Author: Paul G. Anderson, Associate, Ritholz Levy Sanders Chidekel & Fields LLP
Copyright, compared to other forms of intellectual property, is acutely and uniquely attuned to the film and television industry. Somewhat distinctive of these industries are the numerous, low–threshold hurdles that can significantly interfere with a copyright owner’s commercial exploitation of their work in connection with a film or television production.
Judge Kozinski once said that “[m]ovie makers do lunch, not contracts.” While this may be true, they also operate on representations and warranties. Indeed, a copyright owner’s ability to represent and warrant that he controls ‘all rights’ in a work (e.g. a screenplay) is critical to the successful commercial exploitation of a motion picture and/or television project. In such a highly–competitive, interchangeable industry, projects are unlikely to generate significant interest from investors, studios, production companies, and other key parties if there is even a slight risk that an adverse legal claim in an underlying work exists. Accordingly, the purported owner of a copyright to be exploited in connection with a film or television project must typically make certain representations and warranties that they do in fact control all rights in the film. If the owner cannot make these guarantees, the project is unlikely to be sold.
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The views expressed here are exclusively of the author and do not represent agreement or endorsement by the Cardozo Arts & Entertainment Law Journal, Benjamin N. Cardozo School of Law, or Yeshiva University.
