[Fmpro] infringe or not?

[CORBERLAW@aol.com]

In a message dated 5/21/2008 5:04:04 AM Pacific Daylight Time,  
fmpro-request at nxport.com writes:

Message:  5
Date: Wed, 21 May 2008 06:32:13 +1000
From: Mark Northam  <markn at gmocorp.com>
Subject: Re: [Fmpro] Is this plagarism?
To:  <fmpro at nxport.com>
Message-ID:  <C459726D.4E15B%markn at gmocorp.com>
Content-Type: text/plain;   charset="ISO-8859-1"

You may want to consider an "indemnity  agreement" at this point, in my
opinion.

They are asking YOU to get  close to the line copyright-wise, so they need to
take the financial  risk.

An indemnity agreement says, basically, that the production  company
"indemnifies you" for any consequences that occur as a direct  result of
their actions in this matter. To indemnify means to "hold  harmless", meaning
they would pay your legal bills if you were sued for  copyright infringement,
and they would assume any and all risks (including  those to you) of this
action. In essence, they assume 100% of the  risk.

This is one of those areas that tends not to matter if the  project isn't a
commercial success. But if for any reason the project IS a  commercial
success, you may find yourself dealing with a different set of  people who
may feel quite differently about copyright infringement if there  are
suddenly "deep pockets" (as in, a financial successful project) to go  after.


Best,

Mark N.


Greetings, Mark.  I'm back from a near death experience, a  coma and "kaiser 
hell."   
 
Mark makes an excellent suggestion.  More than that, the  production company 
ought to get a rider to their e&o policy covering your  work.  What is amusing 
and annoying is how a production company will ask  you to infringe or emulate 
another's work but still expect you to certify all  work is your original 
work and not an infringement on another's rights.   This was the case with a 
composer I represented in connection with some animated  shorts for Dreamworks.  
Dreamworks wanted him to copy the style of  another's works, yet sign a 
contract certifying that all music was original with  the client.  I modified the 
contract to protect my client and Dreamworks  had no problem with it, in fact I 
heard later they incorporated what I wrote  into their standard contract.
 
Contracts should be, ideally, in many respects, mirror images, if  they have 
a right so should you.  Most contracts have both a certification  of 
originality clause and an indemnification clause (basically, if the company  gets sued 
because of your work, you pay all their bills, including attorney's  fees to 
fight the suit--which could take all the money they paid you and more  out of 
your pocket).
 
Despite that, if your work can be proven to be a true parody, the  first 
amendment might protect you from an infringement suit but you'd still have  to pay 
all the defense costs of that suit.
 
If you're truly concerned, you might want to consult an expert on  such 
things.
 
Good luck.
 
Brian Lee Corber
_corberlaw at aol.com_ (mailto:corberlaw at aol.com) , 



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