you are interested in utilizing the incentive program, you should carefully read what qualifies as eligible and ineligible expenditures provided on the Texas Film Commission‘s website.

  •   An application package must be submitted online;
  •   An itemized budget detailing only estimated Texas expenditures must be submitted via email; and
  •   A complete script must be submitted by email.


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This article was written by Adam Litwin.  He is an actor, writer, producer and attorney with Litwin Law Group, PLLC, which is a general practice law firm that focuses on entertainment law in Dallas, Texas.   

 

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A Legacy of Love: An Introduction to Estate Planning http://litwinlawdallas.com/2014/10/a-legacy-of-love-an-introduction-to-estate-planning/ http://litwinlawdallas.com/2014/10/a-legacy-of-love-an-introduction-to-estate-planning/#respond Fri, 24 Oct 2014 20:07:38 +0000 http://litwinlawdallas.com/?p=6092 The Opportunity to Choose Love

Many put off creating an estate plan until it is too late — when death or incapacity is imminent. At this time, there is insufficient energy or time to fully consider all the ramifications of your estate plan.  An estate plan at this point is more like triage in the middle of battle – it likely won’t accomplish all you desire.

A well-thought-out estate plan, on the other hand, is a way to demonstrate your love and appreciation for family, friends and community after your transition from this life or during a period of incapacitation. It is a collection of living documents that change along with the circumstances in your life, such as when you or someone in your family has a baby.   The ultimate outcome of a thoughtfully considered estate plan is leaving a legacy of love.

This is achieved by starting with the end in mind.  What kind of legacy do you want to leave? Do you want to leave a portion of your estate to charity?  Do you want to provide for your children by giving them reliable monthly payments that will help support them, while still encouraging independence and preventing the potential for one to squander an inheritance?  Do you want to designate who will take care of your children if you are unable to do so yourself?  Do want to include a letter explaining your goals?

The Nuts & Bolts of an Estate Plan

All estate plans in Texas will consist of the following:

a will (or living trust),

durable power of attorney,

medical power of attorney (and HIPPA release) and

directive to physicians.

A will is a document that allows you to choose who will receive your real and personal property after your transition.  Without a will, the state of Texas has a statute that decides who will receive your property, regardless of what you may have told your family was your intention. Your spouse, children or other family members will have to go through a legal proceeding in court before they will have the authority to resolve issues with your property or transfer property to family.  In addition to being a hassle and a potentially long process, this can be quite costly.

The durable power of attorney gives a trusted person in your life the authority to handle your financial affairs if you are unable to do so yourself during your life. Without this document, selling your assets to pay for medical expenses may be very difficult.

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> The medical power of attorney entrusts a close friend or family member with the responsibility of making medical decisions for you if you are unable to do so.  The HIPPA release is necessary to allow the person with medical power of attorney to have access to your medical information so they can make informed decisions about your health.  Without a HIPPA release, all of your medical information is kept confidential.

>

> The directive to physicians allows you to make decisions about your health ahead of time.  You can choose whether you would want to be kept on life support and whether you want pain medications.  These lifestyle choices are known ahead of time and relieve loved ones of the burden of making difficult decisions.

 Some Need an Estate Plan More Than Others

Your estate plan is an opportunity to take control of your life and effectively convey your wishes.  An estate plan is important for everyone, but it is especially important for individuals with children, same-sex couples and unmarried individuals without children.

Individuals with children find wills important because the will determines who will take care of your children if you transition while they are a minor and will allow you to designate certain assets to provide for your children in the case of such an event.

Same-sex couples need a will because same-sex couples are not contemplated as part of the state’s default method of dividing one’s estate or in determining who will be able to care for one’s remains.  Also, the completion of other documents we discussed above is crucial for allowing a same sex partner to make medical decisions.  Without an estate plan, one may be left powerless to help and care for one’s life partner.

Unmarried individuals without children should draft a will because the state’s default method of dividing one’s estate in this case may result in your assets being conveyed to your siblings, parents, distant relatives, or maybe even to the state itself.

 Action is Easier Than Expected

Many put off creating an estate plan until it is too late because it is one of those projects that seems too large to approach.  In actuality, all that is needed when speaking with most estate attorneys is the following:

  • List of real estate, stocks, bonds, cars and other large assets your own
  • Any existing will
  • Contact information for trust individuals you may want to be your medical or durable power of attorney.

Everything else in your head!  Let your attorney do all the heavy lifting.

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This article was written by Ronda M. Litwin.  She is an attorney at Litwin Law Group, PLLC, which is a general practice law firm focusing on estate planning, entertainment law, family law and civil  appeals.


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5 Key Points in Talent Agent Contracts http://litwinlawdallas.com/2014/10/5-key-points-in-talent-agent-contracts/ http://litwinlawdallas.com/2014/10/5-key-points-in-talent-agent-contracts/#respond Fri, 24 Oct 2014 20:06:55 +0000 http://litwinlawdallas.com/?p=6090 Congratulations!! You’ve found an agent that is willing to represent you.  Now, the question is whether you want them to represent you.   Even though you are probably brimming with excitement,  now is the time to step back and be mindful.  Entering an agency agreement with the wrong talent agent can stifle your career.  So, here are 5 things to consider:

  1. Termination:  Read the contract to determine who can terminate the contract and when.  If i does not tell you how to terminate the contract, it will be more inconvenient to get out of the contract and you may have to hire an attorney.  
  2. Length of Term:  If an agent is trying to lock you into a contract for 3-5 years, you want to make sure you know the agent is reputable and capable of finding you work because 3-5 years is too long to put your career on hold.
  3. Fees:  You should never have to pay up-front fees or be forced to use a particular photographer for headshots.   Agents should only get paid when they find you work.  Talent agents will often receive certain commissions for a period of time after the contract is terminated.  You want to ensure that the talent agent will only continue to receive such commissions as appropriate and for a reasonable amount of time.
  4. Geography:  Do you want to have separate agents in California, New York and Texas?  Or, do you want one agent that can represent you in all markets?  These are questions to ask yourself at the time of entering into an agreement with an agent.  An overly broad inclusion of geography in your agreement may result in only receiving work in one geographic area without the ability to find another agent in another major market.  So find out how often this agent may submit you for work in these other areas that are covered before preventing yourself from being able to use other agents there.
  5. Scope of Representation:  If you are a multi-talented actor/model/writer, make sure you and your agent are clear about what kind of jobs your agent is trying to find for you.  An overly broad scope may prevent you from seeking separate representation.  If you wish to exclude any works from the contract, get it in writing.  NEVER rely upon an oral understanding.

Negotiating your first contract may seem intimidating.  However, your potential agent should not make you feel bullied into entering a contract with which you are uncomfortable.   If you are unsure how to negotiate a contract, you should contact an entertainment attorney.  Seeking representation up front to help you clearly define and understand the Artist/Agent relationship may save you a lot of time and hassle later on.

Ronda M. Litwin

Litwin Law Group, PLLC

www.LitwinLawDallas.com.

Disclaimer: While every effort has been made to ensure the accuracy of this information, it is not intended to provide legal advice as individual situations will differ and should be discussed with an attorney. For specific legal advice on the information provided and related topics, please contact the author.

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