Entertainment & Intellectual Property Law

Stacey Davis

Third-Party Content On Your Website: Best Practices

Posting Third-Party Content:

Copyright owners have certain exclusive rights, including the right to copy, display, publish and perform their works.  A copyright in a work exists as soon as it is put in fixed, tangible form.  Many mistakenly believe that if there is no copyright notice on a work then it is unprotected or if you give credit to the author of the work, you are in the clear.  Wrong.

Strong penalties exist for wrongful copying, otherwise known as copyright infringement.  If proven, a copyright owner could be entitled to actual or statutory damages for the unlawful copying.  Many plaintiffs choose statutory damages because the burden of proof is lower.  Statutory damages can range from $750 to $30,000 per infringing activity, or $150,000 if the infringement is found to be willful.

When posting content belonging to a third-party, employ the following best practices:

  • Assume the third-party content is protected.   All text, artwork, photos, songs are protected under either copyright laws or trademark laws.  Unless you have evidence that a work is not protected, assume that it is.
  • Do not rely on “fair use.”  Fair use is a limited defense in a copyright infringement action.  If you are relying on fair use, you have already been sued.
  • Obtain permission before reposting content to your website.
  • Remove unauthorized material from your site immediately.  Even if you believe you have the right to post the material, take it down while you investigate.

Linking to Third-Party Website:

There are many benefits to linking to a third-party’s website content.   The added content can enhance the usability and usefulness of a website.  You must also be careful because linking can inadvertently infringe existing trademarks or copyrights if the information contained in the link is being duplicated or “framed” by the material behind it.  Framing occurs when you divide a website into separate framed regions and post third-party content into a “frame” on your site.  Some courts have found framing to constitute copyright infringement.

Below are some helpful tips to keep in mind when linking to third-party content.

  • Review the website’s terms and conditions policy to ensure links are permitted or determine if consent is needed.
  • Ensure that your link simply transports a visitor to the website and does not duplicate the information contained in the link.
  • Disclaim liability for linked content in your terms and conditions policy.  You can also include separate screens or pop-ups to advise visitors that they are leaving your website and entering a linked site.  Include a note for the visitor that you have no control over the linked site’s content.

For more information or for assistance in drafting website terms and conditions policies, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com

Will Tarantino Be Able To Prove Copyright Infringement Against Gawker? The 411 on Copyright Infringement

In January 2014, Quentin Tarantino filed a contributory copyright infringement claim against Gawker.com for linking to his (as of yet) unproduced script, THE HATEFUL EIGHT.  Tarantino alleged that by making the link available to the script, Gawker was contributing to the infringement of his copyrighted work.

On April 22, 2014, a federal court dismissed Tarantino’s complaint holding that he had failed to establish that Gawker’s actions constituted copyright infringement. U.S. District Court Judge John F. Walter held that Tarantino failed to allege that anyone had seen the script because of the Gawker article.  Judge Walter noted, “Nowhere in these paragraphs or anywhere else in the Complaint does Plaintiff allege a single act of direct infringement committed by any member of the general public that would support Plaintiff’s claim for contributory infringement. Instead, Plaintiff merely speculates that some direct infringement must have taken place.”

On May 1, Tarantino amended his complaint to allege that “Gawker engaged in direct copyright infringement by their unauthorized download of a PDF copy of the leaked unreleased complete screenplay for Quentin Tarantino’s motion picture The Hateful Eight.”

Tarantino, like every copyright holder, is entitled to certain exclusive rights in his protected work.  These rights include the right to reproduce, distribute, display or perform the work, or to make derivative works.  Copyright infringement occurs when a third-party exercises one of these rights without permission from the copyright owner.  Contributory liability, based on a claim of secondary rather than direct liability, arises when a party knowingly and materially contributes to or is responsible for another party’s infringing acts. The most common form of direct copyright infringement occurs when a third-party improperly reproduces or copies a protected work.

To establish a claim of copyright infringement for improper copying, one must prove ownership of the work and unauthorized copying of the work or elements of the work.  As to the first element, a copyright registration certificate from the United States Copyright Office serves as prima facie evidence of ownership.   A plaintiff can establish the second element, improper copying, through direct or indirect evidence.  Examples of direct evidence of copying include a defendant’s admission or witness testimony of copying.  More likely, copying will be proved through indirect evidence by showing that the defendant had access to the work and that the works are substantially similar.

There are a number of defenses available in a copyright infringement action:

(1) Fair use – Allows for the limited use of copyrighted material without the copyright owner’s permission. Examples of fair use include research, commentary, criticism, news and parody.

(2) Copyright Invalidity – Argues the underlying work is not original or that it lacks copyrightable material.  Similarly, a defendant could argue that the plaintiff is not the owner of the copyright or that the work is now in the public domain.

(3) Consent – Arises when there is an express or implied grant of consent to use the protected material.

(4) Independent creation – Although a third-party’s independent creation is an absolute defense to copyright infringement, it is often difficult to prove.

(5) Statute of limitations – The statute of limitations for civil infringement is three years and five years for criminal infringement.  A majority of circuit courts apply the “discovery rule” to determine when the limitations period begins to accrue.  Under the discovery rule, the deadline to bring an infringement action accrues from the date that the plaintiff knew or should have known about the infringing activity.  A minority of circuits apply the “injury rule”, whereby the deadline begins to run from the date injurious conduct first began.

If able to establish copyright infringement, actual or statutory damages are available.  Statutory damages range from $750 – $30,000 per infringing work (left to the Court’s discretion).  If the infringement is willful, a court can assess statutory damages of $150,000 per infringing work.  In addition, attorney’s fees are available to the prevailing party.

Stay tuned for updating information as Tarantino and Gawker make their way through the legal system.

For more information on copyright infringement, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com

Social Media Policies: Best Practices for Protecting Your Company’s Brand

When a social networker identifies himself as an employee of an organization, he becomes a representative of the company.  From then on, the employee’s social media posts reflect on the company and the company’s public image.  An employee enjoys the right to free speech, but not the right to defame or slander his employer, post confidential or proprietary information, or violate the right of privacy of others.  A social media policy is designed to protect an organization against these and other risks.  A well-crafted policy should help the organization achieve its marketing strategy, but also protect against lawsuits, reputational harm and security or confidentiality breaches.


Here are some tips to keep in mind when developing a company’s social media policy.

DON’T be overly broad in the policy restraints.  Instead, tailor the social media policy to specific work hours, employer-provided equipment and work-related content.

DO prohibit comments that are vulgar, obscene and harassing.  Employers should prohibit comments about co-workers or supervisors that are vulgar, obscene, threatening, intimidating, harassing or a violation of the employer’s workplace policies against discrimination and harassment.  Remember, an employer cannot simply protect against “negative” comments, the language must be limited to comments deemed obscene or harassing.

A social media policy can violate the National Labor Relations Act (NLRA) where it is so ambiguous that an employee could reasonably construe it to prohibit activity protected by the NLRA.  Protected activity includes discussing the terms and conditions of employment, such as wages, with co-workers, while prohibited activities include remarks that disparage the employer or its products or recklessly false accusations.

DO require employees to include a disclaimer when expressing their views on social networking sites, such as “The views expressed on this post are mine and do not necessarily reflect the views of [Employer].”

DO prohibit disclosure of Employer’s proprietary or confidential information.  Companies must take care to ensure employees do not post unauthorized statements, endorsements or product claims.

DO NOT forget to notify and train employees on the company’s social media policy.  All of the planning and preparation will be for naught if the policy is not properly implemented.

For more information, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com

Negotiating the Option Agreement

The option process allows entities to share risk.  A production company does not want to expend $25,000 on the purchase of a book and then find out no one is interested in getting the movie made.  An option gives the producer the exclusive right to buy material (e.g. a book, an article, a screenplay, someone’s life story rights) in the future.  For example, a producer options a rising star on the New York Times bestseller list in the hopes of buying rights in the book in the future once financing is secure.

Key Terms of the Option Agreement.

  • Option Price – This number can be a little as a $1.00 or as high as the market will bear.  Generally, the option price is 10% of the purchase price.
  • Purchase Price – This number varies based on a wide range of considerations.  For example, how popular is the work?  Is the author a well-known commodity or an up and comer?  What is the scope of the rights being optioned?  All of these variables play in to the ultimate purchase price.  The market is constantly changing and evolving so it is important to consult someone knowledgeable in the industry to ensure the price is fair.
  • Option Period – The duration of the option.  Generally, an option period lasts from 12 to 18 months, but extensions or renewals usually are included in the agreement.
  • Grant of Rights – Defines the scope of the rights granted to the producer.  The broader the scope of rights, the more expensive the purchase price will be.
  • Renewal Rights – A renewal right gives the production company the right to renew the option for another term. An option is renewed when the producer notifies the rights holder (in writing and prior to the expiration of the initial term) of its intent to extend the option for another term.  Sometimes upon the extension of the option an additional payment is made to the rights holder.
  • Expiration of Option – If the option expires without being exercised, the rights holder keeps the option payment and all intellectual property rights to the underlying material.  The parties essentially walk away.
  • Exercise of Option – If the option is exercised, the production company pays the purchase price to the seller and buys the material.  Sometimes the option payment is offset against the purchase price meaning that the buyer subtracts the amount of the option payment from the ultimate purchase price.

Always negotiate the acquisition agreement at the time you negotiate the option agreement (attach it as an exhibit).  As the producer, you do not want to exercise the option and then be left with not the rights to the literary property, but the right to negotiate to purchase of the material.  Structure the Option Agreement so that once the option is exercised the Purchase Agreement is automatically invoked.

For more information, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com

Do’s and Don’ts – Use of Social Media in Hiring

Social media burst onto the scene and changed the way we do almost everything.  Facebook now has approximately 845 million monthly users, with 250 million photos uploaded every day and 2.7 billion “likes” per day.  Two new members join the professional networking site LinkedIn every second and is the 36th most visited website in the world.  Last count, there were 4.8 billion mobile users and 4.2 billion people with a toothbrush.  That pretty much says it all.

With the rise of social media, its use in hiring decisions is expanding.  Social media can be a helpful vetting tool, but it is important to know and understand the possible risks involved.

Here are some best practices to keep in mind when using social media to make hiring decisions:

  • Do not perform searches on an ad hoc basis.  Apply a consistent approach in your researching by using the same social media sites for reviewing each candidate.
  • Do search only publicly available information.  Do not require applicants to “friend” your organization or provide your organization with their logins and passwords.  Do not attempt to access private information by “shoulder surfing” through “friends.”
  • Do establish a firewall.  Separate the researcher from the hiring decision-maker.  The researcher can filter out information that is irrelevant (such as religious affiliation, sexual orientation) and pass on only relevant information to the hiring decision-maker.  This ensures the decision maker only has job related information.  The decision maker cannot rely on improper information if they do not have access to it.
  • Do keep a record of hiring decisions.  Every organization should document in writing a legitimate, nondiscriminatory reason for each hiring decision.  This is particularly important if you have viewed an applicant’s Facebook page and, for example, have learned of information that should not be lawfully considered in the decision making process.
  • Do draft (and implement) a social media research policy for your organization.  Ensure that your employees have knowledge of the policy and are trained on its proper implementation.  A policy is only as good as its enforcement.

For more information, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com.

Property Owner’s TOP FIVE TIPS for Negotiating Location Agreements

1.  Use of the Property
  • Identify what use producer can make of the property
  • Ensure all major alterations (e.g., knocking down a wall) be approved in writing
  • Require property be returned to original condition post-filming at producer’s expense
  • Ensure all expenses relating to use of property be paid by producer

2.  Access Rights

  • Identify dates of access (limit open ended production dates)
  • Specify time of access to limit disruption to business or household (e.g. 3:00 a.m. filming)

3.  Reps and Warranties

  • Disclaim reps/warranties regarding physical condition of property or suitability for filming

4.  Insurance

  • Ensure producer secures general liability and property insurance of sufficient value
  • Be named as an additional insured on the certificate of insurance
  • Require insurance company be qualified to do business in your state
  • Obtain copy of certificate of insurance before filming begins

5.  Indemnity

  • Don’t fall prey to indemnity language favoring producer’s use of the property
  • Require producer indemnify you for any damage or lawsuits arising out of use of the location and inclusion of the location in the film.

For more information, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com.