PLAN / 2006 / tasks (08-29-06)
legal overload that distracted from the actual creative effort, thanks to the convoluted style of John Tormey
1. dan to do
1. Artist house, Inc. corporate
1. corporate reports
1. paperwork from JBK
1. file corporate reports and pay corporate taxes
1. john needs documentation – (september)
2. definition to include film making, production
4. defense via letters
5. Canadian law
1. contractors, taxes and related reporting
6.Artist house, Inc. as a container for assets that is disconnected with Dan’s personal fate. If authorities attack Dan, the container could continue under some other prearranged stewardship. A theoretical discussion to be revisited later.
2. work permits
1. Sonya after August 1 on corrections
1. claiming for Artist house, Inc. rather than Dan Kelly, appropriate for accounting?
2. new script, draft copyright application, forward to John for review. possibly remove dick reference in update.
3. simplify all copyright notices – © 2006 Artist house, Inc. All Rights Reserved
1. √ emails initiating work with all contractors
1. BCCed to members of DOG mailing list,
Michael (Melonie) Callaghan
Maho Mizutani Sone
2. From: Dan Kelly <firstname.lastname@example.org>
Date: March 21, 2006 10:27:30 AM EST
To: Dan Kelly <email@example.com>
Cc: Dan Kelly <firstname.lastname@example.org>
Subject: contracts and profit sharing for upcoming project
I am wearing my Artist house, Inc. corporate hat today. This is my first broadcast to the entire ensemble for Daughter of God. First of all, welcome to our first international production!
I plan on having independent contractor agreements ready before April 1, thanks for your patience. You’ll all have at least one week to review and comment before the sign date, April 7. We then will leave for Canada on April 10 for 10 days.
I have been considering the terms for the contracts. As you may know, on movie projects there are two significant ways to compensate the participants- 1) pay everyone for the actual time they work and 2) pay them based on how much money the project makes in the market – profit sharing. Partial ownership of a project through profit sharing can be very motivating during production and may provide ongoing income afterwards. In principle, I don’t have a problem with this idea. The real life application to “Daughter of God” however is complicated. Aside from the legal research required (which takes time away from general pre-production) I don’t really think this makes sense. I’ll explain why, but first let’s assume that the final product is amazing – the performance’s are fantastic and the production is masterful. Here we go…
I am excited to bring “Daughter of God” to the entire universe via festivals and creative distribution. I am not sure how much distribution will happen through sales. The length of the finished project is projected to be about 10-15 minutes long. There is a market for selling short format movies, but it isn’t huge. The revenue stream may be pretty trivial or even non-existent.
Artist house, Inc. is funding this project and has first dibs on any revenue. Profits would have to exceed total expenditures before any profit sharing would kick in. The projected budget for this project is significant. I’d be thrilled (shocked) to break even on my first marketable project.
The director (me) was lucky to get some pretty amazing people involved. The only hitch is that some of our actors are not legal to work in the USA. When the project goes into wide distribution it’s likely that some close minded folks might be upset by the slightly controversial subject matter. The last thing we need is to be legally vulnerable – for instance drawing the attention of immigration and homeland security. That could ruin not only potential profitability, but even prevent participation in film festivals. That’s primarily why special arrangements have been made to shoot the project outside of the USA. These special arrangements have increased the budget – travel, lodging, location, etc. Again, profits have to exceed expenditures.
Finally, entertainment lawyers make a heap of money working up profit sharing agreements. These agreements spell out who actually owns the project, who has title to it, what counts as shared revenue etc. If the title is unclear or disputed, say goodbye to distribution. Again as this is my first foray into the business of movies, my preference is for keeping the situation dirt simple – Artist house, Inc. as the sole owner of all rights, period.
Keeping all this in mind, I think the idea of profit sharing is good in principle. As the chief executive officer of Artist house, here is my offer for all participants in the project – be you cast, crew or support. If we pull off a miracle in Canada I will authorize a profit sharing effort, which basically means hiring legal resources to create profit sharing agreements for everyone involved. The following caveats apply!
1) The decision to profit share will be totally at my discretion. The final arbiter of miracles is the post production process. If the performances are strong and things flow smoothly during the edit, we are golden.
2) Everyone involved from in all phases of production will share equally in the hypothetical profits. With lots of participants, percentages will likely be modest – less than 3%.
3) Artist house, Inc. will need to recover all of it’s investment before profit sharing will kick in. That includes every possible bean you can imagine – labor, equipment, marketing, legal expenses, etc. The specific break even point would be listed as part of any agreement.
So that’s the profit sharing issue in a nutshell. The rest of the terms for the contractor agreements are listed below. If anyone has any problems with anything in this document, you must contact me immediately!
1) 10 full days of shooting on location (Canada) 8-10 hours
2) contractors get no additional profits from the sale of the movie and have no further expectation of payment after production is complete
3) work for hire, contractor releases all rights for any and every purpose, throughout the universe in perpetuity, including marketing and merchandising
4) please be healthy and well rested upon departure for canada on April 10
5) Actor’s rate on location is $150 US/day. Everyone else’s rate is $100US/day. Food and lodging will be provided.
Questions? Call or email.
Artist house, Inc.
3. From: email@example.com
Subject: Re: contracts and profit sharing for upcoming project
Date: March 22, 2006 2:44:49 AM EST
i understood fully. 🙂
4. From: firstname.lastname@example.org
Subject: Re: contracts and profit sharing for upcoming project
Date: March 27, 2006 5:37:47 AM EST
Is fine. Hear ya. Kiss
5. From: email@example.com
Date: March 31, 2006 12:35:08 PM EST
I need to check on the passport, but I think I can work this out to come alone. I need more details like method of travel, where and what it is, am I qualified? I actually can probably do this. Call me.
6. From: firstname.lastname@example.org
Subject: Re: help?
Date: March 30, 2006 6:25:48 AM EST
I really want to help. Yesterday Ada was weaned so I’m
free from that demand. I will work today on trying to
set up child care. Are the dates definite?
7. From: email@example.com
Subject: Re: monolog
Date: March 29, 2006 11:20:51 PM EST
hey dan, lost my phone. i`ll come by in the morning
k. what`s your num?
8. From: firstname.lastname@example.org
Subject: Re: Makeup Artist – Laynea Roberts
Date: April 4, 2006 1:40:02 PM EDT
Everybody thinks your cool. Are you still up for makeup trial this week? Let us know!
9. From: email@example.com
Subject: Re: hi
Date: April 5, 2006 4:25:31 PM EDT
Here attached is the invoice for the check you gave me. Sorry I forgot about it.
2. √ contractor information
1. √ eiji sumi (male)
1. japan citizen, green card
3. phone (646) 472-6419
4. birthday 1/11/1970
5. 445 E 9th st #9
New York, NY, 10009
2. √ ann loeding (female)
1. usa citizen
3. phone (845) 331-3180
4. birthday 09/28/1963
5. 39 Tompkins St
Kingston NY 12401
3. √ melonie callaghan (female)
1. usa citizen
3. phone (231) 275-1364
4. birthday 4/9/73
5. 1890 Sleepy Hollow Lane
Interlochen Michigan 49643-9296
4. √ steven zilliax (male)
1. canada citizen (no usa green card)
2. phone (705) 929-5904, (347) 401-1756
3. birthday 4/22/71
4. 536 Ester Rd
Sudbury Ontario Canada P3E 5C4
5. √ carmen althaus (female)
1. switzerland citizen (no usa green card)
2. phone (41) 76 517 5359
3. birthday 12/24/1976
4. Balmweg 10
3604 Thun, Switzerland
6. √ dan kelly (male)
1. usa citizen
3. phone (231) 882-0460
4. birthday 5/18/1963
5. 4077 Crystal Drive
Beulah, MI 49617 USA
7. √ laynea roberts (female)
1. dual USA and Canada citizen
3. phone (917) 497-4835
5. 22 Fort Place
Staten Island, NY 10301
8. √ maho mizutani (female)
1. japanese citizen (green card)
3. phone (917) 604-5061
4. birthday 2/25/70
5. 67 S 4th Street
Brooklyn NY 11211 USA
3. √ carmen’s h2b application
4. √ photocopy of check mailed with copyright application
5. √ photocopy of canceled check
2. √ Work permits
1. (from 2.6) IF FALSE OR INCORRECT INFORMATION WAS PROVIDED TO THE RELEVANT AUTHORITIES, OR IF THE AUTHORITIES RELIED UPON FALSE OR INCORRECT INFORMATION WHEN ISSUING THE DOCUMENT OR DOCUMENTS, I SUPPOSE IT COULD BE ARGUED THAT WORK EVOLVING FROM THAT FACT PATTERN WAS IN FACT NOT LEGALLY PERMITTED. BUT AS ABOVE, THE ANSWER WOULD NEED TO BE A CANADIAN COUNSEL CALL.
2. (from 2.6) I THINK YOUR COMPANY ALREADY WANTS TO KEEP THEM CONFIDENTIAL AND NOT DISSEMINATE THEM TO ANYONE UNLESS ABSOLUTELY NECESSARY. AT MINIMUM THEY RAISE A FEW UNANSWERED QUESTIONS, LIKE ‘HOW DID THE AUTHORITIES ACTUALLY OBTAIN THE MISTAKEN INFORMATION, FROM WHOM, AND UNDER WHAT CIRCUMSTANCES’?
3. (from 2.6.2) THEREFORE, YOU SHOULD WORK WITH THE ASSUMPTION THAT YOU WILL HAVE TO SHOW ALL CARDS. OTHERWISE YOU COULD END UP IN BREACH.
THAT BEING SAID, FILM COMPANIES MAY VARY TO THE DEGREE TO WHICH THEY WILL WANT TO REVIEW AND RECEIVE COPIES OF THE ACTUAL WORK PERMITS. UNFORTUNATELY, YOU WON’T REALLY KNOW UNTIL YOU TEST IT, IN THE CONTEXT OF ANY INDIVIDUAL DISTRIBUTOR.
I KNOW IF I WERE REPRESENTING A U.S. DISTRIBUTOR REGARDING A FILM I WAS TOLD WAS SHOT IN CANADA DEPICTING ACTORS RESIDENT IN MULTIPLE COUNTRIES, I’D ASK IN WRITING FOR DOCUMENTATION PROVING THEIR RESPECTIVE RIGHTS TO WORK ON THE PICTURE AND IN CANADA. BUT AS TO WHAT I WOULD DO, IF DENIED IN WHOLE OR IN PART – WELL, I’D ADVISE MY CLIENT OF THE RISKS AND THE CLIENT WOULD THEN DECIDE WHETHER THEY STILL WANTED TO DO THE DEAL WITHOUT THAT DOCUMENTATION PROVIDED.
4.*** False testimony could not and did not factor in. Canadian immigration authorities relied solely on two documents when preparing the permits – the labour market opinion (issued by Service Canada Foriegn Worker Program) and the applicant’s passport.
5.*** It doesn’t make sense to keep documents crucial to the chain of title process confidential, certification will fail. Any party with serious interest is going to scrutinize the property thoroughly, so an attempt has to be made to have the permits remediated. Dan is less concerned about Canadian immigration coming after Artist house, Inc. or Dan personally for non-compliance with flawed permits than he is with the hassle of a failed chain of title certification by an interested distributor.
6. (from 2.6.2) HOWEVER, DIFFERENT COMPANIES HAVE DIFFERENT PROCEDURES, AND SOME ARE MORE FORMAL AND DETAILED THAN OTHERS. IT WOULD ULTIMATELY TURN INTO A RISK AND BUSINESS CALL THAT THE (PRESUMABLY WELL-ADVISED) CLIENT WOULD MAKE.
7. (from 7.4) Ann’s labor market opinion is still missing. Dan might be able to get the Canadian Entertainment Unit of the Foreign Worker Program to fax another for the file, since Ann’s inaccurate and misspelled permit could stand some clarification.
SUBJECT TO MY CONCERN ABOVE THOUGH, ON PAGES 3 AND 12. BE CAREFUL. MY INSTINCT IS THAT YOU HOLD OFF ON CORRECTIONS, AFTER SEEING THIS MEMO.
8.*** A clarification – the labour market opinions were issued by Service Canada Foriegn Worker Program and work permits were issued by the Landsdowne Immigration Office. Dan has contacted Sonya Di Mambro the Foriegn Worker Program Officer responsible for issuing the Labour Market Opinions and obtained a copy of Ann’s labour market opinion via fax, and requested advice on how to best resolve the gross errors made on the permits. She intervened on the projects behalf with immigration once before and may be able to staighten this out also. These are basically clerical errors, totally the responsibility of the immigration authorities and might turn out to be no big deal to fix. Dan is confident that consulting her is a sensible first step and will not jeapordize the project, Artist house, Inc. or Dan personally.
9. (from 126.96.36.199) Alexander Henry is the name of the ship that was the location, an asset of the museum which rented it to us. Ann and Dan caught this at the immigration office, but they said “oh that doesn’t matter.” Clearly it matters now.
OH, THANK GOD. I THOUGHT SOMEONE MAY HAVE MADE A MIS-STATEMENT TO THE AUTHORITIES. I NOW UNDERSTAND AND FEEL A LOT BETTER ABOUT THIS.
I THINK THE IMMIGRATION FOLKS WHO SAID ‘THAT DOESN’T MATTER’ WERE WRONG, AND THAT THE WRITTEN RECORD SHOULD HAVE BEEN CORRECTLY MADE. THEN AGAIN, I ALSO UNDERSTAND WHY YOU WOULDN’T WANT TO BE A THORN IN THE SIDE OF THE IMMIGRATION AUTHORITIES, AND ‘MAKE’ THEM RE-DO FORMS, ETC.
10.*** John is correct in this assessment, Dan and Ann were reluctant to ask Canadian immigration officials to fix the error plus they were already a day behind schedule because of the mistake immigration had made the day before.
11. I THINK THERE IS ENOUGH ON RECORD NOW TO ESTABLISH THAT THIS WAS THE MISTAKE OF THE IMMIGRATION AUTHORITIES; THAT YOU CAUGHT IT; AND THAT THEY CHOSE NOT TO FIX IT. IN OTHER WORDS, A BIT OF A RELIEF.
12.*** That’s good.
13. (from 15.8) Interpretation – the gross errors on the work permits appear to be a very weak link in the chain. Dan will attempt to have all the permits reissued with the correct information when a copy of Ann’s labour market opinion is obtained.
WHOA. DON’T DO THIS YET, PLEASE.
I AM TROUBLED BY THE POSSIBILITY OF YOUR COMPANY OR YOU OR ANN GOING BACK TO THE IMMIGRATION AUTHORITIES AND RISKING ‘ADMITTING’ ANY NON-COMPLIANCE, EVEN IF ANN’S.
I WANT TO DELIBERATE ON THIS, AND THEN DISCUSS IT WITH YOU, NOT IN FURTHER WRITING, BUT ON THE PHONE (UNUSUAL AS THAT MAY SOUND COMING FROM ME).
14. *** Dan’s email to Sonya. The “chart” refered to in the email was a small spreadsheet documenting the types of errors made on the 4 work permits.
1. From: firstname.lastname@example.org
Subject: Re: Foreign Worker Application
Date: July 27, 2006 4:31:56 PM EDT
Got the fax, thanks very much!
I’ve included a little chart of errors for the work permits. The crucial item is “employer” which is wrong on all four permits. Where as “employer” should have been “Artist house, Inc.” everyone is listed as working for “Alexander Henry”, which was the name of the ship that we rented from Marine Museum of the Great Lakes in Kingston and used for our location. I caught this error right away but the immigration folks said, “oh, that doesn’t matter”. It turns out it does matter – to our lawyer. Without proper documentation we might have a problem proving that the project actually belongs to Artist house, Inc.
15.*** Dan’s phone call with Sonya July 28, 2006 1:00 pm.
1.Sonya Di Mambro’s agency has authority over business and foriegn workers in Canada so documents issued by her agency are important. The information recorded by her agency is also part of the electronic FOSS system, and can be accessed by Canadian embassies and consulates. In her opinion, since the electronic FOSS records for our project are accurate, the discrepancies between the labor market opinions and the work permits indicate human error in generating the work permits. Working through her agency, Sonya will explore correcting the permits with immigration. She will be in contact early next week. If corrections are not feasible, another option would be approach the Canadian consulate or embassy and present the case for some form of correction or remediation. Dan faxed her the four permits and the group permit, and she acknowledged receipt.
16. *** Dan will act only if Sonya offers a straightforward solution to this problem, otherwise Dan and John can discuss alternatives.
3. √ Corporate status
1. (from 3.4) John should expect an update by the middle of August confirming Artist house, Inc.’s viability as a entity to own intellectual property and make contracts. OK. I AM ASSUMING THAT ARTIST HOUSE, INC. IS ALREADY VIABLE, AND THAT THE STEPS YOU ARE TAKING ARE STEPS OF CARE TO SUSTAIN THAT ON WRITTEN RECORD. I DO THINK THE SEQUENCE OF STEPS, OF ‘LOOK INWARD BEFORE LOOKING OUTWARD’, MAKES A LOT OF SENSE IN THIS CONTEXT THOUGH.
2.*** I agree, let’s proceed with the expectation that everything will be in order by mid August and get the contracts ready ASAP.
4. √ Trademark
1. (from 4.2.1 ) renewal
1. “artist house” is a registered trademark of Artist house, Inc. The mark is up for renewal in 1997, expiring in 1998. WAIT A MINUTE. 1997? 1998? THOSE YEARS DON’T LOOK RIGHT.
2.*** Disregard this. based on TARR record, Artist house, Inc. must be renewed by 2008.
3.*** TARR record
2.*** Prosecution history 2002-11-15 – Section 8 (6-year) accepted
3.*** 11/15/2002 + 6 years = 11/15/2008
2. expansion and international
1. (from 4.3.1) expand the definition of the mark to include filmmaking and all related activity AFTER CONFERRING WITH YOUR TRADEMARK COUNSEL WHO HANDLED THE ORIGINAL FILING FOR YOU.
2. (from 4.3.2) look into international registration eg madrid and c) take steps to defend the mark. AFTER CONFERRING WITH YOUR TRADEMARK COUNSEL WHO HANDLED THE ORIGINAL
FILING FOR YOU.
3.*** No counsel was involved. Dan traveled to USPTO archives, searched the trademark records and filed the application. It’s likely that Dan will handle this process again, perhaps with the assistance of counsel.
3. defending the mark
1. (from 4.3.3) take steps to defend the mark. MAYBE, DEPENDING UPON THE FACT PATTERNS. TILTING AT TRADEMARK WIND MILLS CAN BE AN EXPENSIVE PROPOSITION.
2.*** Dan has been lax at defending the mark in the past, and if the mark is worth promoting it’s important to start a good faith effort to defend it. Letters are cost effective, could resolve most disputes by making the other entity aware that the mark is not available, and also serve to document the history of defense in cases where more agressive action is later required. This is certainly an area for further research for Dan and will update John on progress.
5. √ Copyright
1. (from 5.4) Is this application hopelessly screwed up, should Dan/John attempt to amend? NOT ‘AMEND’, IN MY VIEW, UNLESS YOU FEEL STRONGLY COMPELLED OTHERWISE. THE COST AND HASSLE MIGHT OUTSTRIP THE BENEFIT. CORRECTIVE FILINGS COST MORE AND ARE MORE COMPLICATED THAN NEW FILINGS.
HOWEVER, YOU MIGHT WANT TO DRAFT UP A NEW PROPOSED FILING, AND FORWARD IT TO ME BY FAX FOR COMMENT. YOU COULD THEREBY REGISTER THE MOST CURRENT VERSION OF THE SCRIPT, AND AT LEAST PUT ONE DOCUMENT ON FILE WHICH, WHEN TAKEN TOGETHER WITH THE PRIOR FILING, CORRECTS ALL PERCEIVED ERRORS, AND MAKES ALL NEEDED UPDATES IF ANY.
2.*** Dan will complete a revised and final version of the script, draft an new application and forward it to John for comment.
3. (from 188.8.131.52.1) Dan is not sure why this redundancy is a problem. IT’S NOT A HUGE PROBLEM, BUT IT COULD BE A PROBLEM FROM A PERCEPTION STANDPOINT – FOR EXAMPLE, PERCEIVED AS AT ODDS TO THAT WITH WHICH MOST DISTRIBUTORS (AND DISTRIBUTOR COUNSEL) ARE ACCUSTOMED, WHEN SEEING A TEXTUAL COPYRIGHT NOTICE.
YOU WANT YOUR COPYRIGHT NOTICES TO BE PERFECTLY ACCURATE AND PROTECTIVE – BUT ALSO AS BORING, CONVENTIONAL, AND UN-REMARKABLE AS AT ALL POSSIBLE. YOU SHOULD KILL THE REDUNDANCY.
4.*** Dan understands and agrees
5. (from 184.108.40.206.1) Dan understands and agrees.
OK, BUT ALSO PROVIDE ME A LIST OF ANY ADDITIONAL WRITERS IF ANY.
6.*** Dan is the sole author of the script.
7. (from 16.5.1) Dan understands, though a dated cover letter could be created after the fact.
I SUPPOSE, BUT I COULDN’T THEN PARTICIPATE IN ANY ACTIVITY RELATING TO IT.
8.*** Yes of course, the point is that a dated cover letter is not authenticated by a third party and therefor wouldn’t it be less credible than a postmarked proof of mailing from the USPS, a canceled check from a bank, etc.? A dated cover letter could be printed up anytime, anywhere. What does it prove really? Dan grasps the concept, but it would seem to carry the same weight as private memoranda saved in a plain text file on a hard drive. There’s no possible way to authenticate the date of creation.
9. (from 16.5.2) There is a photcopy of the check. Could the canceled check or photocopy of same be dispositive?
DISPOSITIVE, BUT ON A DIFFERENT ISSUE. PLEASE DO COPY ME ON THE CANCELED CHECK WHEN YOU GET IT, THOUGH.
11. (from 16.5.3) Dan *may* have the certificate of mailing receipt from the USPS with the cancellation mark.
DON’T GO CRAZY RUMMAGING FOR IT, BUT IF AVAILABLE I’D LIKE A COPY FOR THE FILE. NEXT TIME, THE DATED COVER LETTER WILL DO ALL OF THIS WORK FOR YOU, AND YOU CAN KEEP IT ON YOUR HARD DRIVE FOR EASY RE-PRINTING. (THAT’S WHAT I DO).
12.*** Dan’s point exactly! Dan understands and agrees, but persists in the belief that third party authentication like hard copy reciepts and canceled checks are also important and perhaps more credible than computer files on a hard drive. Dan also recognizes that John is the lawyer.
13. (from 16.11.3) The estate and/or literary agents of author Philip K Dick whose name is mentioned in the script (along with the titles of two of his novels) could claim contribution eventhough the script is not based on any of his works. WELL, NAME USE ALONE CAN ENGENDER A CLAIM, E.G. UNDER NY CIVIL RIGHTS LAW SECTIONS 50/51.
I ONCE HAD TO DEFEND AGAINST A CLAIM BY A FOLK/ROCK SINGER, OVER CITATION OF HER NAME IN THE DVD ALONE. (WHAT SHE REALLY WANTED BY WAY OF RECOMPENSE WAS A COPY OF THE DVD, SO IT WAS GIVEN TO HER, AND SHE WITHDREW THE CLAIM THEREAFTER AS I WAS TOLD). I’M NOT SAYING A CLAIM FOR INCIDENTAL NAME USE ALONE WOULD LIKELY PREVAIL – IT MIGHT NOT, DEPENDING ON CIRCUMSTANCES – BUT ON THE OTHER HAND, I’D STAY AWAY FROM NAMING KNOWN CAREER-PLAINTIFFS LIKE S. KING AND M. JAGGER, AT MINIMUM. The idea of God’s child being born to a human woman is a central theme in the two novels mentioned in the script, but then then that’s true of the new testament also which was not mentioned. IMMACULATE CONCEPTION COMMONALITY, I’M NOT WORRIED ABOUT.
BUT IF COPYRIGHTABLE DETAIL FROM EITHER OR BOTH DICK NOVELS, WAS USED IN THE SCRIPT OR FILM, THEN YOUR COMPANY MIGHT HAVE A PROBLEM.
14.*** The script for ‘Daughter of God’ is totally original to Dan. The name of author Philip K Dick is mentioned along with two of his book titles, but the script is not based on his work.
15. I’D NEED TO DO A SIDE-BY-SIDE READING AND COMPARISON OF THE 3 WEEKS TO HAVE ANY BASIS FOR OPINION ON THIS. Since John has not flagged this, DON’T ASSUME THAT. IT WASN’T POSED TO ME AS AN ISSUE OR POTENTIAL ISSUE BEFORE THIS E-MAIL.
16.*** Dan assumes “weeks” should have been “works”. Dan apologizes for not pointing out the mention of “Dick” earlier.
17. WHAT YOU HAVE NOT DONE, IS ASKED ME TO REVIEW THE SCRIPT (OR FOOTAGE) AND MEMO YOU ON ALL CLEARANCE PROBLEMS THAT MIGHT EXIST WITHIN IT. FOR THAT
MATTER, IF YOU WERE TO DO SO, IT COULD TURN OUT TO BE WASTE OR AT LEAST DUPLICATION OF EXPENDITURE BY YOU, SINCE A DISTRIBUTOR OR STUDIO MIGHT
SPECIFICALLY REQUIRE THE SAME TYPE OF REPORT BUT INSTEAD PENNED BY A ‘DEFOREST, MARSHALL PLUMB OR THOMSON & THOMSON’. IN OTHER WORDS, CHAIN OF
TITLE IS ONE THING, SCRIPT CLEARANCE IS SOMETHING DIFFERENT – AND I HAVE REASON TO BELIEVE YOU’RE GOING TO WANT TO GAUGE POSSIBLE DISTRIBUTION OR INSURANCE REQUIREMENTS BEFORE YOU DECIDE HOW YOU MIGHT HAVE TO ‘CLEAR’ THE SCRIPT.
18.*** Dan will handle script clearance later. John should focus on chain of title, keeping Dan informed of other concerns as they arise.
19. AND MY PRESUMPTION ON ALL THIS WAS EXACTLY OTHERWISE. AFTER ALL, IN THE COPYRIGHT REGISTRATION, YOU CERTIFIED TO A U.S. GOVERNMENTAL AUTHORITY
(UNDER A PENALTY OF PERJURY EQUIVALENT) THAT THE FILED WORK WAS WHOLLY ORIGINAL TO YOU. I DIDN’T SEE YOU EXPRESSLY CARVE OUT ANY DICK MATERIAL IN THE COPYRIGHT REGISTRATION – AND KEEP IN MIND THAT THERE IS A SECTION OF THE FORM WITHIN WHICH TO DO SO. Dan assumes the mention of Dick’s name and book titles could be considered fair use. SEE ABOVE. NEITHER ARE REALLY ‘FAIR USE’ ISSUES.
20.*** Is John asserting that the mere inclusion of popular names and book titles constitutes co-authorship of copyrightable material? Is John further asserting the copyright application for the DOG script is invalid? If so can the copyright be repaired in an updated filing as discussed earlier?
21. A BOOK TITLE, HOWEVER, IS IF ANYTHING A TRADEMARK ISSUE.
22.*** There are live no trademarks on TARR for either PKD book title.
23. AND A PERSON’S NAME IS, IF ANYTHING, A NAME AND LIKENESS/RIGHT OF PRIVACY/RIGHT OF PUBLICITY ISSUE.
24. *** These rights could be cleared with the legal stewards of Dick’s name and work. Can John advise on an effective proceedure for submitting the script or video for permission?
25. SO BE CAREFUL NOT TO MIX THE THREE CONCEPTS TOGETHER.
26.*** Dan understands the concepts are different, but this doesn’t clarify the situation. Interpretation – It’s possible that the mention IS fair use, but this will not keep the project out of litigation.
27. THE BOTTOM LINE IS, IF YOU RUN A DEFOREST/MARSHALL PLUMB/THOMSON & THOMSON REPORT ON THE SCRIPT, THE SERVICE WILL LIKELY FLAG ALL ‘CLEARANCE’ ISSUES
THEREIN, AND WILL LIKELY FLAG THE DICK TITLES AND THE DICK NAME AS POSSIBLE CLEARANCE ISSUES.
MANY DISTRIBUTORS REQUIRE SUCH A WRITTEN CLEARANCE REPORT, AS A PRECONDITION TO DOING THE DEAL. SOMETIMES IT?S INCLUDED IN THE CHAIN OF TITLE REQUEST IN THE DRAFT PROPOSED DISTRIBUTION AGREEMENT.
BUT THE REAL ISSUE IS WHAT THE ERRORS AND OMISSIONS (E&O) INSURANCE CARRIER DOES, ASSUMING THE PICTURE IS OR NEEDS TO BE INSURED. THE CARRIER USUALLY ALSO REQUIRES THE WRITTEN CLEARANCE REPORT. THE CARRIER OFTEN ENDS UP DRIVING YOUR CLEARANCE (AND SOMETIMES THEREFORE, EDITING) DECISIONS.
IN OTHER WORDS, IF THE CARRIER ENDS UP SAYING ‘NO DICK’, THEN THE ANSWER WILL IN LIKELIHOOD BE ‘NO DICK’, AS A PRACTICAL MATTER.
28.*** All the more reason to explore formally clearing the use of Dick’s name, if feasible.
6. √ Immigration
1. (from 9.4) Since immigration isn’t John’s responsibility it’s not clear why John wants the H2B application and rejection but a copy will be forwarded. TO COMPLETE AND ROUND OUT THE FILE, AND POSSIBLY TO HELP INTERPRET WHAT IS ALREADY ON FILE. BETTER THAT I FILTER, THAN YOU.
2.*** Dan understands and agrees. Basically the H2B process was halted when proof was requested that the job was offered to americans. Dan cast Carmen Althaus because she matched his vision of the character, it did not make sense to document a bogus search for American talent when Dan had no intention of casting anyone else. Also, there was no way to be sure that an H2B visa would definitely be granted. Moving the project to Canada mde it possible to immediately begin scheduling resources and contractors. H2B files are included.
3. (from 9.5.1) Interpretation – Immigration trouble would not target the project specifically. Immigration authorities would not move to halt production or block distribution of a project incorporating illegal workers, but would prosecute the entity responsible for the project. OR PERHAPS THEY WOULD BLOW THROUGH THE ENTITY AND SEEK INDIVIDUALS (OR AN INDIVIDUAL’S) LIABILITY AND ACCOUNTABILITY INSTEAD. A CORPORATE VEIL DOESN’T MEAN MUCH TO THE TAX, IMMIGRATION, AND OTHER FEDERAL AUTHORITIES. SCARY, BUT TRUE.
4.*** Dan understands and agrees.
5. (14.1.1) John – “Query if ‘Employer’ / ‘Employee’ language could possibly undermine the independent contractor characterization. (It could, in the US)
1. Who can clarify – Canadian officials? What sort of attorney and from what jurisdiction could render an authoritative opinion? PROBABLY CANADIAN COUNSEL. BUT THE THING IS, I DOUBT THE AUTHORITIES ARE GOING TO CHANGE THEIR FORMS SIMPLY BECAUSE THEY CAUSE CONFLICT WITH U.S. PRESUMPTIONS AND U.S. I.P. LAW. I DON’T THINK ANY INDIVIDUAL WILL LIKELY HAVE THE LEVERAGE TO MAKE THE AUTHORITIES VERSION OR CUSTOMIZE THEIR FORMS SPECIFICALLY FOR THE INDIVIDUAL. I JUST WANT YOU TO BE AWARE OF THIS TEXT AND ITS ARGUABLE POSSIBLE IMPLICATIONS FOR NEXT TIME. YOU MAY NEED TO PAPER AROUND THEM AS BEST AS POSSIBLE IN SOME FASHION.
2.*** Dan understands and agrees. Our documentation and future contracts define the project relationships. It’s about whether Canadian law allows foriegn companies working in Canada to hire contractors as opposed to employees. If Canada does allow this and the appropriate documentation in conformance with Canadian law is present, then probably the labels on the work permits are irrelevant. Dan will look into conforming with Canadian law in regards to contractors, taxes and related reporting.
7. √ Contracts
1. (from 11.2) Steve receives additional payment equal to the value of Carmen’s plane ticket so that actors are equally compensated. OK, REMIND ME PLEASE OF THE DOLLAR FIGURE VALUE OF THE PLANE TICKET?
2.*** $646 US – it’s on the agreements.
3. (from 11.3.2) “yikes” is kind of vague feedback. What’s the issue? IT’S BETTER THAN AN EXPLETIVE. ‘CREDIT, FULL CARD’ SOUNDS FAIRLY OPEN-ENDED ON SOME ISSUE, AND PROBABLY ITSELF TOO VAGUE TO INTERPRET CONTRACTUALLY – SORT OF LIKE ‘YIKES’.
WHAT DID IT MEAN? WHAT WAS ACTUALLY INTENDED? (HOW WOULD YOU EXPLAIN IT TO A NON-FILM-INDUSTRY DUMB JUROR – YOUR ULTIMATE POTENTIAL AUDIENCE FOR CONTRACTUAL DOCUMENTS, BY THE WAY).
4.*** thanks for clarifying that “yikes”. The juror point is well taken. “Full card” means the actor’s name will appear on screen alone or possibly associated with the name of the character they portrayed, in a font large enough and for a period long enough to be easily read. More specifically, a font size no less than 5% of screen height at a 3:4 aspect ratio and for a duration of at least 3 seconds, not including dissolve time if any.