Legal FAQ

Q: What is a trademark?
A: A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the USPTO.

Q: Why are trademarks valuable?
A: Trademarks are valuable to both the manufacturers and merchants who produce and sell products and services (the business side), and to the consumers who buy them (the customer side). On the business side, trademarks are important because businesses invest a lot of money, time and effort into developing a particular name for their goods and services that consumers will recognize and purchase over and over again. When this happens, the product has developed a good commercial reputation among consumers, also known as consumer “good will.” Once developed, consumer good will becomes a valuable asset of your business, which you must protect as you would any physical assets, such as your equipment. On the customer side, trademarks are valuable since they protect customers from any confusion that may arise if companies were allowed to use the marks of other trademark owners. They also allow customers to have an understanding of and rely on the quality of the particular product they are purchasing, and to avoid purchasing a product they do not want. For example, consumers of a popular, well-known product know what quality and value they will be getting for their money before they purchase it.

Q: What is a copyright?
A: Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or sound recordings of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

Q: What things are copyrightable?
A: The copyright protects the form of expression rather than the subject matter of the writing. Copyright does not prevent another creator from independently producing the same or similar creation. Two examples that may help clarify what this means are: If 100 people were to sit down to draw, and two of these people created the same or a similar drawing, this would not constitute copyright infringement. If you were to sit in your lounger tonight and think of a great idea for a movie, but you did not write anything down or put your idea into a fixed tangible medium of any sort.  Then a year later, you saw a movie that was identical to the movie you dreamed up a year ago, this would not constitute copyright infringement. 

Q:  When do I have a Copyright?
A:  The moment you put your idea into a fixed medium.  However, if someone were to infringe upon your Copyright, you cannot sue or get an injunction until you have registered your idea in its fixed medium with the Library of Congress (Copyright Office).  You should always submit your work with the Copyright Office before pitching your idea to anyone other than your attorney who is required to keep your confidence.

 Q:  I have submitted my script with the Writers Guild; do I still need a Copyright?
A:  YES!  Submitting your script with the Writers Guild does not allow you to sue or to seek an injunction in a court of law without having your work registered with the Library of Congress (Copyright Office.)   In fact, the only protection you receive by having your work submitted to the Writers Guild is that the date stamp on mailing serves as proof of the date your work was in fixed form.  You can accomplish the same thing by mailing the work to yourself.  However, neither mailing nor submission to the Writers Guild grants a registered copyright. FACT:  Many filmmakers believe that if they are just raising money from friends and family that securities laws do not pertain to them.  This is wrong!  A securities offering memorandum (or disclosure document commonly referred to as a “Private Placement Memorandum or PPM”) is required to raise money from investors outside of your family no matter how small the amount involved.  Full disclosure is required under the securities laws and notice filings are required by the Federal Securities and Exchange Commission (the “SEC”) and by the laws of each state in which investors reside.  Violations of the SEC requirements and the applicable state securities laws carry both criminal and civil penalties.

Q: I have given my investors a business plan, so do I still need a private
placement memorandum?

A: YES!  A business plan and a securities offering memo serve very different functions.  A business plan is a marketing document created from a selling point of view, which necessarily contains optimistic information, forward-looking statements, hopes and dreams, and possibly financial projections. A securities offering memo, on the other hand, is a full disclosure document, which must contain all the bad news, risks, and must list and comment upon all possibilities that could go wrong so that each investor is fully aware of the risks involved. 

Q:Do I need copyright clearance and permission for music soundtrack if
I am using it on an independent film for festivals only?

A: Yes, you do need permission. There is not an exemption in copyright law for film festivals.  However, many rights holders are willing to give a limited license for such use for free or a nominal fee.  It is best to negotiate a step deal where you pay according to how extensive your distribution is. This might entail a small payment for the right to use the music in a film for festivals, and larger sums if the film is released theatrically or broadcasted on television. 

Q: What is a patent?
A: A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available.

Q: What is Mediation?
A: Click here to learn about Mediation.