Exxxotica NJ: “Breaking into the Biz” Seminar Nov 9-11th

On October 18, 2012, in Life, by adultbizlaw

If you are interested in getting into the adult business as a producer, director or even as a pornstar (or just want to hear some behind the scenes stories) and live within driving distance of Edison, NJ then you should come to Exxxotica Expo and my seminar series. I will be doing a seminar on all 3 days of the show, each a little different so if possible come all 3 days and learn the “ins & outs” of the porn business.

Buy your tickets here -> http://nj.exxxoticaexpo.com/tickets/

From ExxxoticaExpo.com

Breaking Into The Biz: A How-To Guide To Getting Into The Adult Industry
Moderated by Michael Fattorosi, Adult Industry Attorney

Single-handedly the most asked question we get is, “How do I get into the biz?” Well, here’s your chance! What do you really need to know to break into the biz? Whether you want to be a webcam model, fetish producer or even a pornstar, this seminar can show you how you can be making money by the next day! Need some extra cash to help pay the mortgage or even the car? A few hours on cam and you can have it. Want to try your hand at being a director or performer but dont know how to set up a website or distribute your movies? We can show you how! The industry is easier now more then ever to get into so come learn how to grab a piece of a $10 billion dollar a year industry for yourself!”

Make sure you click here and “Like” or “Tweet” my seminar -> http://nj.exxxoticaexpo.com/seminar-breaking-into-the-biz/

Porn 101: Copyright, Piracy and the DCMA

On October 8, 2012, in Legal, by adultbizlaw

One comment I hear the the most often is from new webmasters and content producers complaining that their content has been stolen and posted on a tubesite/torrent/message board. Their letters almost always have a desperate tone since the webmasters/content producer has tried everything possible to ask the infringer to take the content down only to be stonewalled or ignored completely. Obviously, it is quite upsetting to know that all their hard work is simply being stolen and posted by others to enjoy for free.

Before I can discuss the Digital Millennium Copyright Act, it is first important to discuss copyright. Volumes upon volumes of legal treaties and text have been written about copyright. It is strongly suggested that anyone that produces content to read everything they can about the protections that having a copyright registration can provide. It is simply too voluminous to discuss in a blog post here. Google is your friend.

However, it is vitally important that as a content producer that you copyright all of your content. Sending your content to the U.S. Copyright Office is rather easy. Usually my clients do it themselves. It is also rather inexpensive depending on the volume of content you want to copyright. You can even do it online through the U.S. Copyright Office’s website ( Please see: http://www.copyright.gov/eco/ )

The fee is a mere $35.00 and you can even upload the content directly to the copyright office. You do not even need to go to the post office ( Some types of content does require a hardcopy to be mailed in ). The U.S. Copyright Office even provides a step by step tutorial on how to register your content online ( Please see: USCopyrightOnlineSubmissionTutorial ).

No content producer/webmaster can complain that his/her work is being copied and distributed for free on the Internet if they have not taken the time to register their content and receive the all the protections a registration can afford. Most circuits within the federal court system REQUIRE a completed and returned federal copyright registration BEFORE you can even file a copyright infringement lawsuit against another party. Some circuits just require that the registration has been filed but not completed. Be aware though, if the U.S. Copyright Office rejects your content registration for some reason and you have already filed the lawsuit the court will more than likely dismiss your case.

Therefore, it is imperative that before you release your content to the world that you take the time to register the movie/scene/website content with the U.S. Copyright Office. There are vast differences as to what you can recover in court between having a preregistered work and work that is registered AFTER someone steals it. Preregistration can make the difference between hundreds of thousands of dollars versus not having a lawsuit at all. If your content is registered you are entitled to statutory damages under copyright law. If it is registered after the infringement you will only be entitled to “actual damages” ( Please see:  http://www.copyright.gov/title17/92chap5.html )Which means you have to show how much money you actually lost because of the infringement. To do so you will need to hire a copyright expert witness to testify (you cannot testify as to how much you lost) which will cost you an average of $5,000 to $20,000.

The DMCA is another rather complicated law that is not easy to understand, even for lawyers. However, if you are going to produce content and/or be in the business of online content management and websites, you need to be familiar with it ( Please see: http://www.chillingeffects.org/dmca512/faq.cgi ). Like copyright law, volumes have been written about the DMCA and the more the you know the better you will be able to handle theft of your content.

Before you can simply file a copyright lawsuit for an online copyright infringement, you must follow the procedures set forth in the DMCA as to providing the possible infringer with notice of their infringement ( Please see: http://www.chillingeffects.org/dmca512/question.cgi?QuestionID=130 ). That website will then give the infringer your “DMCA takedown request” and the infringer then has the right to send a DMCA counter-notification saying that they are the real copyright holder. Thus, you may now see the importance of having your content registered with the U.S. Copyright Office.

Assuming that you have not registered your work with the U.S. Copyright Office, this is where you are stuck. However, having the registration in hand you can easily show that you own the content. And further, that if it is not removed you are ready and able to file a lawsuit over its illegal use. Be aware though that even the most basic copyright infringement lawsuit will cost upwards of $100,000.00 in fees and costs to litigate.

Depending on the amount of content you produce sending out DMCA take down notices can be overwhelming for a small content studio or webmaster. My advice is to hire a company such as Take Down Piracy to do so for you or your company ( Please see: http://takedownpiracy.com ). Since their inception they have sent nearly 11 million DMCA take down notices to all types of websites including Google. That is no easy feat but they do have an automated process that will not only send out the DMCA take down notices but they will also monitor the Internet for illegal infringement of your content. It is far more cost effective to have Take Down Piracy do this then doing it yourself or hiring a lawyer to do it.

Obviously I could spend pages discussing this one topic, however, the most important aspect to understand is that if you are going to produce content and put it on the Internet for sale you MUST register that content with the U.S. Copyright Office before you post it to your website. Also, hire a take down service such as Take Down Piracy to monitor your content and send out notices on your behalf. The actual DMCA take down notice has to be rather specific to have any legal validity. A simple email asking them to take down your videos will not suffice under the law. The combination of preregistering your work and using a take down service will help in protecting your content. However, no system is fool-proof. Your content will still get posted and it will still be infringed. That, unfortunately, is a fact of life with the Internet.

Whether you have a membership website, a free blog, a Clips4Sale store or distribute DVDs, protect your work and get it registered!

 

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Who Owns Your Content?

On July 30, 2012, in Legal, Published Articles, by PornLaw

http://www.xbiz.com/articles/19639/fattorosi

Copyright is an extremely broad subject that could literally require an entire textbook to fully discuss and debate, but taking stock and questioning the very ownership of your content library is crucial.

Work-for-hire agreements and how they affect your business — whether you contract for or shoot adult content for any media — is a major first step toward defining what you own and securing your future as a producer and purveyor of adult content.

Most studios, directors and cameramen truly believe that the person who pays for the content owns it. This is not necessarily true.

Works created as part of one’s job, referred to as “works for hire” are treated differently than those works created by independent authors and independent contractors. An employer is entitled to the fruits of his or her employees’ labor. Section 101 of the Copyright Act of 1976 defines a work made for hire as:

1) a work prepared by an employee within the scope of his or her employment; or a work specifically ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

There are two ways to create a work made for hire. The first is through an employment relationship between the commissioning party and the creator of the work. For example, a studio hires a director-cameraman and editor and places that person on salary paid through a payroll by the studio with taxes being withheld and deducted from his or her pay. This is a typical employer-employee relationship, irrespective of the industry.

According to Section 201(b) of the Copyright Act: 1) [T]he employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised by the copyright.

From my experience, many studios hire directors, cameramen and editors as independent contractors and not payrolled employees. This can and will create a relationship that cannot be classified as an employer-employee, which then means that unless the studio has a signed work-for-hire agreement from all parties that had creative input into your scene or movie, they, not the studios, actually jointly own all the rights pertaining to that work. Further it should be noted that the director, cameraman and editor have merely granted the studio a nonexclusive license in the content, which can be rescinded and revoked at anytime by the joint copyright owners.

Independent Contractors
An independent contractor can be defined as a person who renders service in the course of an independent employment and who follows the employer’s desires only as to the results of the work, not as to the means whereby it is to be accomplished. Further, it is a common practice within the industry to claim that anyone on an adult production set is an independent contractor and not an employee. In an effort to save the studio on payroll taxes and the necessary workers compensation insurance, this is a common mistake that can have dire consequences when it comes to who owns the copyrights to the content that has been procured.

Without a work-for-hire agreement signed by the director-cameraman and editor, a studio will not own the content they have paid for. With every independent contractor agreement, a corresponding work for hire agreement must also be executed. Without a signed agreement, copyrights cannot be waived.

For years the debate as to whether a specific work was a “work made for hire” was a source of great confusion. However, in 1989 the U.S. Supreme Court resolved much of the confusion surrounding the issue of who was an “employee” and who was an “independent contractor.”

The court concluded that “common law agency principles” must be used to determine whether the work was prepared by an employee or an independent contractor. The court enumerated several factors in determining whether a hired party qualifies as an employee or is instead an independent contractor: (1) the hiring party’s right to control how the work was accomplished, (2) the skill required, (3) who provided the materials and tools, (4) where the work was performed, (5) length of relationship between the parties, (6) whether the hiring party could assign additional projects to the hired party, (7) extent of hired party’s discretion over when and how long to work, (8) method of payment, (9) who hired and paid assistants for the project, (10) whether the work was part of the hired party’s regular business, (11) whether the hiring party is in business, (12) did the hiring party pay employee benefits, and (13) the tax treatment of the hired party.

The Supreme Court also stated that these factors were not an exhaustive list. No single factor was determinative of whether a hired party would be considered an employee. The significance of this Supreme Court decision was its conclusion that the two prongs of the “work made for hire doctrine” were mutually exclusive. Furthermore this decision restricted the “work made for hire” doctrine under the first prong to “actual” employees while the second prong was held to be only applicable to independent contractors.

As an aside, it should be noted that the Copyright Act imposes two requirements to create a work-for-hire situation for specially commissioned works created by independent contractors that apply to the adult industry. The first relevant aspect is (1) a contribution to a collective work and (2) a part of a motion picture or other audiovisual work. Obviously these two do apply to the industry. Therefore, without a signed release that is unambiguous as to the agreement waiving copyright, the independent contractor retains all copyrights.

What does this mean for you? Well, if you are a director who owns his or her own production company and have shot content for numerous studios and have not signed a work-for-hire agreement, you may still own the copyrights to all that content and could revoke the studio’s rights to use, display and profit from your work.

A director who does not own his or her own production company but still has worked for several studios and has not signed a work-for- hire agreement, then you also still may own your work and have the studio’s rights rescinded accordingly. Further, you very well might be entitled to a share of the profits from the sale of your work.

Agreements Are Key
If you are a studio or a party that commissions adult content, use work-for-hire agreements liberally. If you have not used such an agreement in the past and have not paid those with creative input via a payroll with taxes deducted, you might not own the rights to the content that you are profiting from. Eventually, your studio may be forced to share those profits with the director-cameraman and editor and/or be forced to stop distributing the content in question.

Basically anyone who has creative input into the final product could have a copyright interest in it. Therefore, work-for-hire agreements should be invoked liberally when attempting to decide who to provide one of these contracts or forms to.

It is better to have too many potential independent contractors execute them rather than make a mistake as to who may or may not have creative input into your content.

More specifically, the following guidelines should be followed to help you obtain and retain copyright ownership of creative works that are intended to qualify as a “work made for hire.”

1. Have a written contract between you (the studio) and any independent contractors who may be “hired” (directors, photographers, videographers, editors etc.).

2. Have a written “work made for hire” agreement with all freelancers and independent contractors who create works that you want to qualify as a work made for hire.

Merely stating that this is a “work made for hire” agreement does not make it one; all the requirements of the independent contractor prong must be satisfied.

3. Make sure the written work-made-for-hire agreement is signed by both parties before the creation of the work.

4. Include an appropriate “assignment” clause in the work-made-for-hire agreement that will serve as a backup if the work does not qualify as a “work made for hire.”

It is strongly recommended that you contact an attorney familiar with copyright law and work-for-hire agreements to further discuss the issues raised by this article in regards to your business or rights.

This article is not exhaustive on this particular issue, and there may be conflicting laws and standards depending on what geographical region in which you operate your business.

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