never before in history have so many of us had access to the tools and the networks to create content and distribute it to a world wide network but how many of us know the legal implications of what we're creating and disseminating in this edition of pro se nation we're going to be given to explore the vast landscape of media and entertainment law if you're a writer producer singer songwriter performer content producer of any kind i think you're going to find this program interesting and useful i mary  c new york law firm he represents clients in deals new ventures and disputes to help them protect and maximize returns from their traditional and digital content prior to returning to private practice josh served as the managing director and chief strategy officer for diego brands as the general counsel and head of business affairs for w n e t and as an emmy winning executive producer welcome thank you so much very well and it's such a pleasure to be here well i'm so glad you're here and all my friends are glad you're here too oh that's great well i love what your show is about i think it's so important and i'm just glad to be able to contribute to it and it's course like every lawyer i have to make the little disclaimer we're going to get into some details and of course none of the concepts that we should that will be discussing should be taken as legal advice specific situation but i hope that what we talk about is helpful to people gives them guidance and direction and adds to their sophistication in what i think is one of the most exciting and fun areas of the law to practice in and one of the greatest businesses to be in in this era it's very exciting and it's obvious that you know your stuff is you're the only attorney who gave that disclaimer why we need you this really is a vast area right and it's becoming larger and more complex all the time with all of the advances in technology and in this field this area in particular what are some of the most critical issues right now well you hit on it technology is revolutionizing the way we produce content and the way we distribute content i mean think about it it took and it's happening quickly it was a life time from the invention of the telephone to you know the v h s player and in between what did we have radio black and white t color t v that's all that happened in seventy five years now there are one hundred years whatever it is i mean now you know just in a few years of time we have cable and streaming and mobile and interactive and you know virtual reality and three d printing and more things are coming in just when we think we've wrapped our head around something there's something else and it challenges lawyers and professional business council to figure out how to handle this and it challenges creatives and how they use it business models are changing we have changes in the way the labor is working and we have concerns about privacy and security that we've never had before so if you think about the business models when i first started practicing you know what do we mean by business models we mean how do you get paid for the content how do you get the content out there when i first started practicing one of the things i was doing was dealing with some very old deals that hadn't contemplated home video and it was really interesting to sit there and we were in litigation in some cases we were negotiations and others were just trying to figure out how do we use this content in new ways at the same time that i was sort of looking at how the past heads had just not contemplated the future i was writing agreements that were handling the transition from the h s tapes to d v d and the legal industry was starting to think about well gee there's going to be more the internet is here we've got to think about that it was internet one point zero but we were starting to think about writing how we define rights and how we get paid for using those rights in different ways and what a good lawyer does is imagine the future and understand what's going on in the present and work closely with clients and figure out what are you doing with this content today and what are you going to do with it in the future and what might happen in the future that you want to at least be prepared for we can't imagine everything otherwise we'd be the technologists but we can certainly imagine the kind of issues that have to be dealt with you look at netflix and hulu they bypassed broadcast rival movie theaters the content is phenomenal i mean we we watch it we binge watch it the whole way we enjoy it is different the financing model is different it's top talent the stories are amazing but it's a completely different way of looking at content in terms of the business so when you're writing contracts now it seems like you have to say something like you know film video holographs and any other way that this may be viewed or enjoyed in the future sure you do need to what i mean one of the phrases all manner of media now known or here after devised well you know i can just i can rattle that off but the the key is when you're defining right and imagining how you're going to distribute them you want to make sure if you're the content owner that you're not just giving someone all of those rights if that company or individual really expert at a certain kind of distribution and exploitation of those rights for money that's great give them those rights make sure you retain the rights or have the ability to get the rights back to do other things i think one of the other areas is labor in the labor force so talent is everywhere and everyone has talent now and look at reality television look at user generated content and then you still have the hollywood celebrity stars and you have writers who have been writing for twenty years or thirty years and they're on their twelfth book or twentieth book and then you have somebody who is been writing every morning from six am to seven am before she goes to work or takes the kids to school and all of a sudden has a novel and self publishes the novel and it takes off where it's a short story and it takes often and they get a publishing deal i mean everyone has the ability to get their content out there what they specifically some of the concerns that content creators should think about right now in terms of protecting what they create sure there are really three things that i tell people to take very seriously when they're looking at how do they protect their content so one is register the copyright it's not that hard you often you need help the first time doing it a lawyer can help you do it it's not an expensive process sometimes you're not ready to register the copyright you've written a screenplay it's not done it's a draft but you're ready to take it around or you've written a treatment or you've written a story line and you want to protect that you don't want to get into whether this can be registered with the copyright office and h g a has a registration service you do not have to be a member of the w g a and you can use that service and it's very inexpensive and you can upload your material they take books they take screenplays they take songs they take all sorts of media and it becomes evidence of that mailed to yourself prior prior at right and of course they become a third party witness and they're willing to do that right so that's a great thing you can do if you're not ready to register the copyright some people do both be very careful when your entering into any kind of agreement about you content if you've got a written agreement if you have a license if you have an opportunity if you're uploading something and there's terms and conditions you need to read them carefully and if you don't understand them call someone who does and if it's not one of these quick things like facebook or twitter where you sort of understand the general thing that they're doing if it's if you're making a deal and someone's handed you a contract i really encourage people to call a lawyer and get a console and be quick make sure you wonder stand what you're doing and what the implications are so you don't lose everything because ok so in the world of screenwriting playwriting songwriting and i know a lot of people who are engaged in all these activities and then there's these contests and people are always saying oh entered into the festival or a contest and i personally kind of feel like god you know i'm just handing over my baby  right and i think the fear too of course is that it's not that some of these going to blatantly try to steal it but it's like oh you know that's an interesting idea but you know how about if we did this and they sort of they don't steal your plot exactly where your exact song but maybe take kind of the heart of it and then so how can somebody protect themself them in that you're well put like there's an element of good faith and trust that has to go into participating in these things so clearly if you enter a screenplay into one of the well known screenplay contests there's a certain level of trust or the other thing is that is one of the situations where i think the w g a registration process is extremely helpful because the industry is aware of that process and if you enter a screenplay you know a contest and you've noted on your screenplay that it's been registered with the w j people realize helpful for people to do as much research as they can and then come to an attorney for what might be a low cart services right i need a few hours i've done all the research i can possibly do and now you know i have a bunch of questions that i still can't get answered do you work with people on that absolutely absolutely and i think that's a great way for people to use a lawyer and frankly most lawyers don't want to do work that isn't sort of taxing their you know highest level of skill anyway so if somebody has an understanding in their grasp of the basic issues we can have a much more efficient and sophisticated conversation and i work with people on budgets on flat fee bases on console tfi terms and i'm happy to give people direction and say l we've had a console now you take this and you work through some of the details or you research the things i'm not asking the do legal research with right it's the business research and i come back and if you have questions i work with people very effectively they come to me for a console they have a contract we go through it i explain you know the implications of some of the things around it we make sure we're on the same page and i might say look you need to negotiate this change right and i'll write it in get this now they can pay me to get on the phone with whomever is on the other side and i can make the request but often it's if it's fairly straightforward that's not necessary they can make the phone call themselves and say look you know i've reviewed the agreement i've consulted with my had to reconcile the attorney i'd like to make this change so good all around i think it's a great way to work with people what saddens me is when i see people do one of two things and i've dealt with a number of these messes when they sort of get the do it yourself forms but they don't get the guidance that they should have on how to use the forms and then they've accidentally some these are very sophisticated they're very sophisticated in their field and they're generally very smart people but they don't understand they just they don't have the information to know what some of the things really are going to mean for them and then unfortunate things happen i saw a situation where somebody gave away the media rights to their business and you might think well you know it was a very long option and you might think ok well they're still in business but the way for their business to grow was online and they had given those rights away and of course they were in a fight to get them back and that was complicated and expensive and down to prevention early on right could be the difference between being stuck in your day job and realizing your creative ambitions  and you know you're working six months on a screenplay or two years on a screenplay or a novel and then not take the time to make sure that the agreement with an agent or distributor or manager is actually going to or an option agreement is actually going to you know work for you know it's right it's worth the time and trouble and can be done very efficiently from the since you you were the general counsel and in business strategy for w t new york so from this side of the what might be in that case the distributor if somebody is trying to get their screenplay or their episodic series to you know hallmark life time etc oftentimes they won't accept unsolicited submissions short ok well i've heard and you know sometimes they will accept it from a lawyer is that  true and why is that well because then there's a trusted pathway ok so one of the concerns that content distributors and co producers have in production companies have is you know somebody comes in they have some sort of sketchy idea on a napkin under that good or maybe they have you know of a full on proposal and right rightfully written screenplay or treatment it could be it could be polished it could be excellent write but they don't know what the company is working on maybe the company is doing the same thing i've walked into meetings and made pitches and  company i was pitching the work to say we're doing something that's very similar now i was brought into that meeting when i was no one but to the person who brought us together knew both parties and there's a trust when you involve a lawyer or an agent or manager or co producer who has a relationship because you are reducing the risk about a later time having somebody say you know i was there i pitched the idea and they stole it right now we now have witnesses we know exactly what was going on so then what happens in this situation if you know you come in someone hires you to pitch you know the next day out now  and but it's all right you know when the entity you're pitching to says oh no we've already got this in the works and maybe there's even similar plot points or whatever what do you do at that point well actually you don't give them the whole product that the lawyer does or the agent does or whomever they the liaison has is they prepare a letter of introduction saying hi i represent or i work with someone so they have the following concept and you know here's the very short little thing you know description of a tiny thing opposite and that synopsis is then something that the the recipient can look at and say you know because you the lawyer have read the script and so now you know the content distributor looks at the synopsis and says oh this is something that we've never really thought about we hadn't developed anything right right come on and we want that we want to see the whole thing let's have that discussion and we know that it's an accurate representation of what the script is because it's been summarized by someone we know and trust or someone who you know is in the industry or they might read the synopsis and say you know this is really close to several other proposals were considering and we don't need to add more to the mix right now thanks for you know we're going to pass so i have a couple of questions from my friends and colleagues who work and i'm going to jump right into them a friend of mine asked when co writing a song what is the average split when two people are working on both melody and lyrics well it's fairly traditional that i'll be sixty fifty they're both working together if you have three people it's going to be thirds if there's four people in a band and they're all working together it's going to be quarters there could be reasons to come up with a different scenario but that's where i think people should start and that's where a lot of these things and the bigger issue is what does that split actually represent so the song writers are sharing the royalties but they're also sharing the royalties with a publisher the publisher is the entity or the person who goes out and promotes the song and make sure that it gets picked up and that talent come along and sing the song that it gets used by in films and television that it that all sorts of other things they they basically license the rights and make it available to the world and some people are their own publisher sometimes one of the songwriters has a publishing company and it's the publisher and they're the split between publisher and writers is fifty fifty so if you and i write a song together we're going to share our royalty fifty fifty but if somebody is the publisher they're going to get fifty percent so a dollar comes in the publisher gets fifty cents you get twenty five cents i get twenty five cents right now if you have the publishing company then you're going to get seventy five cents twenty five years for your writing portion right which i'm also getting the same because they're the same they're right but then you have the publishing company because it's getting fifty cents because you have the publishing company which is out pushing the music out to the world and generating revenue back right there's another really important question and then i think my five hundred dollars is  the whole concept of fair use shore and this is daunting to a producer such as myself who's working this is community t v but if you're working and now if you're working in public t v i think you you can only do whatever you want right within reason but for instance a small time producer who wants to use you know thirty seconds of my cousin vinny right how does fair use who gets to use it right now i know the news media can in terms of right in terms of a news story if it's with part of a news story so you have to be careful so fair use the concept of fair use is is really as follows a copyright owner owns the rights to their content they own the exclusive right to license it to others to make copies of it to collect money on it and to decide whether they're going to be derivative works from that so sequels for example fair use says you know there are certain circumstances where somebody can use  content that's out there and not have to get your permission and not have to pay for it ok the challenge so the this the areas in which you would consider whether there's a  opportunity are typically news gathering commentary and criticism which can include parody and educational purposes but just because you're in that area doesn't mean you're ok so if you think about so there's a four part test that courts apply and i'm going to take you through all the parts of the test because the the bigger the bigger challenge is that the courts if you read all the cases which for me is fun and really interesting the courts come out different ways and different scenarios it doesn't all reconcile in fact there have been some very good articles trying to do that and concluding that you really can't come up with clear sa harbors without just sort of saying well we know this was done before so we can do the exact same thing again but one of the you know one of the issues in public broadcasting is when it comes to these decisions the content going to be used so if you take so i'll give you an example of it was helping a producer who was making something for public television and they had filmed it was a documentary film somebody the person was walking and in the background it was a madonna song and they said oh can we use that well in the documentary the conclusion was as long as that you know we couldn't do anything that's the sound but you couldn't sweeten it you couldn't bridge the music into the next scene because as soon as you do that right you're now you've now selected the madonna song right you you you liked it i says so i said if you want to use the madonna song and do more with it than license it can do that and why did we care in the context of public television where you might say well we've got a little more latitude well this particular program was also going to be released on d v d so now it's in a to be made or is there or was there money to be made by the the license or right or patel or the copyright holder but again there's there's a fair amount and if you look at you know insurance policies which many  producers have to take out in connection with their project or in the narrows in emissions insurance and in fact if you make a distribution deal the distributors going to insist that you have the policy and name them as an additional insured the policy applications ask who is your lawyer who is helping you with clearance issues and copyright issues because they care not just about fairies and copyright they care about trademarks they care about libel and slander they care about defamation they care about privacy in public city there's a whole host of things you need to make sure you have clear that you have the right permissions in place or you're very comfortable that you don't need them and they want to know who the lawyer is because they want to make sure that it's not my cousin vinny i might hire him for a murder trial because i did very well but i'm not going to use him for my media work just like i'm not going to use me for the murder  they're welcome to contact me on my website and i will send them some materials you know i don't charge for the material since they mail them but i've written to you know i've written some pieces on rights that i think help people strategically think about and have a sense of what issues they need to be thinking about so thank you so much my pleasure and thank you so much for joining us for this edition of pro se nation if you have any suggestions for future topics or you would like to be a guest on the show please contact us through the web at pro se nation dot org i'm mary lynn xiahe and i'll see you in the future