Month 8: Indemnify and Hold Harmless

Law. My family's life blood. Growing up, my father always said, "There's always time for law school..." Having never related to the legal side of my family I always blew this statement off. Growing up, I never wanted anything to do with law. Enter Cassi Willard and Advanced Entertainment Law. Not only did I feel as though I comprehended the legal concepts but I began to believe what my father had always told me. Maybe there is always time for law school?

For my LP assignment this month I had to interview an entertainment lawyer. This proved to be difficult, as he was never in one place for more than a day... seemingly jetsetting like a rock-star to his clients. Below is the interview conducted via email with Ned McLeod, Entertainment Lawyer based in Winter Park, FL.

Also below is a case study of Viacom v. Google:

The following is taken from an email interview with Ned McLeod an entertainment attorney here in downtown Winter Park, FL.

Generally, how did you find yourself in the field of Entertainment Law?

I worked in the film business for 15 years , around the south, and ended up living and marrying in Los Angeles. Spanning art department to writer, director and producer in features, TV, commercials, industrials, and theater. We moved to Florida to be near our families, as we started our own family. I decided to swith careers to law to develop additional skills in the funding and production of entertainment projects – but travel less (No more having to be on locations and away from home). Studying business transactions, intellectual property and tax law prepared me to counsel in the entertainment business, as an expansion upon my previous career of experience and contacts.

Where did you go to law school?

University of Florida, College Of Law

Where did you get your start?

The oldest and biggest general practice firm in Orlando at the time, Maguire Voorhis and Wells (Later merged into Holland and Night), and a smaller firm Mathews Smith and Railey (which no longer exists)

How long have you been in the field?

36 years in entertainment, with 3 in Law School and 20 as a lawyer.

In what sector of the entertainment do you do the majority of your work (music, film, television, etc.)?

40% TV, 30% film, balance in theater, books, music, art and web. .

What types of issues throughout the entertainment industry do you deal with/see most frequently (copyright infringement, protecting intellectual property, licensing, etc.)?

IP transfer and development for MARKET EXPLOITATION.

What has been the biggest case you've had to deal with to date?

“THE PERFECT STORM” CASE, TYNE v. WARNER BROS.

Are there any major liabilities or challenges that are specific to the entertainment industry?

Constantly changing market platforms require growth and development in experience and knowledge. Even a publishing lawyer from 10 years ago, the most stable arena in the industry, would be out of his/her depth, no without hands-on training over the last two years. Also, recurrent conflicts of interest in project development, often involving more than one client.

Starting a television production company in Central FL are there any specific legal issues that I should be aware of that are unique to this region?

No, Other than dealing with Unions, which varies from right-to-work to closed shop states. Entertainment business is the same coast to coast, not counting tax issues (Florida is one of the least taxed business states, but there are different incentives in each state).

I then asked more specific questions that pertained directly to my business such as:

The television show that I am working to produce features a musical artist that is on tour internationally, what types of legal issues should I be most concerned about?

This production is still in the early phases, I have become increasingly prudent when discussing the specifics of the show. What can I do to protect my idea exclusively when moving forward with investors and television networks?

And…

Should I find someone who has taken my idea and used it to produce a show very similar or exactly like my idea, what are my rights/what should I do?

Mr. McLeod refused to answer stating that offering any broad legal advice to specific legal issues while not retained as counsel would be unethical. He then did offer to be retained at the price $400 per hour. How very nice of him.

Works Cited

McLeod, N. (2009, 6 1). Personal Communication . (J. Stallone, Interviewer)

Scaggs, A. (2009, March 19). Q&A: Billy Joel . Rolling Stone (1074), p. 32.

Viacom International v. Google, Inc/YouTube, L.L.C.

Introduction:

On March 13^th 2007 a copyright infringement complaint was filed to the New York Southern District court, the plaintiff Viacom International, Inc. is suing Google, Inc and YouTube, L.L.C. for damages of $1 Billion.

The lawsuit came within six months of Google, Inc.’s acquisition of YouTube, L.L.C., the acquisition came with a lofty price tag of $1.65 Billion. Viacom International is a multimedia super-giant who’s registered trademarks include MTV, VH1, Nickelodeon, Comedy Central, BET, Paramount Pictures and DreamWorks Entertainment to name a few. Under Viacom’s umbrella they own hundreds of copyrighted assets, which act as their financial life-blood.

History of YouTube:

Three men who helped create PayPal.com started YouTube in May of 2005. The idea stemmed when two of the gentlemen had video content of a party that they wanted to show the third that could not attend. Frustrated with not being able to email large video files, they devised a website where amateurs could easily post streaming video content for anyone in the world to watch free of charge. The site took a mere 7 months to catch on, by December of 2005 YouTube posted a sketch from Saturday Night Live entitled “Lazy Sunday” which, within weeks had over 1.5 million hits. Over the next several months the popularity of YouTube grew exponentially. Advertisers, political activists, even media conglomerates used YouTube; it was regarded early on as merely another tool in which to reach potential viewers.

Mid way through 2006 NBC asked that their material be taken off of YouTube, due to the fact that it was driving business away from their company’s website that had featured video content, paid for by advertisers. By 2007 YouTube had become the leading provider of streaming video content. This content now predominantly included videos of first run television episodes minutes immediately after they had aired on television omitting advertisements, featured films and other various form of media that hold copyrights to persons other than those posting content on the site.

In October of 2006, Google, Inc acquires YouTube for 3% of Google’s Market value, $1.65 Billion. The acquisition of YouTube expanded Google’s reach in the online search engine industry. Upon the acquisition Google set aside $200 Million to battle any copyright infringement claim that should arise in the future. (Answers.com , 2009)

Viacom’s Claim:

In March of 2007 Viacom filed a lawsuit against YouTube stating that the website featured over 160,000 video clips that have been viewed more than 1.5 Billion times, all of which are protected under copyright to Viacom. The leading programs being posted to YouTube were Comedy Central’s “The Daily Show with John Stewart” and “The Colbert Report”. Frantic to get the content off of YouTube, Viacom militantly pulled media off of the site and urged YouTube to assist them in policing their site. When YouTube failed to comply to filter their content, claiming “fair use” Viacom responded with the following remarks: “YouTube appropriates the value of creative content on a massive scale for YouTube’s benefit without payment or license. YouTube’s brazen disregard of the intellectual-property laws fundamentally threatens not just plaintiffs but the economic underpinnings of one of the most important sectors of the United States economy.” (Broache & Sandoval, 2007)

Five days later Viacom’s lawyers released this statement in an official complaint served to the court:

“Defendants’ infringement has harmed and continues to harm the interests of authors, songwriters, directors, producers, performers, and many other creators. If left unchecked, rampant infringement will gravely undermine Plaintiffs and other companies that generate creative works, and will threaten the livelihoods of those who work in and depend upon these companies. Plaintiffs therefore have no choice but to seek immediate redress. Plaintiffs seek a declaration that Defendants’ conduct willfully infringes Plaintiffs’ copyrights, a permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiffs’ copyrights, and statutory damages for Defendants’ past and present willful infringement, or actual damages plus profits, of at least one billion dollars.” (JENNER & BLOCK LLP , 2007)

Viacom’s lawyers then charged YouTube with 5 counts of Copyright Infringement under Section 106 of the Copyright Act of 1976, 17 U.S.C. § 101 et seq. (the “Copyright Act”).

Count I: Direct Copyright Infringement – Public Performance

“Defendants, without the permission or consent of Plaintiffs, and without

authority, are publicly performing and purporting to authorize the public performance of Plaintiffs’ registered copyrighted audiovisual works.”

(JENNER & BLOCK LLP , 2007, p. 18 sec. 47)

Count II: Direct Copyright Infringement – Public Display

“Defendants, without the permission or consent of Plaintiffs, and without authority, are publicly displaying and purporting to authorize the public display of Plaintiffs’ registered copyrighted audiovisual works. Defendants cause these works to be publicly displayed by showing individual images of infringing video clips in response to searches for videos on YouTube.”

(JENNER & BLOCK LLP , 2007, p. 19 sec. 53)

Count III: Direct Copyright Infringement – Reproduction

“Defendants, without authority, are making, causing to be made, and purporting to authorize the making of unauthorized copies of Plaintiffs’ registered copyrighted audiovisual works.”

(JENNER & BLOCK LLP , 2007, p. 20 sec. 59)

Count IV: Inducement of Copyright Infringement

“YouTube users have infringed and are infringing Plaintiffs’ rights in their registered copyrighted audiovisual works by, inter alia, uploading infringing copies of Plaintiffs’ copyrighted works onto YouTube’s website and publicly performing or displaying or purporting to authorize the public performance or display of such infringing videos, all without authorization.”

“Defendants are fully aware that Plaintiffs’ audiovisual works are copyrighted and authorized for purchase through various outlets, including numerous lawfully authorized online digital download services. Defendants are equally aware that YouTube users are employing the YouTube website and the services provided through that website to unlawfully reproduce, publicly perform, and publicly display Plaintiffs’ copyrighted works. Defendants intend, encourage, and induce YouTube users to employ the YouTube site in this fashion.”

(JENNER & BLOCK LLP , 2007, p. 21 sec. 65&66)

Count V: Contributory Copyright Infringement

“Defendants are liable as contributory copyright infringers for the infringing acts of YouTube users. Defendants enable, induce, facilitate, and materially contribute to each act of infringement by YouTube users.”

(JENNER & BLOCK LLP , 2007, p. 23 sec. 74)

Conclusion:

The legal battle between these two companies continues, much to the surprise of both parties. Both parties saw this case as cut and dry in their respective favors (Viacom – Copyright Infringement/ Google – “Fair Use”) and expected this case to settle fairly quickly. For the first several months after the lawsuit was filed, Viacom did a great job pulling their content off of YouTube, but because of the nature of YouTube, once you pull one video off – 10 more spring up in it’s place; Viacom has found the task to be daunting at best. Today if one were to search YouTube for “The Daily Show with John Stewart” you would get over 1,400 related videos(YouTube, 2009).

Because of my projected business in the near future, creating a television series that will contain heavy web content as well as web-i-sodes to be featured solely on my website, I can certainly side with Viacom. Losing viewership of your own outlets, many, if not all are free to the consumer at the ease of searching YouTube is disheartening at best and financially devastating to those who hold the copyrights in reality. In this person’s opinion, YouTube should be liable for all damages and be forced to pay the full amount of damages requested with interest for the last 2 years. Other media companies should back Viacom and insist that copyrighted material be taken down from YouTube in lieu of no licensing agreement.

Works Cited

Answers.com . (2009, 5 27). YouTube . Retrieved 5 27, 2009, from Answers.com : http://www.answers.com/topic/youtube

Broache, A., & Sandoval, G. (2007, 3 13). cnet News . Retrieved 5 26, 2009, from Viacom Sues Google Over YouTube Clips : http://news.cnet.com/Viacom-sues-Google-over-YouTube-clips/2100-1030_3-6166668.html?tag=lia;rcol

JENNER & BLOCK LLP . (2007, 3 17). Unknown . Retrieved 5 26, 2009, from Unknown : http://www.lessig.org/blog/archives/vvg.pdf

YouTube. (2009, 5 28). Search: "The Daily Show with John Stewart". Retrieved 5 28, 2009, from www.youtube.com: http://www.youtube.com/results?search_type=&search_query=the+daily+show+with+jon+stewart&aq=1&oq=The+Daily+