Gordon Firemark is an entertainment lawyer located in the northern outskirts of Los Angeles. His practice at the Law Office of Gordon Firemark covers a wide range of entertainment clientele, particularly those involved in motion pictures, television, music, theater, and the internet. His expertise is in copyright, trademark and trade secrecy.
Along with his law practice, Firemark blogs actively with his Theatre and Entertainment law blog and hosts an entertainment law pod cast, Entertainment Law Update Podcast. I strongly recommend checking in with both sites from time to time.
Firemark was kind enough to take time out of his work schedule to field a variety of entertainment law related questions. Here are the highlights:
So why entertainment law?
I came to entertainment first, law second. I grew up in theater with sound and lighting. In college, I started as a theater major and eventually landed in telecommunications. It was an interesting blend of hands-on production. Lighting and things like that. There were other courses I took in college on public policy, media, and government regulations where I understood I had an aptitude for those elements of the industry. Law school was a late option for me as I was applying for grad schools. In fact, I ended up not going to law school right away, but came back to LA. I worked in the television business, working as a producer. The company headed in a different direction so I went back to school.
You went to Southwestern Law, which has established a name for itself in the entertainment law industry. You’re been a panelist for their Entertainment Law Career Day. How important would you say going a program with entertainment law is for an aspiring entertainment lawyer?
My advice to law students is to go to the best law school you can go to. Once you get into deciding between law schools, whatever tier of laws schools, that’s when you consider what types of law they offer. If you get into Harvard, go to Harvard. You’ll have a better career. A lot of the top executives went to big law schools.
Do you consider entertainment law to be a unique body of law?
I don’t view entertainment as a separate body of law. Although there are types of law that are exclusive to entertainment. It’s an amalgamation of other fields. The way I describe it, glibly, it’s a business law, but business law with an ego driven business. Lawyers need to know how to distinguish this law. However, there are certainly fields of law exclusive to the entertainment industry, such as right of publicity.
What is a typical day, if there is one for you?
Typical day is a 10-7, normal business hours. I rarely adhere to the 7 o’clock part of it. I mostly work from a home office. I’m in the office several days a week to visit with clients and other lawyers. In the evening, I’ll catch up with reading. My day consists of a lot of phone and keeping in touch. Reviewing contracts and a lot of it is banging out the terms of the deal.
How do you go about choosing clients?
I’ll talk to any client who will talk. However, I will not do the work that agents do. For example, with screenwriters I want to represent screenwriters who have projects. I will not shop the screenplays around. If someone needs help to send a screenplay, I’ll tell them to get agent.
Regarding your clientele, is it mostly one time deals or continued business?
The nature of this business is that people may come into this business in a year. Something won’t happen for a couple years, until they do something again. I like to think that my job is to secure business and have a repeat customer. My hope is that when they come back I’ll be there for them. There are some deals that are one off, like making a real-life story. It doesn’t change the commitment to making top quality, productive work.
Where do you see fees heading?
I think we’re heading in a direction where there will be an unbundling of fees. Agents charge a percentage. 10% for this, 15% for that. Sometimes lawyers charge 5%, 10% maybe if there’s no agent because then we’re doing more of the heavy lifting. By unbundling, I mean a flat rate for services, such as an option rate. That depends on the lawyers establishing a system that works. A simple copyright assignment might be $100, because you bang it out and you’re done. You put the client in the driver’s seat to determine what they want to pay. As lawyers, that makes us antsy because I may know that they only want to pay X amount of dollars when I think they need XYZ. Do I only recommend that they get X? We’re heading toward flat fees.
Whose template do you use for talent contracts?
Usually it is the production company that has the contract. They provide the basic framework. We’re able to work with short form like contracts. We’re referencing a pre-formed contract.
How does your work overlap with that of a non-attorney entertainment agent?
From the most fundamental, definitional distinction, agents are licensed. There’s a different license for lawyers. There are some limitations on fee structures. It’s just generally commission. Agents can’t charge hourly rates like lawyers do. Very few agents are licensed as lawyers. And very few lawyers are licensed as agents. It’s similar in a few other states. New York, and I think Tennessee. As a practice matter, I view the sales and marketing role as that of the agent. The lawyer’s job is more of the business of legal. Counseling, the nitty gritty of contracts. The agent may discuss the numbers, but the lawyers get into the nitty gritty of the body of the entertainment contracts. The distinction is the activity that requires the talent agency license is the procurement of business. Most attorneys draw the line at finding a job. That doesn’t mean we won’t leverage our time to recommend ways to find business.
You recently were a panelist with the LA County Bar Association discussing how lawyers can use and benefit from social media. You are also a blogger. What recommendations, or limitations, would you give clients about using blogs, facebook, twitter, etc.?
Even just for maintaining a website, it’s a form of publishing. If you have something you don’t want public, don’t put it so people can re-publish it. Caution is what I tell clients. It’s both a plus and minus. If you slip up there’s nobody in between to blame, which is a role, the press, studios and publicists have. Celebrities have that concern. The other thing, many of my clients are production folks that use this new media to update. Several areas we look for are for libel through bloggers. The FCC is looking into payola. where people are paying for positive reviews.
At the recent World Copyright Summit, there was a lot of conversation about Internet piracy. We’ve seen the Napsters and Pirate Bays of the world face expensive lawsuits, only to be bought out for big money. It almost seems like a good business model to infringe, infringe, infringe until you develop a fan base, get some press with a lawsuit and then sell the company for millions of dollars. We’ve seen France attempt to ban illegal downloaders from having Internet access. Where do you see the direction of Internet piracy laws?
It is as much a legal as a political question. We’ll see revisions of copyright, trademark laws, etc. and not just online. In the US we have an attitude of freedom that doesn’t exist everywhere. What’s going to happen with IP law? I see we are going to see a move for more restrictions; the “victims” have very strong lobbyists. I think what we have to do as lawyers is make sure that the law is fair on both sides. So we don’t have $2 million verdicts against nice college girls. We have another with Joel Tenenbaum with the RIAA whose lawyer is making a public display of attitude. All of that press attention is going to play out. Statutory damages are going to come under fire. This is something that the Senate is going to look at. There is a lot there. We’ll probably see some Constitutional questions involving disproportionality. My advice is to think about the press, but you have to weigh that against the bad press if you sue some relatively small fry in the equation. Does a lawsuit really just make you a target for more piracy?
The Law Offices of Gordon P. Firemark are located at 10940 Wilshire Blvd., Suite 1600, Los Angeles, CA 90024. The firm can be reached via phone at (310) 443-4185 or the firm’s website at www.firemark.com.
What do you think about Lawrence Lessig's argument that we are making our kids criminals by making non-commercial file sharing illegal. Millions of kids download and know that they are doing so outside of the law; they don't care. Most of these kids will not understand that the criminal laws that are ridiculous are merely the copyright laws; instead, they may think that other laws are laughable also. This lack of understanding means that the kids will disobey other laws under the same pretense that they are laughable.
Lets remove the excuse, and stop suing people who download for non-commercial reasons.
Personally, I'm reluctant to advocate a policy where we cherry-pick seemingly random kids for infringement. However, the law is the law and there needs to be some threat of action for violators. As a musician and writer, I can relate to copyright owners' concerns.
Also, how do you know what is used for non-commercial reason? Shawn Fanning seemed like a normal 19-year-old kid who downloaded music for "non-commercial reasons." Next thing you know, he's making international headlines with Napster. And, say I download an entire album for free. While I may not be distributing it in the traditional "commercial" sense of the word, this may preclude me from purchasing the album. Doesn't this affect commerce?
With all that being said, I see an ongoing trend of hybrid free-music-with-limited-commercial-interruption access (i.e. Pandora) on the rise. In fact, I'm listening to Pandora right now…
There does need to be a threat of action against violators, I agree. But that threat should not extend to the non-commercial user who only wants to listen to more music than his wallet will allow. Certainly not the draconian punishment that was handed to Jammie Thomas-Rasset. Multi-million dollar civil penalties should be reserved to those making profit from downloading illegally.
Sometimes I think about the consequences of downloading, and I think, "what if no one downloaded illegally?" But then I realize that the people who currently download illegally would not buy every album in the absence of free sharing programs. Quite to the contrary, I think that the current downloaders would be much less sophisticated without sharing programs. They would be limited to the music that their wallets would allow, and would have music libraries that would be dwarfed by any "illegal" downloader's library.
I think that the songwriter Montt Mardie put it best when he said, "An artist has got to make a living just like everybody else, there's no doubt about it. And these are tough times, believe me I know. The thing is though, if I were to go back in time, 10 years or so, and tell the 15-year-old version of myself that over a night, 60 000 people had heard one of my songs, the first question I'd throw back at myself wouldn't be "how much money did I make?" Montt Mardie recently wrote a song that is free to download; it is called "We're All the Pirate Bay," and can be downloaded, remixed, and uploaded without incident.
To answer your next question, I do not know what is used for commercial reason. However, I do not think that there should be a presumption of commercial use in cases of end-users downloading music and movies. Shawn Fanning did seem like a normal kid who downloaded for non-commercial reasons, and he did. He only made money when he sold Napster. Thus, the legal dynamic that exists today, and that has existed since Napster, is that of creating an illegal application that is user friendly, then build a fan base, get sued, and sell the application for millions. This has been repeated with The Pirate Bay. However, if non-commercial downloading were presumed legal, then people would not make millions of dollars breaking the law. This is precisely the kind of conduct that I think should stop, and I think would stop if downloading were presumed legal if not used for commercial gain.
Downloading an album certainly affects commerce. Each album is about $15 that will not enter the stream of commerce. But should that person be liable for $750-$30,000 per work infringed (which could be each song on the album)? Such draconian penalties are ridiculous. There was a time when money counterfeiters were hung, disemboweled, emasculated, and cut into four pieces. In fact, Sir Isaac Newton was famous for condemning counterfeiters to death in this fashion, and he was an intellectual man. If this were still the punishment for counterfeiting, there would probably be fewer counterfeiters. But such punishments bear no relation to the crime of counterfeiting in the same way that statutory damages bear no relation to the actual damages caused to "commerce."
I believe that applications like Pandora and Hulu will do well. But they are not a substitute for music on demand in that a user of Pandora cannot pick the precise song he wants to play. Nor can the user listen to music outside of a WiFi hot spot. Furthermore, Pandora has recently moved to a model where it will have to compensate artists via SoundExchange, the internet equivalent to ASCAP or BMI. This compensation is inconsistent with the advertisement driven business model that Pandora began with.
Very nice Blog, I will tell my friends about it.
Thanks