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[6]-Copy right in Characters
[?]-Screenplay Acquisition
[a]-WGA "Blueprint" for Screenplay Acquisition
[b]-Writer Deal Memos
[c]-Separated Rights: Publication and T heater Rights Retained by Screenwriters
[d]- Passive Income
[e]- Non-WGA Agreements
§ 1.04 Film Financing and Net Profits
[1]-Revenue Phases
[a]- Box Office Revenue Re tained by Theaters
[b]- Revenue Retained by the Distributor
[c]- Gross Revenues Received by the Studio or Production Company
[d]-Net P rofits
[2]-Sources of Film Financing
[a]-Studio Financing
[i]-Studio as Financier
[ii]-Production-Financing-Distribution (PFD ) Agreements
[b]- Pre-Sales and Lender Financing
[c]-Negative P ick-Up
[d]-Gap Financing
[e]- I nvestor or "Equity" Financing
[i]-Private Placement Offerings Under SEC Regula tion D
[ii]-Formation of a Production Corporation or Limi ted Liabili ty Company
[iii]-Crowdfunding
[fJ-Co- Financing
[g]-Slate Financing
[h]-Completion Guarantee
[i]- Assumption of Union and Guild Contractual Obligations
[3]-State Tax Incentives
[4]-Profit Participation
[a]-Net Profit Definitions
[b]-Alternatives to Net Profit Participation
[i]-Deferred Compensation
[ii]-Box Office Bonuses
§1.05 Agreements with Talent
§1.06 Loan-Out Corporations and Letters of Inducement
§1.07 Preliminary Verbal Agreements
§ 1.08 Written Agreements
[1]- Directors
[a]-The DGA
[b]- Leading Cases Involving Directors' Righ ts [i]-Authorship Rights Under the Copyright Act and the Lanham Act [ii]-The Ownership and Scope of Uses of a Director's Film [iii]-Excessive Edits by a Studio and the Director 's Screen Credits
[iv]-DGA Enforcemen t of the Bargaining Agreement
[2J-Actors
[a]-SAG-AF TRA Global Rule One
[b]-T aft Hartley Act
[c]- T he Seven Year Rule
[d]-Contractual Disputes With Talent
[3J-Child Actors
[a]-Court Approval of E ntertainment Contracts with Minors
[b]-Coogan Accounts
[c]-Child Labor Laws Applicable to the Film I ndustry
[4J-Animals
[SJ-Screen Credits
[a]-"Written by" (Writer Credits)
[b]- "Directed by" (Director Credit)
[c]-" P roduced by" (Producer Credit)
[d]-" Executive Producer" Credits
[e]-Actor Credits
§1.09 Residuals and Foreign Levies
[1J-Residuals
[2J-Foreign Levies and Foreign Royalties Payable Directly to Creators
§1.10 Agreements with Production Crew
§1.11 Music in Film and Television
[1J- Licensing
[a]-Master License for Sound Recordings
[b]-Synchronization or "Sync" License for the Musical Composition
[c]- Production Libraries
[2J- Commissioned Scores
§1.12 Production Issues
[1J-Budgeting
§1.13 Distribution Agreements
[1]-Independent Films and the Role of Film Festivals
[2]-Theatrical Distribution
[3]-Sales Agency
[4]-0verseas Television Distribution of Independent Films
§1.14 Representation of Talent
[1]-Talent Agents
[a]- Agency Packaging
[b]-Ca lifornia Labor Commissioner Jurisdiction for Di sputes Under the TAA
[c]-SAG- AFTRA and Agency Agreements
[d]- New York Regulation of Talent Agents
[2]-Personal Managers
[a]- Personal Management Agreement Deal Points
[b]- The SAG-AF TRA Personal Manager Code of Ethics and Conduct
§ 1.15 [1] Appendix: The Film Production Pyramid
§1.16 [2] Appendix: Copyright Fair Use Fundamentals for the Film Industry
§ 1.17 [3] Appendix: Copyright Ownership Fundamentals Including Works Made for Hire and Co-ownership
[1]-0wnership by the Author or Authors is Automatic upon Creation
[2]-Works Made for Hire
[a]-Works by an Employee
[b]-Specialty Ordered or Commissioned Works
[i]-Agreements for Specially Commissioned Works Made for Hi re [ii]-California Labor Code§ 3351.5
[c]- Work Made for H ire Status for Freelance Contractors Under the 1909 Copyright Act Compared to Under the 1976 Act
[3]-Co-Ownership
§ 1.18 [4] Appendix - Duration of Copyright
[1]-Works Published Prior to January 1, 1978 That Are Not Works Made for Hire
[a]- The Firs t T erm and the Renewal Terms T otaling Fifty-Six Years
[b]- The Nineteen-Year Extension
[c]- The Twen ty- Year Ex tension
[d]-Works Created but Not P ublished as of J anuary 1, 1978
[2]-Works Created On or After January 1, 1978 Other Than Works Made for Hire
[3]-Works Made for Hire
[4]-Renewal
[5]-The Public Domain
[a]- Expiration of Copyright P rotection
[i]-Pos t-1978 Works
[ii]-Pre-1978 Works
[b]- Publication Withou t Notice P rior to 1989
[c]-Co pyright Res toration for Certain Foreign Works
CHAPTER 2 TELEVISION
§2.01 Television: Introduction and Overview
§2.02 Terrestrial Broadcast and The Original Big Three Networks
[1]-Network Technology Platforms
[2]-N etwork Busines s Models [3]-N
§2.03 Cable and Satellite: Multichannel Video
[2]-MVPD
[3]-MVPD Broadband Services
[4]-MVPD Production Bus iness Models for Cable Network s
§2.04 Internet and Mobile Platforms Offering Subscription Video On Demand (SVOD)
[1]- SVOD Technology Platforms
[2]- SVO D Internet Platform Busine ss Models
[3]-SVO
§2.05
[4]-Sy
§2.06 The Financial Interest and Syndication (''Fin-Syn'') Consent Decrees Era 1970-1995
§2.07 Traditional Network Production Agreements
§2.08 SVOD Business Models
§2.09 SVOD Production and Talent Guilds
§2.10 Public Broadcasting
§2.11 FCC Regulation of Broadcasters
§2.12 Advertising and Ratings
§2.13
§2.14
§2.15
(MVPD)
§2.16 Deficit Financing of Episodic Television
§2.17 Unscripted ''Reality Television''
[1] -Format Rights and Production Issues in '' Reality Telev ision ''
[2]-Unscripted Television Participant Agreements
[3] -The Scope and Enforceability of Participant Releases in Reality Television
[4]-Child Labor Laws in the Reality Telev ision Industry
§2.18 Event Programming
§2.19 Time-Buy Programming
§2.20 Online Fan Fiction Video Productions
§2.21 Television Series Showrunner Agreements
CHAPTER 3
BOOK AND MAGAZINE PUBLISHING
§3.01 Introduction: Publishing, Technology, and the Law
§3.02 Book Publishing Agreements
[1]- Introduction
[2]-The Operative Grant
[a]- Exclusive License or Assignment of Copyright
[b]-Works Made for H ire
[c]-Book Formats
[3]-The Work Defined
[4]-Territories
[SJ-Term [6]-Advance
[9]-Publication
[10]-Promotion
[11]-Author Copies
[12]-Copyright and Credits
[13]- Royalties
[a]- Dome stic Royalties
[b]- Foreign Royalties
[14]-Subsidiary Rights
[a]-Rights Granted to the Publisher
[b]- Rights Reserved by Author
[15]-Audio Rights
[16] Use of Third- Party Materials
[17] Statements of Account and Audit Rights
[18]-Competitive Works
[19] Next Publication Option
[20] Inserts , Back-of-Book Advertising
[21] Remainders
[22] Out of Print and Reversion
[23] Warranties and Indemnification
[24] Agency
[25] Ghostwriters
§3.03 Self-Publishing and ''Vanity Press'' Agreements
§3.04 Acquisition of Author Rights in Magazine and Newspaper Publishing
§3.05 Translations and Other Overseas Rights
§3.06 Agreements Between Authors and Literary Agents
[1]-Scope of Representation
[2]-Term
[3]-Commission
[4]-Disbursements
[5]- Expenses
[6]-Powers of the Agent and Communications
[?]-Accounting, Statements, and Audits
[SJ-Termination
[9]-Dispute Resolution
§3.07 Copyright in Quotes and Journalistic Interviews
CHAPTER 4
MUSIC
§4.01 Introduction
§4.02 Copyright Ownership in the Music Industry
[1]-The Underlying Musical Composition
[2]-The Sound Recording
§4.03 The Six Exclusive Rights Under Copyright
[1]- Reproduction
[2]-Derivative Works
[a]-
[3] -Distribution
[4]-Public
[a]-Performing
[b]-Types
[fJ-
[h]-Foreign
[i]-ASCA
[j]-Assignment
[b]-Types
[7]-
§4.04 Mapping the Copyright Coordinates
§4.05 Mechanical Licensing
[1]-Digital Distribution and Mechanical s
[a]- Digital Phonorecord Deliveries
[b]- Limited or "Tethered" Downloads
[c ]-Streaming
[d]-On- Demand or Interactive Streaming
[e]- Ringtones
[fJ-New Categories of Online Services
[2]-Licensing Procedures
[3] -lmportation
[4]-Broadcast Mechanical s Paid Outs ide the United States
§4.06 Synchronization (''Sync'') License
[1]-Sy nchroni zation Li ce n s in g St ep s
[a]- Identify the Publisher
[b]-Sync Licensing Concepts from the Publisher's Perspective
[i]-Promotional Value
[ii]- Related Performing Rights Income
[iii]-Scope of Use
[iv]-Step Deals
[v]-Author Approvals
[vi]-Most Favored Nations
[vii]-Cue Sheets
[viii]-N on-Exclusivity
[ix]-Credits
[x]-License Fees
§4.07 Ephemeral Rights
[1]-Te lev i s ion Bro a dc as t s
[2]-Di g it al Tr a n s mi ss ion of Mu s i c
§4.08 Master License for the Sound Recording
§4.09 Noncommercial Broadcasting
§4.10 Production Music for Film and Television
§4.11 Commissioned Music
§4.12 Recording Agreements
[1]-Rec ordin g A g re e ment Ov erview
[a]-Exclusive Services
[b]-Copyright
[i]-Work Made for H ire Status of Sound Recordings
[ii]-New Technologies and Digital Rights
[c]- T erm
[d]-Delivery and Approval
[e]-Option Periods
[fJ-Recording Fund and Recoupable Advances
[g]-Release Commitment
[h]-Name and Likeness, Coupling, Trademarks, and Merchandise
[i]-Royalties
[j]-Deductions, "Cross Collateralization," and Other Expenses
[k]- P roducer Royalties
[!]-Sampling
[m]-Mechanical Royalties: Controlled Compositions
[n]-Videos and Touring
[o]-Licensing Approvals
[p]-Audit Rights
[q]- T ermination, Suspension, Reversion of Rights
[r]-Recording Agreement Negotiation
[s]-Other Models for Recording Agreements
[t]-A Note on Recording Studios
[u]-Qual ity Control
[v]- Reserve Accounts
[2] Distinctions Between Featured and Nonfeatured Artists
[3] Production Agreements
[4] ''Brick and Mortar' ' Retailing
[5] Digital Distribution and Security Measures
§4.13 Music Publishing Agreements
[1] Categories of Music Publi s hing Income
[a]- P erforming Rights
[b]- M echanicals, Including Ring Tones
[c]-Synchronization
[d]-Grand Rights
[e]-Printed Music
[fJ-Digital «catchall"
[g]- P ermissions, I ncluding U ses of Lyrics
[h]- Rental of Orchestral Materials
[i]-Agent and Sub-Publisher Fees, Deductions and «At Source" Accounting
[2] Co-Publi s hing Agreement s
[3] Music Publishing Administration A g reements
§4.14
Personal Managers and Talent Agents
[1] Pers onal Management Agreement s
[a]- T erm and T erritory
[b]-Services
[c]-Authority of M anager
[d]-Artist' s U ndertakings and Warranties
[e]-Manager's Commission
[fJ-Expenses
[g]-Accounting
[h]-«Not an Agent" Notice
[2] Tal e nt Agency Agreement s
[3] Care e r Management Strategies
§4.15 Concert Performance and Touring
[1] Concert Performance Agreements
[a]-Engagement and Compensation
[b]- M erchandising
[c]-Sponsorships
[d]-Artist Responsibilities
[e]-Promoter's Responsibilities
[fJ-Cancellation
[g]-Audiovisual or Other Recording
[h]-Box Office and T icket Audits
[i]-Complimentary Tickets
[j]-Promoter's Representative
[k]-Schedules, Transportation, and Accommodation
[l]- Dressing Rooms and Catering
[m]-Ticket Surcharges
[2]-Merchandi s e
§4.16 Unions and Guilds
[1]-The American Federation of Mu s ician s (AFM )
[2]-SAG-AFTRA
[3]-The American Guild of Mu s ical Arti s t s (AG MA)
§4.17 Considerations for Musicians: Co-Ownership and Band Agreements
[1]-Copy ri g ht Co-O w nership of Musical Works
[2]-Bus ine ss Con s ideration s for Groups
[a]- Divisio n of Income
[b]-Group Name and Trademark Rights
[c]- Decision Making
§4.18 YouTube
§4.19 Independent Distribution on Streaming Services
§5.01 Live Theater
[1]-Union s and C olle c tiv e Bargaining
[2]-Broadw
[a]-
[b]- T he
[c]- T he Royalty Pool
[i]- Net P rofits After Recoupmen t
[ii]-Motion Pic ture Adap tat ions of Stage Works and Musicals
[d]-Side Letters
[3]-Ti c ket Service Fees
CHAPTER 6
§6.01 Introduction
§6.02 Radio Formats
§6.03 Considerations Regarding ''Live'' Radio and On-Air Personalities
§6.04
§6.05 Music Licensing in the
[1 ]-Governmental and Court Regulation of Mass Media
[2]-Two Separate Copyrights in Every Song
[3]-Terrestrial Radio: Industry-Wide Negotiation of License Fee Rates
[4]-The Digital Performance Right for Sound Recordings
[SJ-Types of DR Services: Non-Interactive or Interactive
[6]-The '' Pureplay Settlement ''
[7]-DR Services and Songwriters
[8]-The Fee Rate Status Quo
[9]-Legislative Initiativ es Regarding Radio and Music Licensing
[10]-Digital Licensing Maneuvers by the Music and Radio Industries
[11]-Artist Response
[12]-0ther Royalty Consequences for Songwriters and Artists
[13]- Pre-1972 Sound Recordings
CHAPTER 7
CELEBRITY RIGHTS OF PUBLICITY AND PRIVACY
[1
[a]-"
[i]- L iability U nder New York's " Right of P rivacy" P rovis i on
[ii]- Damages and I nju n ctive Relief for P rivacy Violations
[iii]- Exceptio11s
[cl- Judicial Recognition of the Right of P ublicity
[d]- Z acc hin i v. Scri pps- Howard Broadcasting Co
[e]- Rig h t of P ublicity as a D istinct P roperty Right
[fJ-California Rig h t Of P ub licity Statute
[i]- In
[ii]-
[ii]- D amages
[iii]- Exceptions
[iv]- T estamentary D ispos ition and T ransferability of the Ri ght; Intestate
[v]- Registrat i on of Claims; Searching for Claims
[vi]-Seventy Years P ost- M ortem
[vii]- D eceased P ersonality Defi n ed
[vii i]- Identificat i on
[ix]-Secondary L iability for M
[x]- Remedies
[2]-Jurisdiction , Venue , and Choice of Law
§7 .03 Related State and Federal Causes Of Action
[1]-Lanham Act Claims
[a]-False E ndorsement and False Advertising
[b]- Trademark I nfringement
[2]-First Amendment Defenses
[a]-Commercial Speech
[b]-Noncommercial Speech
[3]-Fair Use in Creative and Artistic Works
[4]-Fair Use Under the Lanham Act
[a]-Classic Fair Use
[b]- Nominative Fair U se
[SJ-Copyright Preemption
[6]-Common-Law Causes of Action Under Restatement (Second) of Torts
and Restatement (Third) of Unfair Competition
[7]- Liability for Deceptive Advertising Under the Federal Trade Commission Act '' Infomercials ''
[8]-Food and Drug Administration (FDA) Regulation of Celebrity Drug Advertising
§7 .04 Leading Right of Publicity Cases
[1]-Contours and Expansion of the Right of Publicity
[a]-Evocation of Personas or Nicknames
[b]-Look-Alikes
[c]-Sound-Alikes and Sound Recordings
[d]- The Expansion Of "Identity"
[e]- Imitations of Celebrity P erformances
[fJ- Ti tles of Movies and Songs
[g]- Motion Picture Advertising
[h]- Parody Comic Books, Caricatures, and Baseball Cards
[i]-Sports
[j]-Merchandise Catalogs
[k]-Statements and P hotos on Magazine Covers
[l]- Tabloid Newspapers
[m]-Editorial Content and Advertising of Editorial Content
[n]-Computer Games
§7 .05 Celebrity Privacy
[1]-Tort Actions for Intrusion into Private Matters
[2]-California's ''Anti-Papara zz i Statute''
[a]- Physical I nvasion of Privac y
[b]-Constructive Invasion of Privacy
[c]-Assault
[d]-Damages and Disgorgement
[e]- Furtl1er Provisions
[3]-Celebrity Stalkers
§7 .06
[a]-New York's Anti-Stalker Statute
[b]-California's Anti-S talker Statute
[i]- A Pattern of Conduct to Follow, Alarm, or H arass
[ii]- Plaintiff s Reasonable Fear for Their Safety
[iii]-C redible T hreats made After a Cease Demand; or Violation of Restraining Order
[iv]-Damages
[v]- Rights Cumulative
[vi]- Exceptions for Constitutionally Protected Ac
[c]-Use of Copyright and Contract Law to Control Adverse Publicity
[d]-Statutes Forbidding Pos t ing of Private Ph otos
[1]-Grant of
[21 ]-Non-Compete Clause
and Representations:
CHAPTER 8
CYBERLAW
§8.01 Introduction
§8.02 The Digital Millennium Copyright Act
[1]-The Safe Harbor
[2]-Eligibility for the Safe Harbor
[a]- Reasonably Implemen ted Polic y to Terminate Repeat Offenders
[b]- ISP Must Not Have Ac tua l or "Red Flag" Know ledge or Control of, or Financial Benefi t from Infringement
[3]-Take Down Notice
[4]-Designated Agent
[SJ-Cases Where the DMCA Safe Harbor Held Not Applicable
[a]-Websites T hat Fail to Meet the Requirements of the DMCA Safe Harbor
[b ]-Websites That Do Not Qualify as I nternet Service P roviders
[6]-Voluntary Cooperation and New Technological Measures in Addition to the DMCA
[?]-Secondary Liability for Online Trademark Infringement
§8.03 Anti-Cybersquatting Consumer Protection Act
§8.04 Domain Names
[1]-Domain Name Registration
[a]- ICANN
[b]- Domain Regis tr ies
[c]- Registrars
[d]- T he Registrant
[e]-Th e H ost Server
[fJ-Whois
[2]-The Uniform Domain Name Dispute Resolution Policy (UDRP)
§8.05
FIL
§1.01 Introduction
As the Second Circuit has observed, " Filmmaking i s a col l aborative process typically involving artistic contributions from large numbers of peop l e, including-in addit i on to producers, director s, and screen-writers-actors, designers , cinematographers , camera operators , and a host of ski l led technical contributors." 1 Film is an enormously collaborativ e medium , more akin to a military general assembling and commanding an army than any other art form. Because filmmaking is a quasi-industrial endeavor, the creative vision of a few key people must be supported by a virtual army of technicians, craftspeop l e , marketers , financiers , and bookkeepers. An entertainment lawyer whose practice includes film may find a need to be conversant in several areas of the law, inc luding:
• Intellectual Property Law: for the acquisition of underlying rights , and the protection of the IP embodied in the fi l m , including copyright and trademarks;
• Business and Finance /Securities: for t h e successful acqui s ition of funding and investment for the project and the required accountings;
• Labor and Employment : for the personal services agreements for cast and crew, and for working with trade un i ons, guilds, and collective bargaining entities in the film industry;
• Agency: for dealing with the roles of agents and managers who represent actors, d i rectors , and • writers;
• Insurance: for advising on insurance coverage requirements in the film industry;
• Advertising: for advising on marketing and promotion , includ i ng celebrity rights of pub l icity, and product placement , tie-ins consisting of advertising the film in conjunction with other companies , and related advertising issues;
• Corporate Law: for dealing with formation of business entities;
• Contract Law: for reducing a l l of the above to operative agreements.
1 See 16 Casa Duse, LLC v. Merkin , 791 F.3d 247, 258 (2d Cir. 2015 )
This chapter will present a practica l , chronologica l approach to the various tasks that an entertainment lawyer will likely encounter, from initial conception of a project to its completion, distribution, market i ng, and financial accounting, both for motion pictures, and for te l evi sion projects
§1.02 The Life Cycle of a Film
[1]-Production
The life cycle of a film, from initial concept to completion and distribution, can span many years during which the producer wil l have many creative and business tasks to accomplish to complete a motion picture and ach i eve distribution to the public. A helpful visual aid describing the creative and business s teps that must be climbed wi l l be found as an Appendix to this Chapter (§ 1:15 [1] , " The Film Production Pyramid ".
[a]-Development
The initial creative stages usually occur prior to obtaining a firm commitment for financing or production. Dur i ng development , a writer wi l l be commissioned to create the first draft of the screenp l ay. The project 's producer will attempt to interest a lead actor and a director to " attach " themselves to the project. During this phase, the producer may obtain option rights on a preexisting story, and depending on how long development takes, may need to exercise those options in order to extend the period ava i lable to obtain either independent or studio financial backing. This phase will also include a draft budget for the project 's finances, with a total amount represented by the " negative co st " 2 of the project .
Development may be underwritten by the studio that makes preliminary inv estments in the producer and the screenwriter. If the studio loses interest in the project, the project may go into "turnaround ," whereby the studio allows the producer to shop the project to other studios. The original studio may retain certain rights in such turnaround scenarios, such as the right to be r eimbursed for its prior development costs.
For a detailed insider's view of the development proce ss, Bu chwald v. Paramount Picture s Corp. recounts how an eight-page screen treatment took six years to be fully realized , in circumstances that ultimately led to a s uccessful b r each of contract l awsuit 3 The case describes in detai l the long process of development of the film "C oming to America" and mer its examination.
In Bu chwald, Art Buchwald , a successful political satirist, used the real-life occasion of a visit by the Shah of Iran to the United States as the basis for a comedy in which an African l eader travels to America where he becomes stranded by a coup back home, and u ltimately finds happiness li v ing in a Washington D.C. ghetto. Buchwal d had submitted an eight-page "t reatment " 4 to Paramount Pictures. At the time , Paramount was looking for a movie for comedy star Eddie Murphy.
Buchwald's treatment was one of many potential p r ojects considered by Murphy and by Paramount. As part of the de v elopment process that took several y ears, Paramount engaged a producer, Bernheim , and engaged a director , and assigned a writer the task of creating a screenplay from the
2 The "negative cost ," or the cost of production, cu l minates in the fully comp leted film 's photographic negative from which positive prints can be made and shipped to theaters.
3 See Buchwald v. Para,nount Pi ctures Corp., 1990 WL 357611 (Cal. Super. Jan. 31, 1990) (" Buchwa ld I") (Phase one of the proceedings found that Paramount breached its agreement with Buchwald. The court's finding on the unconscionability of the st udio ' s net profit accountings was in the unpublished Phase Two opinion)
4 A treatment is a brief outline of the screenplay.
treatment. Paramount spent over $418 ,000 on screenwriting, option fees , and advances to the potential producer, director, and screenwriter.
Over the next three years, the studio extended its option to use the Buchwald treatment several times. By 1985, it appeared that the project would not happen. Paramount abandoned the treatment , and put it in "turnaround." Buchwald and Bernheim restarted the process at Warner Bros. Studios. In late 1987 , Warner cancelled the project because it learned that Paramount was about to produce a film starring Eddie Murphy with a similar story line, titled "C oming to America." For Buchwald, six years had passed during which he received modest option extension fees from both Paramount and Warner , but to no avail.
When Paramount released "C oming to America" in 1988, Buchwald realized Paramount had , in essence, produced a film based on his original treatment. He and Bernheim successfully sued Paramount for Paramount's breach of it s original agreement with Buchwald for a share of the film 's net profits. 5
[b] Pre-Production
Once financing has been obtained and production is guaranteed, the project moves into the pre-production phase. During pre-production, the producers hire cast and crew and plan for production, which includes , for example, making arrangements for locations , soundstages, renting equipment, co s tumes, and music.
[c]-Principal Photography
Principal photography is the period during which the motion picture is shot, both on location and in the studio. Many last minute changes to the project can be made during the shoot, including changes to the script and even some of the cast members.
[d] Post-Production
During post-production , the film 's raw footage is edited, adding sound effects , special effects, and other technical matters , culminating with the completed final cut " negative." The film is now ready for the creation of prints for distribution to theaters for exhibition.
[e]-''Final Cut''
A studio-produced film will have a planned release date , which serves as incentive for the producer to deliver the final cut to the s tudio s o preparations can be made for distribution and marketing. Given that studio film s aim to create audience demand through widespread marketing campaigns, thi s '' prints and adv erti si ng " expenditure 6 is typically enormous , sometimes approaching the entire co s t of producing the film itself.
The project's financer , often the st udio , reserves all rights to the finished and fully edited film , or " final cut" and can override the film 's director with respect to editing , changes to the s cript, and
5 Buchwald v. Paramount Pictures Corp., 13 U.S.P.Q.2d 1497 (Cal. Super. 1990) ("Buc h wa ld II ") (Phase two of the proceedings, unpublished) The Buchwald case a lso presents an accurate portraya l of the slow and uncerta i n path to production for many films , sometimes taking far more than the six years in the Buchwald case. It is also a good illustration of the "optio n", an important contractual mechanism. An opt ion secures rights on a contingency basi s, with the actual purchase of those rights postponed to a later time , triggered by events such as obtaining the financing to proceed w ith production. During the entire six- year saga of the Buchwald case, his only operative contract with the studio was an option agreement that netted Buchwald a few thousand dollars. Ultimately, Buchwa ld was awarded $150,000 , and Bernheim received $750,000 6 The campaigns often consist of shipments of multip le prints of the film to theaters nationwi de , along with the advertising campaigns.
Discovering Diverse Content Through Random Scribd Documents
urchins or sea-eggs it has been found that the eggs deposited in pure sea-water, though they would die and decompose if left there alone, can be made to develop and proceed on their growth by the addition to the sea-water of the sperm filaments of a star-fish (the feather star or comatula). The spermatozoa or sperm-filaments do not, however, in this case fuse with the egg-cells. They mechanically pierce the egg-coat, but contribute no substance to the embryo into which the egg develops. They have merely served, like the scratch of a needle on the frog's egg and the brushing of insects' eggs, to start the egg on its growth, to "stimulate" it and set changes going. It appears thus that the fertilizing sperm-filaments of organisms generally have two separate and very important influences upon the egg-cells with which they fuse. The one is to stimulate the egg and start the changes of embryonic growth; the other is to contribute some living material from the male parent to the new individual arising from the growth and shaping of the egg-cell. The first influence can be exercised without the second, as is seen in the case of the eggs of some sea-urchins stimulated to growth by the spermatozoa of some star-fishes. It happens that these marine animals are convenient for study and experiment because their eggs are small and transparent and that they and the spermatozoa are freely passed into the sea-water at the breeding season, in which the fertilization of the eggs takes place.
When these facts are considered we have to admit that in the mating of two species which will not regularly and naturally breed together, there may be a limited action of the spermatic element which may stimulate the egg to development without contributing by fusion in the regular way to the actual substance of the young so produced, or only contributing an amount insufficient to produce a full and normal development of the hybrid young. Such cases not improbably sometimes occur in higher animals, though they have not been, as yet, shown to exist except in the experiments with seaurchins' eggs and feather-star's sperm.
In all animals and plants, but especially in domesticated and cultivated stocks or strains, varieties arise which, by natural or artificial separation, breed apart, and give rise to what are called "races." Such races in natural conditions may become species. Species are races or groups of individuals, which, by long estrangement (not necessarily local isolation) from the parent stock and by adaptation to special conditions of life, have become more or less "stable"—that is, permanent and unchanging in the conditions to which they have become adapted. They acquire by one device or another the habit of not breeding with the stock from which they originally diverged—a repugnance which may be overcome by human contrivance or by natural accident, but is, nevertheless, an effective and real quality. Distinct forms, which have not arrived at the stability and separation characteristic of species, are spoken of as "races," or "varieties." It is very generally the case that the "races" of one species can inter-breed freely with one another, and with the original stock, when it still exists. Comparatively little is known as to the behaviour of wild or naturally-produced "races." Practically all our views on the subject of "races" and their interbreeding are derived from our observation of the immense number and range of "races" and "breeds" produced by man—as farmer, fancier, and horticulturist. It has been generally received as a rule, that the various races produced in the farm or garden by breeding from a species, will inter-breed freely, and produce offspring which are fertile. A special and important series of races, in which human purpose and voluntary selection necessarily have a leading part, are the races of man.
The offspring of parents of two different races is called a mongrel, whilst the term "hybrid" has been of late limited, for the sake of convenience, to the offspring of parents of two different species. Mongrels, it has been generally held, are fertile—often more fertile than pure-bred individuals whose parents are both of the same race, whilst "hybrids" are contrasted with them, in being infertile. We have seen that infertility is not an absolute rule in the case of hybrids, and it appears that there is also a source of error in the observations
which lead to the notion that "mongrels" are always fertile. The fact is that observations on this matter have nearly always been made with domesticated animals and plants which are, of course, selected and bred by man on account of their fertility, and thus are exceptionally characterized by fertility, which is transmitted in an exceptional degree to the races or varieties which are experimentally inter-bred, and, consequently, may be expected to produce fertile mongrels. Alfred Russel Wallace insisted upon this fact, and pointed out that in a few cases colour varieties of a given species of plant have been found to be incapable of inter-breeding, or only produce very few "mongrels." This has been established in the case of two dissimilarly-coloured varieties of mullein. Also the red and the blue pimpernel (the poor man's weather-glass, Anagallis), which are classed by botanists as two varieties of one species, have been found after repeated trials to be definitely incapable of interbreeding. Wallace insists in regard to crossing, that some degree of difference favours fertility, but a little more tends to infertility. We must remember that the fertility of both plants and animals is very easily upset. Changed conditions of life—such as domestication— may lead (we do not know why) to complete or nearly complete infertility; and, again, "change of air," or of locality, has an extraordinary and not-as-yet-explained effect on fertility.
"Oh, the little more and how much it is!
And the little less, and what worlds away!"
Infertile horses sent from their native home to a different climate (as, for instance, from Scotland to Newmarket) become fertile. A judicious crossing of varieties or races threatened with infertility will often lead to increased vigour and fertility in the new generation, just as change of locality will produce such a result. Physiological processes which are not obvious and cannot be exactly estimated or measured are then, we must conclude, largely connected with the question of sterility and fertility. Mr. Darwin has collected facts which go far to prove that colour (as in the case of the black pigs of Virginia, which I cited in Chapter X.), instead of being a trifling and unimportant character, as was supposed by the older naturalists, is
really one of great significance, often correlated with important constitutional differences. It is pointed out by Alfred Wallace that in all the recorded cases in which a decided infertility occurs between varieties (or races) of the same species of plants (such as those just cited), those varieties are distinguished by a difference of colour. He gives reasons for thinking that the correlation of colour with infertility which has been detected in several cases in plants may also extend to animals in a state of nature. The constant preference of animals—even mere varieties of dog, sheep, horses, and pigeons —for their like, has been well established by observation. Colour is one of the readiest appeals to the eye in guiding animals in such selection and association, and is connected with deep-seated constitutional qualities. "Birds of a feather flock together" is a popular statement confirmed by the careful observation of naturalists. Thus we arrive at some indication of features which may determine the inter-breeding, or the abstention from inter-breeding, of diverse races sprung from one original stock. The "colour bar" is not merely the invention of human prejudice, but already exists in wild plants and animals.
We now come to the questions, the assertions, the beliefs, and the acts concerning the inter-breeding of human races, to the consideration of which I have been preparing the way. The dogfancier has generally a great contempt for "mongrels." Breeders generally dislike accidental crosses, because they interfere with the purpose which the breeder has in view of producing animals or plants of a quality, form, and character which he has determined on before-hand. This interference with his purpose seems to be the explanation of beliefs and statements, to the prejudice of "mongrels." Really, as is well known to great breeders and horticulturists, a determined and selective crossing of breeds is the very foundation of the breeder's art, and there is no reason to suppose that a "mongrel" is necessarily, or even probably, inferior in vigour or in qualities which are advantageous in the struggle for life in "natural"—that is to say, "larger"—conditions of an animal's or plant's life; not those limited conditions for which the breeder
intends his products. Indeed, the very opposite is the case. In nature, as Mr. Darwin showed, there are innumerable contrivances to ensure the cross-breeding of allied but distinct strains. Dog-owners who are not exclusively bent upon possessing a dog which shows in a perfect way the "points" of a breed favoured by the fashion of the moment, or fitting it for some special employment, know very well that a "mongrel" may often exhibit finer qualities of intelligence, or endurance, than those exhibited by a dog of pure-bred "race." And the very "races" which are spoken of to-day as "pure-bred," or "thoroughbred," have (as is well known) been produced as "mongrels"—that is to say, by crossing or mating individuals of previously-existing distinct and pure breeds. The history of many such "mongrel breeds," now spoken of as "thoroughbred," is well known. The English racehorse was gradually produced by the "mongrelizing," or cross-breeding, of several breeds or races—the English warhorse, the Arab, the Barb. A very fine mongrel stock having at last been obtained, it was found, or, at any rate, was considered to be demonstrated, that no further improvement (for the purposes aimed at, namely, flat-racing) could be effected by introducing the blood of other stock. The offspring of the "mongrels" Herod, Matchem, and Eclipse accordingly became established as "the" English racehorse, and thenceforward was mated only within its own race or stock, and was kept pure or "thoroughbred." Another well-known mongrel breed which is now kept pure, or nearly so, is that of the St. Bernard's dog, a blend of Newfoundland, Bloodhound, and English Mastiff.
Often the word "mongrel" is limited in its use to signify an undesired or undesirable result of the cross-breeding of individuals of established races. But this is not quite fair to mongrels in general, since, as we have seen, the name really refers only to the fact they are crosses between two breeds. When they happen to suit some artificial and arbitrary requirement they are favoured, and made the starting-point of a new breed, and kept pure in their own line; but when they do not fit some capricious demand of the breeder they are sneered at and condemned, although they may be fine and
capable animals. No doubt some mongrels between races differing greatly from one another, or having some peculiar mixture of incompatible qualities the exact nature of which we have not ascertained, are wanting in vigour, and cannot be readily established as a new breed. In nature the success of the mongrel depends on whether or not its mixture of qualities makes it fitter than others to the actual conditions of its life, and able to survive in the competition for food and place. In man's breeding operations with varieties of domesticated animals and "cultivated" plants, the survival of the mongrel depends upon its fitting some arbitrary standard applied by man, who destroys those which do not suit his fancy, and selects for survival and continued breeding those which do.
What is called "miscegenation," or the inter-breeding of human races, must be looked at from both these points of view. We require to know how far, if at all, the mixed or mongrel offspring of a human race A with a human race B is really inferior to either of the original stocks A and B, judged by general capacity and life-preserving qualities in the varied conditions of the great area of the habitable globe. And how far an arbitrary or fanciful standard is set up by human races, similar to that set up by the "fancier" or cultivator of breeds of domestic animals. The matter is complicated by the fact that what we loosely speak of as "races" of man are of very various degrees of consanguinity or nearness to one another in blood, that is, in stock or in ultimate ancestry. It is also complicated by the fact that we cannot place any reliance upon the antipathies or preferences shown by the general sentiment of a race in this (or other matters) as necessarily indicating what is beneficial for humanity in general or for the immediate future of any section of it. Nor have we any assurance that what is called "sexual selection"— the preference or taste in the matter of choosing a mate—is among human beings necessarily anything of greater importance—so far as the prosperity of a race or of humanity in general is concerned—than a mere caprice or a meaningless persistence of the human mind in favouring a choice which is habitual and traditional. I have referred to this point again in the last paragraph of this chapter.
In regard to marriage between individuals of different European nationalities, a certain amount of unwillingness exists on the part of both men and women which cannot be ascribed to any deep-seated inborn antipathy, but is due to a mistrust of the unknown "foreigner," which very readily disappears on acquaintance, or may arise from dislike of the laws and customs of a foreign people. English, French, Dutch, Scandinavians, Germans, Russians, Greeks, Italians and Spaniards have no deep-rooted prejudices on the subject, and readily intermarry when circumstances bring them into association. Though the Jews by their present traditional practice are opposed to marriage with those not of their faith, there is no effective aversion of a racial kind to such unions, and in early times they have been very frequent. During the "captivity" in Babylon and again after the "dispersal" by the Romans, the original Jewish race was practically swamped by mixture with cognate Oriental races who adopted the Jewish faith. So far from there being inborn prejudice against intermarriage of the peoples above cited, it is very generally admitted that such "miscegenation" leads frequently to the foundation of families of fine quality. The blend is successful, as may be seen in the number of prominent Englishmen who have Huguenot, German, Dutch, or Jewish blood in their veins.
But when we come to the intermarriage of members of the white race of Europe with members of either the negroid (black) race or of the yellow and red mongoloid race, a much greater and more deeply-rooted aversion is found, and this is extended even to members of the Caucasian race who, possibly by prehistoric mixture with negro-like races, are very dark-skinned, as is the case with the Aryan population in India and Polynesia. It is a very difficult matter; in fact, it seems to me not possible in our present knowledge of the facts, to decide whether there is a natural inborn or congenital disinclination to the marriage of the white race, especially of the Anglo-Saxon branch of it, with "coloured" people, or whether the whole attitude (as I am inclined to think) is one of "pride of race," an attitude which can be defended on the highest grounds, though it may lead to erroneous beliefs as to the immediate evil results of
