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CONTRACTS ARE STILL CONTRACTS – EVEN IN ‘RIGHT TO WORK’ STATES

Lately it seems that many producers are leaving California and striking out for places like Georgia, North Carolina, etc…   Their reasons are many and varied, but primarily related to enticing subsidies, tax breaks, and access to cheaper labor – among other benefits. Given this exodus, and given the fact that it is happening for economic reasons, it is only logical that these producers are looking to game the union system by specifically moving to “right to work” states. (These are the 28 or so states that have passed laws and regulations prohibiting union membership as a “condition to employment”.)

Most, if not all, of these producers believe they can simply ignore existing labor contracts and be free of the unions’ grasp. Many of the actors and crew believe they don’t have to pay their mandatory union dues. In fact, both of these positions are dangerously inaccurate.

In a “right-to-work” state, the laws and regulations don’t prohibit unions. They just make sure that membership in a union isn’t a condition to employment. Put simply, a worker in a “right to work” state doesn’t have to join a union and pay dues to get a job.  (As an aside, these laws were passed as part of Roosevelt’s New Deal and were, for the most part, intended to combat what was seen at the time as coercive, over-powered unions.)  Despite some producers and workers beliefs, unions still exist in “right to work” states. Members still pay dues. Binding contracts are still signed. Contracts are still enforced.  In fact, some of the fastest growing industry unions are operating in “right to work” states.

This is the case, because unions have enjoyed a long history and deep penetration in the entertainment industry. Indeed, nearly all of the talent and craftspeople necessary for modern productions are members of a union or guild. This includes everyone from actors to producer to DP’s to costumers. Indeed, the most talented and experienced contributors are likely long-time union members themselves. It follows then, that aspiring members of these communities would want to be part of these organizations of their peers.

Why would we believe any of this changes in a “right to work” state?  A contract is still a contract, and an agreement is still an agreement.  A union member must still pay her contractually mandated dues. A union member hired on a non-union set doesn’t magically lose her union status. And while it might be true that in a “right to work” state students just out of school, hired as PAs or video assistants, would not be required to join a union – most welcome the chance to join. And as more productions move to these states, the unions will grow their membership at a commensurate pace. The benefits to new members generally far outweigh the drawbacks – health insurance and retirement contributions chief among them.

For years, producers believed they could avoid the entertainment unions by producing in “right to work” states and hiring non-union employees.  Such has never been the case – despite their beliefs.  In the first place, experienced “above the line” talent (actors, writers, and directors) that producer want in their projects are already union members and will not work in a non-union production. (There are exceptions, but they are few and far between, given the strict rules against working in a non-guild/union production.)  Second, the “below-the-line” crafts, the camerapersons, editors, electricians, grips, etc., have been intensively organized by their very active industry union, the IATSE.  If a union’s members represent a majority of the producer’s employees, or if the union organizes them into membership, there is nothing in a “right to work” law that prohibits the union from demanding recognition and union contracts, and, this is the important part, striking if they feel they are being treated unfairly.   In my experience, most reputable producers have figured this out, which is why the vast majority of productions in these states are under union and guild contracts.

Bottom line, moving your production to a “right to work” state, for the sole benefit of avoiding unions and guilds, will not have a significant effect on your productions. Talent and crews in these locations (particularly Atlanta) are already union members, and you’ll be hard pressed to find folks who won’t require union or guild contracts. Indeed, producers attempting to go completely non-union may actually find themselves in the middle of an organizing campaign with many of its employees jumping at the chance to join and get that coveted guild or union card – to say nothing of decent health insurance and retirement.

PENCIL KINGS INTERVIEW – IS FAN ART ILLEGAL?

 

 

 

 

 

My Pencil Kings interview is up. You can listen here!

WOULD YOU LIKE TO PLAY A GAME?

For my game designer clients and really, for anyone interested in the process. Great discussion of the mechanics behind publishing a game.

http://www.boardgamedesignlab.com/why-a-publisher-might-reject-your-game-and-how-to-handle-it-with-dan-peterson/

EXHIBITING AT A CONVENTION?

Many of you participate in conventions in one form or another. Some of my clients regularly exhibit at conventions/trade shows, etc… I just completed a review of an agreement sent to us by one of the largest “event” organizations on the west coast. Here are some of the warnings I sent my client. (There’s probably a larger article in here somewhere. Maybe when I come up for air in the fall…..)

  1. They may terminate our attendance at any time for any reason or no reason at all.
  2. They reserve the right to take photographs/video of our exhibit, booth space and personnel   and we give them full rights to such images/footage. And we agree to sign all required releases.
  3. They may alter our space at any time.
  4. We need their written permission to “exchange goods or services”. (No actual sales should be made.) We may only exchange information for future contacts/sales.
  5. We’ll have to use their contractors for moving in, setting up, tearing down, etc…
  6. No offsite meetings. We agree not to “encourage absence of exhibitors or invited guests from the Event or Event Facilities.”
  7. We are required to provide them with a list of all individuals/entities who have visited our exhibit.
  8. We have to purchase and maintain an insurance policy naming both the Organizer and the Facility as additional insureds.
  9. They may change the date 30 days in either direction, and/or move the event up to 50 miles without any recompense.
  10. The limitation of liability and indemnification sections are ridiculous. But in my experience these are carved in stone. This should be mostly ameliorated with the insurance you’ll carry.

CONTRACTING FOR CREATIVES – LYNDA CLASS IS AVAILABLE

If you’e got a Lynda account – and we do recommend their excellent training courses – we highly recommend “Contracting for Creatives“, taught by our very own Seth Polansky!

Interview on “The Law Entrepreneur” Podcast

My interview on “The Law Entrepreneur” podcast is live today. You can find it on iTunes or directly on their website here.

ZENIMAX vs FACEBOOK (Was Oculus VR’s Tech Stolen From Zenimax?)

I’m assuming all of my industry clients are following this lawsuit?

In case you’ve been living under a rock, here’s the one sentence summary. Zenimax (parent of Bethesda Software [and other industry names you know]) sued Facebook (the company that bought Oculus) alleging that Oculus stole their VR intellectual property from Zenimax. This is going to be an interesting trial.

Race to the Bottom

I’d hesitate to call this a “good” article, but it is something I’ve been intensely interested in for some time: States Vie to Shield the Wealth of the 1%.

Intellectual Property II: The Wrath of Con(s)

This past weekend I was privileged enough to attend a wonderful pop culture convention that shall remain nameless. While participating in the excellent panel discussions, film screenings, and photo ops, I crystalized an idea I’d been flirting with for a while now: How to attack the problem of copyright infringement by vendors at conventions.

All it took was a walk through “Artist Alley” to really understand the magnitude of the problem. Without exaggeration or hyperbole, 70-80% of the vendors and artists were selling infringing intellectual property (‘IP’).

Wrath of Con Pic 01

(This artist/vendor even uses the name “Avengers” in one of the prints on the left.)

 

(I doubt this artist/vendor has been granted the appropriate licenses for Flash, Deadpool, Agent Carter… oh and Star Wars.)

(I doubt this artist/vendor has been granted the appropriate licenses for Flash, Deadpool, Agent Carter… oh and Star Wars.)

There are multiple, overlapping problems here, and I’m not sure that there’s an easy way to unravel ye olde Gordian Knot. Here are the issues as I see them:

  1. Artists/vendors are selling items that clearly infringe the copyrights of others.
  2. Artists/vendors often do not understand how IP rights work, and more troubling, often don’t understand the risk they’ve taken on by selling potentially infringing items at a convention.
  3. Artists often rely on selling such work to make ends meet.
  4. Convention organizations, with few exceptions, turn a blind eye to their vendors’ sale of infringing material.
  5. IP rights holders aren’t enforcing their rights – or perhaps not even paying attention to the issue.
  6. Consumers (that is to say con-goers) either don’t understand that what they’re doing is supporting theft, or they don’t care.

 

The obvious legal answer is that all conventions should stop allowing the sale of infringing items, and attendees should refuse to purchase them. But I’m not naïve enough to think that attendees or organizers are going to stop any time soon. Indeed most conventions simply shift the risk onto the vendors and artists. In my experience, their agreements include a clause similar to:


“Vendor/Artist certifies that, i) it is and shall remain in compliance with all State and local laws, regulations, statutes and rules, ii) it has the legal right to sell and offer for sale the products it sells at the Convention, and iii) it shall indemnify, defend, and hold harmless the Convention and any of its officers, directors, employees, and agents from claims in any way related to Vendor/Artist’s violation of any term of this Agreement.”

So what’s the answer? Is there an answer? Who is the most at risk here, and how can everyone – artists, vendors, attendees, and organizers – protect themselves?

In the discussions below, I’ve attempted to provide some suggestions intended to help artists, vendors, and con-goers alike navigate their way through this … ridiculousness.

 

  1. Artists/vendors are selling items that clearly infringe the copyrights of others.

 

This is a statement of fact. It is indisputable. 

(I’d be floored if this artist had been granted a license to reproduce and sell Yoda prints. And Indiana Jones. And Xena.)

(I’d be floored if this artist had been granted a license to reproduce and sell Yoda prints. And Indiana Jones. And Xena.)

 

(Just because you’ve ironically put Boba Fett “hunting” Carmen San Diego and Waldo in your painting, you haven’t satisfied any requirement(s) for a fair use exception.)

(Just because you’ve ironically put Boba Fett “hunting” Carmen San Diego and Waldo in your painting, you haven’t satisfied any requirement(s) for a fair use exception.)

 

I regularly hear uneducated arguments, often citing “fair use”, but in 99.9% of the situations I’ve encountered these arguments are utterly inappropriate.

They often go something like this:

  • One-of-a-kind, original drawings and paintings of someone else’s IP are okay.
  • Since everyone does it, copyright holders must not care.
  • If I only sell it at conventions, and not online or in stores, it is okay.
  • If I’m not making a profit, it is legal to draw someone else’s characters.

 

Each and every one of these is false. Let me repeat that. Each and every one of these is false. Any questions?

In any event a claim of fair use is always a question of law and artists/vendors can potentially be dragged into costly litigation over their mistaken belief that there is some sort of legal precedent that allows them to violate someone else’s IP rights. (For a detailed discussion of “fair use” please see one of my previous articles, here.)

 

  1. Artists/vendors often do not understand how IP rights work, and more troubling, often don’t understand the risk they’ve taken on by selling potentially infringing products at a convention.

 

The arguments I’ve listed above, and that I regularly hear from artists/vendors, are clear and convincing evidence that most of them really don’t understand what they’re doing. (At least one hopes so – though there are those who know exactly what they’re doing and just don’t care. See section 5, below.)

Here’s a quick and dirty test anyone can perform at any time to answer questions about fan art or infringement issues:

Question:        Do you own the IP in question?

          A1: Yes.

Then you may do as you wish with the IP.

          A2: No.

You have no right to profit from work featuring the IP, and almost no rights to create infringing work not for profit either.

          A3: No, but I have a license with the IP rights holder.

Then you may do as you wish with the IP, subject to the terms of the license.

 

  1. Artists often rely on selling such work to make ends meet.

 

From a purely legal perspective, these artists are violating the copyright of the IP rights holder. Replication, or the creation of a derivative work, of someone else’s IP is infringement.

Copyright is a powerful thing. It was intended to protect authors, but today is mostly used by corporations to protect the rights transferred to them from artists via “work for hire” contracts. We’ll get deeper into the corporate side of things later, but keep that in mind for now.

As a result of my personal and professional experience, my discussions with clients, my discussions with artists, and many detailed reviews of illustrator’s contracts, it is clear that the industry is in need of better contracts/agreements that commission a work (or employ an artist).

Moreover, given the conspicuous absence of litigation by major corporations, indeed their conspicuous absence in weighing in at all, it stands to reason that they really should have no problem with ceding some small rights back to the artists.

Wizards of the Coast/Hasbro has taken a good first step here by allowing Magic the Gathering (‘MTG’) artists to reproduce their work on playmats. Prior to 2016, the vast majority of MTG art was work-for-hire, and the artists retained few or no rights.

 

  1. Convention organizations, with few exceptions, turn a blind eye to their vendors’ sale of infringing material.

 

This is also incontrovertible truth. Here’s an excerpt from San Diego Comicon’s vendor agreement:


“15. Copyrighted Materials
Exhibitors shall not play or permit the playing or performance of, or distribution of any copyrighted material at the Event unless it has obtained all necessary rights and paid all required royalties, fees or other payments.”

As you can see, they’ve shifted any risk from themselves onto the vendors and artists. And perhaps rightly so. Is it the job of convention organizers to enforce the law? Con organizers have many, many responsibilities – is enforcing IP law one of them?

From a legal perspective, it isn’t their responsibility – assuming they’ve shifted the risk to the vendors and artists. Which most of them have done.

Now that said, I do believe that Con organizers have a responsibility to require vendors and artists remove infringing products from the vendor room floor – once they’ve been notified that it’s there.

By way of illustration, here’s an excerpt from the Otakon artist alley agreement. I had the opportunity to speak with some of the Otakon staff this weekend, and they actually do police the floor for obviously infringing work. While not perfect, their agreement goes go a long way towards protecting IP rights, in that they regularly request artists and vendors remove infringing works.


“The artist bears all responsibility and risk for the items brought for sale at Otakorp, Inc. Any questions regarding this policy will be resolved by the Department Head of Artist Alley, in consultation with Otakorp Inc.’s lawyer when needed. If a piece of art appears to be very similar to a licensed, copyrighted, etc. piece of art, the artist may be asked to remove it from display and sale at the discretion of the Department Head. The Department Head’s decision is final.” 

 

  1. IP rights holders aren’t enforcing their rights – or perhaps not even paying attention to the issue.

 

This is troublesome. It leads to the situation we find ourselves in today. In my experience, the combination of artists and vendors who are ignorant of IP law, and the lack of any legal repercussions or penalties, leads to flagrant and widespread IP violations.

Take the recent case of Tim Lundmark. He appeared at Minneapolis Comic Con selling unlicensed prints of many artists’ work. Aldrin Aw / Buzz, who has worked on titles such as X-Factor, Justice League, etc… reported him to the Con organizers, posted extensively on social media, and had the story picked up by Bleeding Cool.

I can’t even begin to imagine what it must feel like to have worked on a popular comic, not own the work I did (most in-house artists are employees, and their art is the property of their employer), and show up at a convention to see someone selling blurry, photocopied prints of my own work – that I’m not even permitted to sell?!?

Unfortunately, to date no significant action has been taken by any of the larger corporate IP rights holders. Until the large corporations get involved, and make it economically risky to the convention organizers, things are unlikely to change. What it’s going to take is something like the Star Trek Axnar case – which is to say something attached to six-figure dollar signs – before they sit up and take notice.

 

  1. Consumers (that is to say con-goers) either don’t understand that what they’re doing is supporting theft, or they don’t care.

 

This, to me, is the crux of the issue. Fans attend conventions because they love the characters, shows, and art. When addressed one-on-one, the vast majority of fans are law-abiding folk who love their favorite comics, characters, and games. I suspect if you asked each individual con-goer, very few, if any, would agree that they’re happy to support what basically amounts to theft.

I submit to you that the answer here, as in so many other arenas, is education. Fans, con-goers, artists, vendors, and convention organizers alike need to understand that much of this type of work is unlawful.

So how do we educate? San Diego Comic Con brought in John Wells, Deviant Art’s General Counsel, who gave an excellent talk on the subject. More conventions should take a page from this book, and include these excellent discussions in their programming.

In all honesty, I expect that nothing’s going to change until someone gets made an example of. Given that Disney is now the parent company of Marvel – the “example” may come sooner rather than later. (In case you’ve been living under a rock, Disney controls its brand and IP with an iron fist.) I urge you … don’t be the horrible, horrible example.

Practical Advice for Artists and Fans

If you’ve read this far, I’m assuming you’re still interested and wondering what you can do to help.

If you’re a fan it is incredibly easy. All you have to do is ask one of these simple questions of the artist or vendor.

  1. “Do you have a license for this print/t-shirt/tea-cozy?”; or
  2. “Did you create that character/image/item and keep the appropriate rights?”

 

As a fan, you bear part of the responsibility to help fix the problem. Don’t buy art or products that rip off the stuff you love.

If you’re an artist or convention vendor, you need to educate yourself with regard to intellectual property. After all, as an artist, your job is the creation of intellectual property; and as a convention vendor, your job is selling items that contain someone’s intellectual property. This is the world you live in. It is in your best interest to understand it!

  1. Ask yourself, “Do I have the right to use/paint/draw/sell this IP?” (And be honest with yourself. It is unlikely that you’ve substantially altered the IP enough to satisfy any fair use requirements. As I mentioned above, if you want to delve deeper into fair use – I’ve written a fairly extensive blog post about it here.)

 

  1. Read the contract or agreement that describes what you’ve agreed to by selling/attending each convention. As we’ve seen above, it is likely you’ve agreed that anything you offer for sale will not infringe the IP rights of another, and that you’ll pay for (the legal jargon here is indemnify and defend) any suits or claims against the convention. Do you really want to have to pay a Comic Con to defend a lawsuit brought by Disney, Hasbro or Warner Brothers?

 

Finally, a last word of advice for artists. If you’re at a convention and you see someone selling what appear to be unauthorized copies of a work – say something to the organizers, take a picture, and bring it to social media. But most importantly, keep it civil. If it ever comes to litigation, you want to make sure you look like a rational businessperson. Not a foul-mouthed cretin. It is much more likely (at least in today’s environment) that the issue will play out in the court of public opinion.

Things aren’t going to change overnight, but I believe that with a concerted effort on the part of artists, fans, IP rights holders, and convention organizers, we’ll get there eventually.

As always, if any of you have more questions, or find yourself in need of legal advice in this arena, my door is always open.

C IS FOR COOKIE!

Have you ever wondered why (in the last few years) you’ve been barraged with “cookie” notices on many websites you visit? Well you’re not alone. Today’s blog post will explain more than you really wanted to know about cookies. (Note that this post assumes a basic understanding of the way the internet works … which may be assuming a lot. Additionally – if you do this stuff for a living, you’ll find this semi-remedial.)

At its core, this is about privacy. Why? Because a cookie is a file placed on your computer by a website you visit, which it then also retrieves when you return to the site using the same browser. It can contain any text based information, but it cannot be used to spread viruses or other malicious software. It can, however, be used for a wide variety of purposes – many that could be considered terribly invasive to your personal privacy. (To find more about cookies, have a look at Cookiepedia – a leading resource on the subject.)

Although cookies are in many ways essential to the modern internet, ever since they were created a debate has been going on about their impact on the privacy of web users. They are basically a way for a website, and the people who own that site, to store and retrieve data about the user or their interaction with the site. They do this, generally speaking, to either alter what that person sees, or record their activity (which is to say, the pages they visit, how long they spent on a site, etc…). Cookies are central to the modern web experience. So although they are not inherently ‘bad’ there do engender valid privacy concerns.

This all started in the 90’s in the European Union (“EU”). The European Commission (“EC”) promulgated a data protection directive that regulated the processing of personal data within the EU. The intent behind the directive was to increase the options available for consumers to protect their data privacy. Both then and now, many websites collect(ed) user data without any user awareness, and every day more and more companies are learning to exploit the value of that data.

The directive hoped to enable consumers to strike a new bargain with these businesses – requiring businesses to inform consumers of what is being gathered, and enabling them to choose to participate in this or not, at their discretion. We should note here that the EU directive does not simply apply to cookies. It includes Flash cookies, HTML5 local storage, etc… indicating that it isn’t good enough to just re-implement the tracking some other way outside of cookie storage.

Now that we understand the what and the why, to whom does this directive apply? The answer – any website available in the EU.  (Or in legalese – the “…processing of personal data by any person whose activities are governed by Community law”.) Given the “messy” nature of the EU, the EC left it up to each member country to legislate and enforce this directive. To say that enforcement and legislation across the EU has been … spotty … is an understatement.

So where does that leave us – the users of the internet and the beneficiaries of the EU’s privacy directive?

Apparently with a banner on every website we visit, notifying us that the site uses cookies. Whether you want to block them or not is your choice. Though I suspect if you’re reading this on Facebook or Linkedin – they’re currently enabled.

(I would be remiss if I failed to note that there will be serious revisions of the EU privacy directive in the coming months. I could have gone into them here, but perhaps that’s another blog post…)