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	<title>Entertainment Agent Blog &#187; Entertainment Law</title>
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	<link>http://entertainmentagentblog.com</link>
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		<title>Profit? What Profit?</title>
		<link>http://entertainmentagentblog.com/2011/09/25/profit-what-profit/</link>
		<comments>http://entertainmentagentblog.com/2011/09/25/profit-what-profit/#comments</comments>
		<pubDate>Sun, 25 Sep 2011 05:22:46 +0000</pubDate>
		<dc:creator>Gene Goodsell</dc:creator>
				<category><![CDATA[Entertainment Law]]></category>
		<category><![CDATA[Lead Story]]></category>

		<guid isPermaLink="false">http://entertainmentagentblog.com/?p=1201</guid>
		<description><![CDATA[Hollywood movie studios are notorious for under-representing profits. On August 30, Napoleon Pictures filed a lawsuit against Fox Searchlight for $10 million in undisclosed profits derived from the hit indie Napoleon Dynamite. The plaintiff claims that the studio failed to &#8230; <a href="http://entertainmentagentblog.com/2011/09/25/profit-what-profit/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p style="text-align: center;"><a href="http://entertainmentagentblog.com/wp-content/uploads/2011/09/Napoleon-Pictures.jpg"><img class="size-full wp-image-1202 aligncenter" title="Napoleon Pictures" src="http://entertainmentagentblog.com/wp-content/uploads/2011/09/Napoleon-Pictures-e1316928116201.jpg" alt="" width="570" height="278" /></a></p>
<p>Hollywood movie studios are notorious for under-representing profits. On August 30, <strong>Napoleon Pictures</strong> filed a lawsuit against <strong>Fox Searchlight</strong> for $10 million in undisclosed profits derived from the hit indie <em>Napoleon Dynamite. </em>The plaintiff claims that the studio failed to pay them the full amount of home video royalties owed and also overstated deductions.</p>
<p>At the Sundance Film Festival in 2004, the breakout comedy had its choice of several distributors. One of the reasons that the producers chose Fox Searchlight was because of the high royalty payments that were promised. Napoleon Pictures also alleges breach of contract and negligent misrepresentation.</p>
<p>With stories such as this often surfacing in the press, one may ask &#8216;how do studios get away with this&#8217;? Some of the reasons are that plaintiffs require time and money to bring a lawsuit. Many younger artists may also be deterred by the public exposure and the possibility of earning a bad reputation.</p>
<p>Three legal verdicts handed down last year favored producers over studios. The first verdict was handed down by a unanimous jury in 2007 and affirmed by a California Court of Appeal last May. It concerned profit distributions by Warner Bros Entertainment Inc to a producer (Ladd) for the movies <em>Police Academy</em>, <em>Chariots of Fire, Blade Runner</em>. The total amount awarded to Ladd was a whopping $97 million.</p>
<p>In order to bring a profit participation case against a studio, artists commence the process by requesting an audit of the studio&#8217;s books. The artist will need to hire a professional studio auditing firm and work through their concerns with studio reps.</p>
<p>The term &#8216;net profit&#8217; is defined in <em>Generally Accepted Accounting Standards </em>(&#8216;GAAP&#8217;). In addition to GAAP, <em>Financial Accounting Standards Bulletin 53 </em>(&#8216;FASB 53&#8242;) discusses when income from the exploitation of a motion picture is to be recognized as earned and when the cost of producing and distributing a motion picture is recognized as incurred.</p>
<p>What is surprising is that the reports to net-profit participants by studios do not follow GAAP or FASB 53. Instead, the reported net profit follows a complex document which explains the accounting methodology employed by the studio.</p>
<p>This document will often appear as a schedule to the participant&#8217;s employment agreement containing the studio&#8217;s <em>Standard Profit Definition </em>(&#8216;SPD&#8217;). The accounting provisions which are contained in the studios SPDs make it difficult, if not mathematically impossible, in many cases, for net profits to ever be derived.</p>
<p>GAAP is based on the accrual method of accounting. The accrual method provides that revenue is recognized when it&#8217;s derived and expenses are recognized when they are incurred. In an SPD, revenue is recognized when cash is received (which can take an inordinate amount of time, if ever) and expenses are recognized when they are incurred. This mismatching of revenue and expenses will delay, possibly forever, the reporting of profits.</p>
<p>Lawyers representing net profit net profit participants can challenge SPDs for breach of contract; unconscionability of the SPD; and breach of fiduciary duty (amongst other remedies).</p>
<p><em>Gene Goodsell is a consulting lawyer at Burgess Sport &amp; Entertainment Law and the Executive Manager of Gum Leaf Entertainment. Gene can be contacted at gene.goodsell@gumleafent.com; or gene@bselaw.com.au.  </em></p>
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		<title>Negotiating Theatrical Deals in a Digital Environment</title>
		<link>http://entertainmentagentblog.com/2010/11/27/negotiating-theatrical-deals-in-a-digital-environment/</link>
		<comments>http://entertainmentagentblog.com/2010/11/27/negotiating-theatrical-deals-in-a-digital-environment/#comments</comments>
		<pubDate>Sat, 27 Nov 2010 16:41:31 +0000</pubDate>
		<dc:creator>Gene Goodsell</dc:creator>
				<category><![CDATA[Entertainment Agents]]></category>
		<category><![CDATA[Entertainment Law]]></category>

		<guid isPermaLink="false">http://entertainmentagentblog.com/?p=1162</guid>
		<description><![CDATA[In California, talent agents are regulated by s. 1700 of the California Labor Code (the “Code”) and are required to be licensed. Other professions that are required to be licensed are doctors and attorneys-at-law.  The regulations require, amongst other things, &#8230; <a href="http://entertainmentagentblog.com/2010/11/27/negotiating-theatrical-deals-in-a-digital-environment/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>In California, talent agents are regulated by s. 1700 of the <em>California Labor Code </em>(the “Code”) and are required to be licensed. Other professions that are required to be licensed are doctors and attorneys-at-law.  The regulations require, amongst other things, for talent agents to maintain a trust account and submit the agency’s form of talent agreement for approval by the Labor Commissioner. Together, Guild regulations and the provisions of the Code govern the activities of talent agents in California.</p>
<p>Many managers claim that they can solicit employment on their client’s behalf. However, under the Code, managers can only <span style="text-decoration: underline;">negotiate</span> employment agreements if done “in conjunction with <span style="text-decoration: underline;">and at the request of</span>, a licensed talent agent”.</p>
<p>The primary role of an entertainment attorney is to protect his client with respect to the legal aspects of a deal. As such, clients stand to benefit where they engage the services of a talent agent who has a law degree and has also practised as a lawyer.</p>
<p>With regards to the art of deal-making in the current age, there are many different opinions as to how negotiations should be conducted.  Some common principles espoused by talent agents in the relevant literature are:</p>
<ol>
<li>To always leave your adversaries      dignity intact – you never know when you will be negotiating with them      again.</li>
<li>Only commence negotiations with      regards to a project when you are certain that it will be a      commercial/critical success.</li>
<li>Know what your client’s walk-away      point is.</li>
<li>Studios negotiate according to      precedent. Know how much they will bend/what they will be willing to pay.</li>
<li>Form relationships with people who      you will end up negotiating with. When there is trust and respect, a deal      can often be reached that is fair and reasonable.</li>
</ol>
<p><strong>THE CHANGING LANDSCAPE</strong></p>
<p>The emergence of reality programming has meant that TV series budgets are shrinking. Gen Y are using the Internet, mobile phones etc at an unprecedented rate and this means that more and more advertising dollars are being directed towards these communication mediums. In addition to this, those watching TV are increasingly using technology such as TiVo to skip over commercials.</p>
<p>Branding and merchandising is also becoming a huge source of income for talent agencies. Packaging a celebrity personality creates strong brand recognition which equates to increased revenue.</p>
<p>Studios and networks are attempting to expand the scope of required services from projects to include work for the Internet, video games, extended content etc.  Obviously, talent agencies need to be allowed to participate in the revenues generated by these ancillary areas.</p>
<p>In the current environment, a talent agent will need to consider every possible source of commercial exploitation of a project, including: pay-per-view, VOD, electronic sell-through, online and digital distribution, cellular and wireless distribution, live attractions, video games, ringtones, publishing, merchandising, commercial tie-ins &#8230; what’s next?!</p>
<p><em>Gene works in the Los Angeles office of Abrams Artists Agency. He is a member of the Beverly Hills Bar Association, has practised commercial (including entertainment) law in Sydney and London, as well as working as a talent agent for a Sydney firm. He has a business degree, a law degree with honours, a post-graduate diploma in legal practice and has completed six subjects of a Masters of Laws. </em></p>
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		<title>Institute On Entertainment Law &amp; Business At USC – Issues For Talent Agents</title>
		<link>http://entertainmentagentblog.com/2010/11/08/institute-on-entertainment-law-business-at-usc-%e2%80%93-issues-for-talent-agents/</link>
		<comments>http://entertainmentagentblog.com/2010/11/08/institute-on-entertainment-law-business-at-usc-%e2%80%93-issues-for-talent-agents/#comments</comments>
		<pubDate>Mon, 08 Nov 2010 12:51:06 +0000</pubDate>
		<dc:creator>Gene Goodsell</dc:creator>
				<category><![CDATA[Entertainment Business]]></category>
		<category><![CDATA[Entertainment Law]]></category>
		<category><![CDATA[Lead Story]]></category>
		<category><![CDATA[beijing]]></category>
		<category><![CDATA[China]]></category>
		<category><![CDATA[Filmmaking]]></category>

		<guid isPermaLink="false">http://entertainmentagentblog.com/?p=1157</guid>
		<description><![CDATA[On Saturday, October 23, I attended the Institute on Entertainment Law &#38; Business at the USC Gould School of Law, which included a lunchtime address by Michael Lynton, CEO and Chairman of Sony Pictures Entertainment. Although the Institute had a &#8230; <a href="http://entertainmentagentblog.com/2010/11/08/institute-on-entertainment-law-business-at-usc-%e2%80%93-issues-for-talent-agents/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p style="text-align: center;"><a href="http://entertainmentagentblog.com/wp-content/uploads/2010/11/beijing-china.jpg"><img class="size-full wp-image-1158 aligncenter" title="beijing china" src="http://entertainmentagentblog.com/wp-content/uploads/2010/11/beijing-china.jpg" alt="" width="530" height="303" /></a></p>
<p><a href="http://entertainmentagentblog.com/wp-content/uploads/2010/11/beijing-china.jpg"></a>On Saturday, October 23, I attended the Institute on Entertainment Law &amp; Business at the USC Gould School of Law, which included a lunchtime address by <strong>Michael Lynton</strong>, CEO and Chairman of <strong>Sony Pictures Entertainment</strong>.</p>
<p>Although the Institute had a heavy legal focus, there were numerous poignant issues highlighted, which impact upon the practice of a talent agent.</p>
<p>One of these issues was the rise of India and in particular, China, on the world movie stage. This is an issue that I have written about before: (<a href="http://entertainmentagentblog.com/2009/09/28/entertainment-china/">http://entertainmentagentblog.com/2009/09/28/entertainment-china/</a> and <a href="http://entertainmentagentblog.com/2009/07/27/the-rise-of-asian-cinema/">http://entertainmentagentblog.com/2009/07/27/the-rise-of-asian-cinema/</a>).</p>
<p>CAA and WME Entertainment’s establishment of a Beijing office is testament to the large revenue streams being generated out of China. The Chinese Government has stated that they want to build as many cinema screens as the US (at the moment, they are second only to the US in the number of traditional movie and IMAX screens that they have).</p>
<p><strong>Rand Holston</strong> from <strong>CAA</strong> stated that CAA is experiencing considerable success representing Chinese film stars in Beijing. The cost for CAA of setting up an office in Beijing was in the vicinity of USD 5 – 10 million. However, Chinese movies are very popular and generate considerable revenues, which was a major reason for CAA establishing an office there.</p>
<p>US producers are also experiencing considerable success making films in partnership with the Chinese (for example, where Chinese companies contribute development funds).</p>
<p>There is no doubt that the Chinese film market is still very domestic-centric and the Chinese Government has a strict censorship system in place. However, China has a population that is approaching 1.5 billion, so any form of investment is bound to reap some kind of reward.</p>
<p>The Chinese State Administration of Radio, Film and Television has predicted that box office revenue will exceed USD 4.5 billion by 2015 and the US, as well as other countries and organisations are lobbying intensely for China to remove the restrictions on the number of foreign films that are allowed to be shown domestically. Once this restriction is lifted, the value of the Chinese market to Hollywood will be enormous.</p>
<p>As Holston stated, there are impediments for agents to doing business in China. These include:</p>
<ul>
<li>the lack of an established,      stable legal system (let alone a specialized body of ‘entertainment law’);</li>
<li>an unpredictable Government; and</li>
<li> the need for Westerners to have      pre-existing relationships with influential Chinese decision-makers      ‘on-the-ground’ in China.</li>
</ul>
<p>Despite the presence of these issues, the Chinese market will continue to generate eye-watering revenue figures and given the low cost of labour in China, will continue to become more and more attractive to Hollywood as a centre for investment.</p>
<p><em>Gene Goodsell is an ‘agent-in-training’ with Abrams Artists Agency in Los Angeles, has a law degree with honours, a business degree, a post-graduate diploma in legal practice and is currently completing a Masters of Laws. He has practised as a commercial lawyer in Sydney and London.</em></p>
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		<title>The Future Of Movies? Digital!</title>
		<link>http://entertainmentagentblog.com/2010/09/13/the-future-of-movies-digital/</link>
		<comments>http://entertainmentagentblog.com/2010/09/13/the-future-of-movies-digital/#comments</comments>
		<pubDate>Mon, 13 Sep 2010 13:00:06 +0000</pubDate>
		<dc:creator>Gene Goodsell</dc:creator>
				<category><![CDATA[Entertainment Business]]></category>
		<category><![CDATA[Entertainment Law]]></category>

		<guid isPermaLink="false">http://entertainmentagentblog.com/?p=1137</guid>
		<description><![CDATA[There is no aspect of film making that is evolving faster, or as successfully as digital film making and its offshoots. In June 1999, Twentieth Century Fox released George Lucas’ digitally mastered Star Wars: Episode 1 – The Phantom Menace. &#8230; <a href="http://entertainmentagentblog.com/2010/09/13/the-future-of-movies-digital/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>There is no aspect of film making that is evolving faster, or as successfully as digital film making and its offshoots.</p>
<p><a href="http://entertainmentagentblog.com/wp-content/uploads/2010/09/star-wars.jpg"><img class="alignright size-full wp-image-1138" style="margin-top: 5px; margin-bottom: 5px; margin-left: 10px; margin-right: 10px;" title="star wars" src="http://entertainmentagentblog.com/wp-content/uploads/2010/09/star-wars.jpg" alt="" width="277" height="208" /></a>In June 1999, Twentieth Century Fox released George Lucas’ digitally mastered Star Wars: Episode 1 – The Phantom Menace. This was the first time that a major studio released a film digitally.</p>
<p>Digital film making represents a huge breakthrough in the way films are produced. In fact, digital film making has been compared to the arrival of sound in 1927.</p>
<p>Digital film making provides tremendous cost savings during production and in post-production. Film makers are not burdened with servicing the bottom line requirements of banks, studios, insurers, completion guarantors, foreign sales companies and distributors.</p>
<p>New delivery systems for entertainment content are continually emerging. Apart from the traditional means of distributing films and TV, programming can now be delivered by digital methods such as delivering TV directly to the home (DirecTV), or over the Internet, which is used to deliver such online streaming services such as Lion’s Gate/Trimark’s CinemaNow.</p>
<p>Where a digital distributor wants to exhibit a movie over the Internet on its website, over DSL systems, or via a private, closed delivery system, they will provide a producer with a distribution agreement.</p>
<p>There are a number of factors that a producer should be aware of when negotiating a distribution agreement.</p>
<p><strong>1. </strong><strong>The Licensing Period</strong></p>
<p>Your license term for digital exploitation will depend on what other rights (if any) you have previously licensed. If you have had no previous exploitation, try to negotiate the license for a period of six months so that you can reassess the digital marketplace in the not too distant future.</p>
<p><strong>2. </strong><strong>Advertising</strong></p>
<p>The digital distributor will usually want to use the names, voices, likenesses and photographs of actors for their own marketing purposes. You should be careful not to grant rights to the digital distributor that are not available under your various talent agreements.</p>
<p>One provision that a producer should ask for is a commitment on behalf of the digital distributor to advertise the movie in a negotiated manner.</p>
<p><strong>3. </strong><strong>License Fee</strong></p>
<p>Obtaining an advance against royalties for a digital license is difficult. If an advance is not possible, a producer should ask for a large share of the gross revenue for downloads, streaming etc (ask for around 50%).</p>
<p>Also, ask for a share of advertising revenues associated with the viewing of your product. If relevant, also ask for stock options and the right to purchase stock at less than market rates. Specify the minimum rates to be charged for downloads and viewings. It is absolutely crucial that you make sure you are clear as to how your share of royalties from subscriptions are to be calculated.</p>
<p>You should receive monthly statements within 60 days detailing all relevant financial details associated with the digital distribution. The distribution agreement should have a provision allowing you to audit the digital distributer’s financial records. It is wise to negotiate for the digital distributor to pay for the cost of an audit.</p>
<p><strong>4. </strong><strong>Cross-links</strong></p>
<p>A provision should be included in the distribution agreement requiring cross-linking of the digital distributor’s site with your official site as well as the right to sell merchandise from your own site.</p>
<p><strong>5. </strong><strong>Delivery of materials</strong></p>
<p>It is advisable to attempt to get the territorial distributor to pay for subtitled versions of the product that may be required.</p>
<p>The digital distributor should agree not to authorize any copies of the sub-master to be made without your prior written consent and should agree to keep the motion picture sub-master secure during the license period and agree to destroy any encoded and compressed versions of the movie at the conclusion of the license period.</p>
<p><strong>6. </strong><strong>The protection of intellectual property</strong></p>
<p>A producer should reserve all rights in relation to their product and any other software or intellectual property.</p>
<p><strong>7. </strong><strong>Breach</strong></p>
<p>A common provision in a digital licensing agreement provides for a reasonable notice period for breaches on either side but in the event of breach on behalf of the digital distributor, you waive your right to any injunctive relief, the right to terminate the agreement or seek recision. The only remedy would be an action at common law for damages.</p>
<p>*          *          *          *</p>
<p>The digital delivery of motion pictures will rapidly expand over the next few years. Digital pricing, territorial limitations, the issue of exclusivity and appropriate license periods will become more generic and a set of even more specialized standard terms for digital exploitation will emerge.</p>
<p><em>Gene Goodsell </em><em>LLB (Hons) B Bus (Accounting) Post Grad Dip LP FTIA</em><em> </em>has experience working as an entertainment lawyer and agent/manager. Gene can be contacted at <a href="mailto:ggoodsell@navitasmgmt.com">ggoodsell@navitasmgmt.com</a></p>
<p>Please note that the contents of this article are predominantly based on US law and the information in this article is not intended in any way to be construed as legal advice but only as information of a general nature.</p>
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		<title>In the Immortal Words of Gary Gilmore and NIKE, &#8220;[Just] Do It.&#8221;</title>
		<link>http://entertainmentagentblog.com/2010/06/20/in-the-immortal-words-of-gary-gilmore-and-nike-just-do-it/</link>
		<comments>http://entertainmentagentblog.com/2010/06/20/in-the-immortal-words-of-gary-gilmore-and-nike-just-do-it/#comments</comments>
		<pubDate>Sun, 20 Jun 2010 20:03:49 +0000</pubDate>
		<dc:creator>David Greene</dc:creator>
				<category><![CDATA[Entertainment Law]]></category>
		<category><![CDATA[Lead Story]]></category>
		<category><![CDATA[nike]]></category>
		<category><![CDATA[trademark]]></category>

		<guid isPermaLink="false">http://entertainmentagentblog.com/?p=1092</guid>
		<description><![CDATA[&#8220;Just do it.&#8221; This is one of the world&#8217;s most famous trademarks, and any reader will know that products bearing the phrase are NIKE products. However, not many people know where this phrase comes from. The phrase, &#8220;Just do it,&#8221; &#8230; <a href="http://entertainmentagentblog.com/2010/06/20/in-the-immortal-words-of-gary-gilmore-and-nike-just-do-it/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>&#8220;Just do it.&#8221; This is one of the world&#8217;s most famous trademarks, and any reader will know that products bearing the<a href="http://entertainmentagentblog.com/wp-content/uploads/2010/06/nike-just-do-it2.jpg"><img style="margin-top: 5px; margin-bottom: 5px; margin-left: 10px; margin-right: 10px;" src="http://entertainmentagentblog.com/wp-content/uploads/2010/06/nike-just-do-it2-300x300.jpg" alt="" width="300" height="300" align="right" /></a> phrase are NIKE products. However, not many people know where this phrase comes from.</p>
<p>The phrase, &#8220;Just do it,&#8221; was thought up by the advertising agency, <a title="External Link" href="http://en.wikipedia.org/wiki/Wieden%2BKennedy" target="_blank">Wieden and Kennedy</a>. Wieden and Kennedy is an independent ad agency, started in 1982. It is located in Portland, Oregon, and is famous for its work for NIKE. Dan Wieden, one of the founders of Wieden and Kennedy, credits an interesting source for the creation of the phrase, &#8220;Just do it.&#8221;</p>
<p>On a not so unrelated note, a man was executed in Utah last Friday morning.  Ronnie Lee Gardner was executed by firing squad on Friday, June 18,  2010. When asked if he had any last words, he replied, &#8220;I do not. No.&#8221;  Does anyone think that the last words of a condemned murderer are ripe  grounds for trademark goodwill? In Ronnie Lee&#8217;s case, perhaps not. But Utah&#8217;s  death row is the source of the NIKE trademarked phrase, &#8220;Just do it.&#8221;</p>
<p>In 1972, the Supreme Court ruled that the death penalty was unconstitutional. In 1976, the Supreme Court reinstated the death penalty in a case called <em>Gregg v. Georgia</em>, and Utah immediately wanted to put down one of its inmates who had very recently been convicted of armed robbery and murder. This man&#8217;s name was Gary Gilmore, and he would be the first to die under the reinstated death penalty.</p>
<p><a href="http://entertainmentagentblog.com/wp-content/uploads/2010/06/gary-gilmore.jpg"><img style="margin-top: 5px; margin-bottom: 5px; margin-left: 10px; margin-right: 10px;" src="http://entertainmentagentblog.com/wp-content/uploads/2010/06/gary-gilmore-216x300.jpg" alt="" width="223" height="311" align="left" /></a></p>
<p>Gilmore murdered a gas station employee and a hotel manager. The murders took place after car thefts, assault, and robbery. Growing up, he struggled. His mother and father told him that he was illegitimate, and that he was actually the son of Harry Houdini. His father earned a living selling advertising space in magazines, perhaps helping to secure Gilmore&#8217;s place as the source of a world famous trademark.</p>
<p>On January 17, 1977, Gilmore was executed by firing squad. He requested that, following his execution, his eyes be used in corneal transplants. It is rumored that Gilmore&#8217;s uncle smuggled some Jack Daniels whiskey into the prison for Gilmore to imbibe prior to execution.</p>
<p>After Gilmore was shot by the firing squad, his brother reported that five holes were left in the body, rather than four. Thus, the firing squad did not have the traditional &#8220;blank&#8221; loaded into one of the guns. In the memoirs of the brother, titled <em>Shot in the Heart</em>, &#8220;the state of Utah,  apparently, had taken no chances on the morning that it put my brother  to death.&#8221; When Gilmore was asked for his final words, he said, &#8220;Let&#8217;s do it.&#8221;</p>
<p>This phrase became famous in pop culture. Gilmore&#8217;s life (and death) became the basis for a movie, where <a title="External Link" href="http://www.youtube.com/watch?v=K5gfb1hDOqg&amp;feature=related" target="_blank">Gilmore was played by Tommy Lee Jones</a>. Gilmore inspired one of Jack Nicholson&#8217;s performances, in a movie called <a title="External Link" href="http://www.youtube.com/watch?v=cWOrgHntUR4" target="_blank"><em>The Postman Always Rings Twice</em></a>. An episode of <em>Saturday Night Live</em> featured a skit with a Christmas song satire called, &#8220;Let&#8217;s Kill Gary Gilmore for Christmas.&#8221; Gilmore inspired a UK top twenty hit, called &#8220;<a title="External Link" href="http://www.youtube.com/watch?v=CrwI1gKE4jI" target="_blank">Gary Gilmore&#8217;s Eyes</a>.&#8221; In a deleted scene of an episode of <em>Seinfeld</em>, Jerry says, &#8220;Well, in the immortal words of Gary Gilmore, &#8216;Let&#8217;s do it.&#8217;&#8221; In an episode of the television show <em>Roseanne</em>, Darlene is asked if she is ready to get married, and she says the same thing that Seinfeld said, quoting Gilmore.</p>
<p>While this list of references to Gilmore is not exhaustive, it is certainly highlighted by Wieden and Kennedy&#8217;s use of the phrase, &#8220;Let&#8217;s do it,&#8221; when crafting NIKE&#8217;s &#8220;Just do it.&#8221; Gary Gilmore, the convicted murderer and armed robber, who gave away his corneas, got drunk before getting shot, and was lucid enough immediately before being shot to use a very catchy phrase, would live on in the goodwill of NIKE.</p>
<p>When an article about Gilmore&#8217;s death caught the eye of Dan Wieden, he changed the contours of the phrase slightly, and it became, &#8220;Just do it.&#8221; Thus, a condemned man, who was drunk, who donated his eyes, and was in a rush to just do it (i.e., be shot by five bullets), inspired Dan Wieden to create NIKE&#8217;s famous trademarked phrase. One of the most popular phrases in the world has a dark pedigree that seems to have faded over time. The &#8220;goodwill&#8221; attached to the phrase is likely worth billions.</p>
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		<title>Newzbin Loss is a Win for All</title>
		<link>http://entertainmentagentblog.com/2010/04/06/newzbin-loss-is-a-win-for-all/</link>
		<comments>http://entertainmentagentblog.com/2010/04/06/newzbin-loss-is-a-win-for-all/#comments</comments>
		<pubDate>Tue, 06 Apr 2010 13:13:30 +0000</pubDate>
		<dc:creator>Justin Herzig</dc:creator>
				<category><![CDATA[Entertainment Law]]></category>
		<category><![CDATA[Lead Story]]></category>
		<category><![CDATA[copyright law]]></category>

		<guid isPermaLink="false">http://entertainmentagentblog.com/?p=1086</guid>
		<description><![CDATA[In a court case between The Motion Picture Association (MPA) and Newzbin, the High Court has ruled in favor of the MPA and provided much needed clarity to UK copyright law. In a court case similar to those against Kazaa &#8230; <a href="http://entertainmentagentblog.com/2010/04/06/newzbin-loss-is-a-win-for-all/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p><a href="http://entertainmentagentblog.com/wp-content/uploads/2010/04/newzbin.png"><img class="alignright size-full wp-image-1087" style="margin-top: 51px; margin-bottom: 51px; margin-left: 10px; margin-right: 10px;" title="newzbin" src="http://entertainmentagentblog.com/wp-content/uploads/2010/04/newzbin.png" alt="" width="280" height="210" /></a>In a court case between The Motion Picture Association (MPA) and Newzbin, the High Court has ruled in favor of the MPA and provided much needed clarity to UK copyright law.</p>
<p>In a court case similar to those against Kazaa and The Pirate Bay, the High Court had the duty of determining the law on “internet intermediaries” that allow users to host and download illegal content, even if they may not be supplying it themselves.  The High Court has declared that Newzbin is liable for the copyright infringement of its users as it did “authorize” the downloading by providing a system that encouraged illegal behavior.</p>
<p>Prior to this ruling, UK ISP’s, indexing services, and other online service providers were treading on murky waters, not knowing the true scope of the law due to the lack of any test court cases.  Companies formerly had nothing but a physical tape-to-tape copying case to answer any of their copyright infringement questions.  Silencing those concerns, the High Court has provided enough information to clarify all potential issues.</p>
<p>The High Court held that most of the companies should continue acting as they previously have; they should proceed with “notice and takedown” policies and also implement them.  The High Court stressed the importance of the call to action.  Newzbin was successful on the first front in that it posted warnings telling its users not to infringe on copyright law.  However, their true actions were described as “window dressing” in that the company’s behavior rarely matched its rhetoric as they did little to remove any illegal content from users.</p>
<p>This result should surprise no one, but will provide welcome clarity to European law.</p>
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		<title>Gamer Technology Law Conference</title>
		<link>http://entertainmentagentblog.com/2010/03/22/gamer-technology-law-conference/</link>
		<comments>http://entertainmentagentblog.com/2010/03/22/gamer-technology-law-conference/#comments</comments>
		<pubDate>Mon, 22 Mar 2010 19:11:16 +0000</pubDate>
		<dc:creator>Darren Heitner</dc:creator>
				<category><![CDATA[Entertainment Law]]></category>
		<category><![CDATA[Lead Story]]></category>
		<category><![CDATA[gaming law]]></category>
		<category><![CDATA[law conference]]></category>
		<category><![CDATA[law symposium]]></category>
		<category><![CDATA[video games]]></category>

		<guid isPermaLink="false">http://entertainmentagentblog.com/?p=1083</guid>
		<description><![CDATA[What: A Comprehensive Two-Day Conference When: March 25 &#38; 26, 2010 Where: San Francisco, CA (Sheraton Fisherman&#8217;s Wharf) View the program agenda here. Cutting edge legal and business issues for finance, development, publishing and distribution including: The future of the industry: &#8230; <a href="http://entertainmentagentblog.com/2010/03/22/gamer-technology-law-conference/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p><strong>What: </strong>A Comprehensive Two-Day Conference</p>
<p><strong></strong><strong>When: </strong>March 25 &amp; 26, 2010</p>
<p><strong>Where: </strong>San Francisco, CA (<a title="External Link" href="http://maps.google.com/maps?ie=UTF8&amp;q=Sheraton+Fisherman's+Wharf&amp;fb=1&amp;gl=us&amp;hq=Sheraton&amp;hnear=Fisherman's+Wharf&amp;cid=0,0,11290760290066699961&amp;ei=kr-nS8PuJZS0tgfZsMX_Ag&amp;ved=0CAwQnwIwAA&amp;ll=37.807038,-122.413788&amp;spn=0.009392,0.01929&amp;t=h&amp;z=16&amp;iwloc=A" target="_blank">Sheraton Fisherman&#8217;s Wharf</a>)</p>
<p>View the program agenda <a title="External Link" href="http://www.lawseminars.com/detail.php?SeminarCode=10GAMECA" target="_blank">here</a>.</p>
<p>Cutting edge legal and business issues for finance, development, publishing and distribution including:</p>
<ul>
<li>The future of the industry: Social media and retiring baby boomers</li>
<li>What new technologies are on the horizon?</li>
<li>Litigation update: Top 10 IP cases</li>
<li>Ratings: Differences in rating systems, their significance, and how to avoid adverse impacts from incorrect ratings</li>
<li>Consoles as the media hub in the home</li>
<li>Best business models for long-term survival</li>
<li>Social media platforms and game development</li>
<li>Movie studios and their renewed interest in the video game industry</li>
<li>Buying or selling game companies</li>
<li>Packaging of music and video games together</li>
<li>New developments in employment law</li>
</ul>
<p><strong>Cost: <span style="font-weight: normal;">Standard Rate: $1,245.00 per person, </span><span style="font-weight: normal;">Government Employee: $945.00 per person, Student / New to Job: $622.50 per person. Register <a title="External Link" href="http://mx1.mail.lsinews.com/track?type=click&amp;mailingid=86200&amp;messageid=70700&amp;databaseid=86400&amp;serial=1215056489&amp;emailid=darren@nationalsels.org&amp;userid=8346&amp;extra=&amp;&amp;&amp;2002&amp;&amp;&amp;http://www.lsinews.com/LSI/10/10GAMECA-r.htm" target="_blank">here</a>.</span></strong></p>
<p><strong>Available Credits: </strong><br />
CA MCLE 13 inc 1 Ethics | GA CLE 12.5 inc 1 Ethics | MN CLE pending | NC CLE 12.5 inc 1 Ethics | NY CLE 14.5 inc 1 Ethics (nontransitional) | TX CLE 12.5 inc 1 Ethics | WA CLE 12.5 inc 1 Ethics | Other credits available upon request.</p>
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		<title>Colorado Entertainment Law Symposium</title>
		<link>http://entertainmentagentblog.com/2010/03/21/colorado-entertainment-law-symposium/</link>
		<comments>http://entertainmentagentblog.com/2010/03/21/colorado-entertainment-law-symposium/#comments</comments>
		<pubDate>Sun, 21 Mar 2010 16:47:16 +0000</pubDate>
		<dc:creator>Darren Heitner</dc:creator>
				<category><![CDATA[Entertainment Law]]></category>
		<category><![CDATA[Lead Story]]></category>
		<category><![CDATA[Colorado]]></category>
		<category><![CDATA[symposium]]></category>

		<guid isPermaLink="false">http://entertainmentagentblog.com/?p=1080</guid>
		<description><![CDATA[My friend Steve Erwin is hosting (ast the Chair of the Colorado Bar Entertainment &#38; Sports Law Section) the following event, which offers CLE credits. When: April 2, 2010 9:00 AM &#8211; 12:45 PM Where: CLECI Large Classroom, 1900 Grant Street, &#8230; <a href="http://entertainmentagentblog.com/2010/03/21/colorado-entertainment-law-symposium/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>My friend Steve Erwin is hosting (ast the Chair of the Colorado Bar Entertainment &amp; Sports Law Section) the following event, which offers CLE credits.</p>
<p style="text-align: center;"><a href="http://entertainmentagentblog.com/wp-content/uploads/2010/03/colorado.jpg"><img class="size-full wp-image-1081 aligncenter" title="colorado" src="http://entertainmentagentblog.com/wp-content/uploads/2010/03/colorado.jpg" alt="" width="560" height="144" /></a></p>
<p><strong>When: </strong>April 2, 2010 9:00 AM &#8211; 12:45 PM</p>
<p><strong>Where: </strong>CLECI Large Classroom, 1900 Grant Street, Suite 300, Denver CO 80203, (303) 860-0608<br />
<strong> </strong></p>
<p><strong>CLE Credits:</strong></p>
<ul>
<li>General credits: 4.00</li>
<li>Ethics credits: 1.00</li>
</ul>
<p><strong> Cost:</strong></p>
<ul>
<li>Non member $209.00</li>
<li>CBA Member $189.00</li>
<li>Gaming Entertainment &amp; Sports Section Members $169.00</li>
<li>New Lawyers (in practice 2 yrs. or less) $149.00</li>
<li>CBA Student Member $25.00</li>
<li>Student Non-member (ID required) $95.00</li>
</ul>
<p><strong>Description: <span style="font-weight: normal;">In this rapid-fire half-day program, nationally recognized Entertainment Attorneys, Music Artist Managers and film executives discuss entertainment industry ethics, hot button legal and litigation issues, music industry developments and how to get a film made in Colorado.</span></strong></p>
<p><strong>Agenda:</strong></p>
<p>8:30 &#8211; 9:00	a.m. - Registration &amp; Continental Breakfast</p>
<p>9:00 &#8211; 9:50 a.m. - Film Panel<br />
- The How to Get a Film Made in Colorado will include a step by step analysis of the process of cutting through the legal red tape of getting a film made from tax incentive issues to permitting.</p>
<p>9:55 &#8211; 10:45 a.m. - Entertainment Law Ethics<br />
- This topic will include a detailed discussion of ethics in the entertainment industry from multi-state practice issues to conflicts of interest</p>
<p>10:45 &#8211; 11:00 a.m. - Networking Break</p>
<p>11:00 &#8211; 11:50 a.m. - Entertainment Law Litigation Update<br />
- Entertainment law litigation and hot legal issue update including developing trends in video and music content ownership in digital media and video games,  films and the Internet</p>
<p>11:55 &#8211; 12:45 p.m. - The Convergence of Major Record Labels and Major Management Firms: Who wins the 360 Deal Battle<br />
- A Discussion on the convergence of management firms and major labels including a review of 360 deal trends and contract terms from both management and label perspectives, updated negotiation deal points in management and label deals, the role of managers in the new label environment and what the industry may look like in 10 years.</p>
<p>12:45 p.m. - Adjourn</p>
<p><strong>Faculty</strong></p>
<p><span style="text-decoration: underline;">Stephen Erwin, Program Chair</span><br />
Highlander Wealth Services, LLC<br />
Boulder, CO</p>
<p><span style="text-decoration: underline;">Ken Abdo</span><br />
Vice President<br />
Lommen, Abdo, Cole, King &amp; Stageberg, P.A.<br />
Minneapolis, MN</p>
<p><span style="text-decoration: underline;">Alex Brahl</span><br />
Red Light Management<br />
Denver, CO</p>
<p><span style="text-decoration: underline;">Julie Crane</span><br />
Executive Director<br />
Screen Actors Guild<br />
Colorado and New Mexico</p>
<p><span style="text-decoration: underline;">David Given</span><br />
Partner &amp; Co-Founder<br />
Phillips Erlewine &amp; Given<br />
San Francisco, CA</p>
<p><span style="text-decoration: underline;">Debra Hodgson</span><br />
Law Office of Debra Hodgson<br />
Greenwood Village, CO</p>
<p><span style="text-decoration: underline;">Dave Ratner</span><br />
Replin, Rhoades &amp; Roper, LLC<br />
Denver, CO</p>
<p><span style="text-decoration: underline;">Kevin Shand</span><br />
Director<br />
Colorado Office of Film, Television &amp; Media<br />
Denver, CO</p>
<p><span style="text-decoration: underline;">Stan Soocher</span><br />
Associate Professor, Music &amp; Entertainment Industry Studies<br />
University of Colorado<br />
Denver, CO</p>
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		<title>European Parliament Votes to Lower ACTA Opacity</title>
		<link>http://entertainmentagentblog.com/2010/03/15/european-parliament-votes-to-lower-acta-opacity/</link>
		<comments>http://entertainmentagentblog.com/2010/03/15/european-parliament-votes-to-lower-acta-opacity/#comments</comments>
		<pubDate>Mon, 15 Mar 2010 17:21:03 +0000</pubDate>
		<dc:creator>David Greene</dc:creator>
				<category><![CDATA[Entertainment Law]]></category>
		<category><![CDATA[Lead Story]]></category>
		<category><![CDATA[ACTA]]></category>
		<category><![CDATA[European Parliament]]></category>
		<category><![CDATA[European Union]]></category>

		<guid isPermaLink="false">http://entertainmentagentblog.com/?p=1070</guid>
		<description><![CDATA[Social networking is great. How else would a third-year law student become &#8220;friends&#8221; with a member of European Parliament (MEP) if not for Facebook? An MEP from Scotland happens to be my Facebook friend. After Nick Sarkozy implemented his &#8220;three-strikes&#8221; &#8230; <a href="http://entertainmentagentblog.com/2010/03/15/european-parliament-votes-to-lower-acta-opacity/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p><a href="http://entertainmentagentblog.com/wp-content/uploads/2010/03/European-parliament.jpg"><img style="margin-top: 5px; margin-bottom: 5px; margin-left: 10px; margin-right: 10px;" src="http://entertainmentagentblog.com/wp-content/uploads/2010/03/European-parliament-300x200.jpg" alt="" width="300" height="200" align="left" /></a>Social networking is great. How else would a third-year law student become &#8220;friends&#8221; with a member of European Parliament (MEP) if not for Facebook?</p>
<p>An MEP from Scotland happens to be my Facebook friend. After <strong>Nick Sarkozy</strong> implemented his &#8220;three-strikes&#8221; laws in France, the Scottish MEP made his voice heard, which caught my attention. He, along with many other MEPs, believed that one&#8217;s internet access should not be terminated unless there was a prior judicial ruling &#8211; in contrast to Sarkozy&#8217;s laws, which allow termination of internet access at the administrative level. This was around the time that ThePirateBay was shut down, and its founders sentenced to prison and ordered to pay damages. The MEP even had a web page advocating his position, with links to his Facebook page. Naturally, I clicked on his Facebook page and added him as a friend.</p>
<p>Now for the topic of this post: the <strong>Anti-Counterfeiting Trade Agreement</strong> (ACTA) &#8211; a far reaching and secretly negotiated treaty that may soon come into effect. This treaty, lobbied heavily by the motion picture industries and recording industries, has vast potential when it comes to reducing civil liberties. For example, the ACTA may subject you to searches of your laptop&#8217;s hard disk contents before any international flight (also applicable to iPhones, mp3 players, phones, and anything else that is arguably a computer). Or, imagine if Comcast could terminate your internet access permanently without a court of law having to say you did anything wrong (which is the state of affairs in France thanks to Sarkozy).</p>
<p>This treaty has been under secret negotiations since 2008. On March 10, 2010 however, the European Parliament voted for &#8220;maximum transparency&#8221;, among other things. My Facebook friend sent me the debrief from his group staff member:</p>
<blockquote><p>&#8220;with an overwhelming majority of  633 : 13 : 16, the ACTA resolution was  carried. The key Par 3 on transparency was carried even with 651 : 3 :  16 votes.</p>
<p>This overwhelming majority had been our Green  political objective from the beginning, and we achieved it. However, it  has not been easy, and it is to be seen whether this unity will hold in  the upcoming months of the political struggle on the contents of ACTA  and the (transparent or opaque) way it is negotiated.</p>
<p>Nightly  backdoor deals and strange demands for separate and split votes had made  the outcome of the vote doubtful until virtually the last minute. Many  of our Green MEPs had to intervene on many fronts at strange hours;  thanks to them all, wholeheartedly. They made that the first victory on  ACTA is ours.</p>
<p>On the controversial issues, we obtained a  sufficient majority:</p>
<p>- against EPP/ECR, the second part of Para 2  on the democratic legitimacy of the of the EU engagement in the ACTA  negotiations was carried with 363 : 292 : 5</p>
<p>- our Amendment  (together with ALDE) critizising the &#8220;calculated choice of the ACTA  parties&#8221; to negotiate outside the frameworks of WIPO or WTO, was caried  by the narrow margin of 331 : 326 : 8 (sorry, no RCV avaliable on this)</p>
<p>- our key amendment (together with SD) calling to continue ACTA  negotiations but limit it on just the issue of Counterfeiting of  Trademarks or Geographical Indications (hence cutting the entire  dimension of copyrights and patents out of the ACTA negotiations) was  carried with a large majority of 513 : 129 : 17. This is arguably the  most important content message of the entire resolution, on which we  need to build in the coming months. It was equally the paragraph on  which the nightly skirmishes had focussed</p>
<p>- our amendment  together with SD, ALDE and GUE to guarantee access to legitimate,  affordable and safe medicinal products, including generics and  innovatives, was carried by a grand majority of 573 : 60 : 22, proving  again that the 5 year old EP unity on TRIPS and Health still holds.</p>
<p>Moreover,  a GUE amendment was carrie calling on ACTA negotiators to establish a  clause that no individual can be cut off of the Internet without a prior  court case (346 : 306 : 12). This is important in the follow-up to the  Telecom Package (though in the frame of the ACTA resolution the point is  slightly out of frame, since we have the resolution say that ACTA  should not have any clause on &#8220;three Strikes&#8221; in the first place.</p>
<p>As  soon as RCVs are available, we will give you a more detailed picture  about the contested items.&#8221;</p></blockquote>
<p>In other words, European Parliament voted for transparency, voted to limit the ACTA negotiations to Trademarks and Geographical Indications, and voted in favor of establishing a clause in the ACTA so that no individual can be cut off of the Internet without a prior court case.</p>
<p>This is not the final word on the issue of the ACTA negotiations. The effect of this vote is basically a statement of the position of Parliament. They have expressed their wishes in the context of the ACTA, but do not have absolute legislative authority in the European Community, and even less authority when the rest of the prospective signatories to the ACTA (those situated outside of the European Community, like the US) are considered. The European Parliament and the Council of the European Union together form the bicameral legislative branch of the European Community, thus requiring the Council to approve the votes before the positions voted for may become effective. However, there has been talk of the European Parliament bringing a complaint to the European Court of Justice in the event that its resolutions do not carry their intended weight.</p>
<p>In summation, European Parliament has taken a position on transparency of the negotiations &#8211; it wants the negotiations to continue with maximum transparency. European Parliament also took a stand against laws like Sarkozy&#8217;s &#8211; it does not want a user&#8217;s Internet access to be terminated without a prior judicial ruling. Finally, the Parliament voted to limit the negotiations of the ACTA to trademarks and geographical indications.</p>
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		<title>Australia Rules Against Hollywood</title>
		<link>http://entertainmentagentblog.com/2010/02/21/austrailia-rules-against-hollywood/</link>
		<comments>http://entertainmentagentblog.com/2010/02/21/austrailia-rules-against-hollywood/#comments</comments>
		<pubDate>Sun, 21 Feb 2010 15:36:28 +0000</pubDate>
		<dc:creator>Gene Goodsell</dc:creator>
				<category><![CDATA[Entertainment Law]]></category>
		<category><![CDATA[Lead Story]]></category>
		<category><![CDATA[Australia]]></category>
		<category><![CDATA[iinet]]></category>

		<guid isPermaLink="false">http://entertainmentagentblog.com/?p=1012</guid>
		<description><![CDATA[Recently, the Australian Federal Court decided that the ISP iiNet was not liable to a group of the largest Hollywood studios including Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox and Disney. This was &#8230; <a href="http://entertainmentagentblog.com/2010/02/21/austrailia-rules-against-hollywood/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p><a href="http://entertainmentagentblog.com/wp-content/uploads/2010/02/iinet.jpg"><img style="border: 0pt none; margin: 5px 10px;" title="iinet" src="http://entertainmentagentblog.com/wp-content/uploads/2010/02/iinet.jpg" alt="" width="319" height="194" align="right" /></a>Recently, the Australian Federal Court decided that the ISP <strong>iiNet </strong>was not liable to a group of the largest Hollywood studios including Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20<sup>th</sup> Century Fox and Disney.</p>
<p>This was the first Australian trial to be covered on Twitter – demonstrating the enormity of the case.</p>
<p>The case was important because it set a legal precedent as to what ISPs are required to do to prevent customers from downloading movies and other content illegally.</p>
<p>In a 200 page judgment, Justice Cowdroy held that the evidence established that iiNet had done no more than provide an Internet service to its users. It was found that the ISP provided a legitimate communication facility which was neither intended nor designed to infringe copyright.</p>
<p>The studios claimed that the ISP was liable for authorizing copyright infringement because it failed to warn offending customers when repeatedly notified of the infringements by the studios. The studios had hired an online investigatory firm to intercept BitTorrent traffic and record instances of iiNet users downloading pirated movies.</p>
<p>This decision appears to be consistent with the theory of secondary copyright liability developed in the US case of <em>Sony v Universal</em>: the lack of control over the system meant that iiNet had no legal responsibility over its users, despite knowledge that some users were infringing copyright.</p>
<p>As far as Australia goes, this case proves that if you provide facilities that assist in infringement but you do not have control and do not act in bad faith, you will not be liable for secondary copyright infringement.</p>
<p><em> </em></p>
<p><em>Gene Goodsell is the Managing Director of an entertainment management firm (<a href="http://www.navitasmgmt.com/">www.navitasmgmt.com</a>) and law firm that specialises in media &amp; entertainment law (<a href="http://www.navitaslegal.com/entertainment-law.php">http://www.navitaslegal.com/entertainment-law.php</a>). Both firms are based in Sydney but have strong links to agencies, management firms and law firms in Los Angeles. Please contact Gene regarding any global media &amp; entertainment issues. </em></p>
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