Broker Check

Webinar Transcript: Navigating Copyright Law and Preserving Creator Intent”

May 16, 2024

Webinar Transcript (5/16/2024): “Unraveling the Challenges in Estate Planning: Navigating Copyright Law and Preserving Creator Intent”

 

Host: Jonathan I. Shenkman, President & Chief Investment Officer of ParkBridge Wealth Management (Contact: jonathan@parkbridgewealth.com)

 

Speakers: Marc Misthal, Principal, Offit Kurman (marc.misthal@offitkurman.com) and Michelle Yeung, Associate, Offit Kurman (michelle.yeung@offitkurman.com)

 

1

00:00:05.590 --> 00:00:28.060

Jonathan Shenkman: Good morning and welcome to the Park Bridge, Wealth Management Spring Webinar Series. This program is entitled Unraveling the Challenges in Estate Planning, navigating copyright law and preserving Creator int content. As always. My name is Jonathan ShEnkman. I'm the President, chief investment officer of Park Bridge. Wealth management. In that role I serve in a fiduciary capacity to help my clients achieve their financial objectives.

 

2

00:00:28.060 --> 00:00:43.300

Jonathan Shenkman: the goal of my programs to bring professionals together, to help them better serve their content. This better serve their clients. This is done by educating attendees on the latest topics and wealth planning, and by encouraging collaboration between a client's attorney, Cpa. And financial Advisor, where appropriate

 

3

00:00:43.300 --> 00:00:51.549

Jonathan Shenkman: my practice focused on working with high net, with families, businesses, and not for profits. I manage individual investment portfolios, trust accounts, corporate retirement plans.

 

4

00:00:51.550 --> 00:01:14.210

Jonathan Shenkman: and endowments to help my clients achieve their financial goals. In addition to the 20 or so events, I run every year. I also do a fair amount of writing on the topics of investing in financial planning, and you could read my work in a variety of periodicals, including Barron, Cnbc. Forbes, Kipling, or the Wall Street Journal and Trust in Estates Magazine to name just a few. You could also see all my work on my website at Parkbridge, wealthcom, forward slash articles.

 

5

00:01:14.210 --> 00:01:36.280

Jonathan Shenkman: or by follow me on social media at Jonathan, on money. Additionally, you could check out my week, my weekly, podcast which is also called Jonathan on money, and you could listen, then, apple, spotify, or wherever you get your podcast, before I introduce our esteemed speakers today, please pay close attention. If you are an attorney or a Cpa. In Connecticut, New Jersey, or New York, and are taking this program for credit.

 

6

00:01:36.280 --> 00:01:46.430

Jonathan Shenkman: I'll be giving a code during this program that you will need to write down. There will only be one code. It will be given at some point in the middle of the session. So have a pen and paper ready

 

7

00:01:46.970 --> 00:01:57.419

Jonathan Shenkman: after the program you'll receive an evaluation form it. Will you need to insert the code in order to receive credit. Please stick around until the end of the program for further instructions on receiving credit.

 

8

00:01:57.580 --> 00:02:18.030

Jonathan Shenkman: Today we're privileged to hear from Mark Mustal and Michelle Young from Afik Herman, based in New York City. Mark is a principal attorney in the firm's intellectual property Practice group with a wide range of clients worldwide. Mark provides counsel to businesses spanning diverse industries, including fashion, apparel, computer technology, hospitality, entertainment, luxury, goods.

 

9

00:02:18.030 --> 00:02:31.450

Jonathan Shenkman: consumer goods, and many others. As part of his practice. Mark has represented clients in Federal courts around the country, defending and prosecuting claims of trademark, trade, dress, and copyright infringement, and, when necessary, obtaining injunctive relief.

 

10

00:02:31.450 --> 00:02:54.230

Jonathan Shenkman: Mark's experience extends to negotiating license agreements, working with law enforcement to comp out counterfeiting, filing and prosecuting trademark applications before the Us. Patent Trademark Office and filing applications to register copyrights with the Us. Copyright Office. Michelle concentrates her practice on estate and tax planning Medicaid and special needs, planning and trust in estates administration in New York.

 

11

00:02:54.230 --> 00:03:04.469

Jonathan Shenkman: Michelle works closely with multigenerational families, with special needs, minor or adult children, same-sex couples, property and business owners and individuals with all levels of wealth.

 

12

00:03:04.470 --> 00:03:29.449

Jonathan Shenkman: Michelle prepares wills and various types of trust, such as generation skipping, tax, trust, credit, shelter, trust, Medicaid asset, protection, trust, supplemental needs, trust, life insurance trust, and many more. In addition, Michelle works closely with families and individuals to protect their assets and to minimize their Federal and New York estate tax liabilities. Today Mark and Michelle will be speaking about unraveling the challenges in estate, planning, navigating copyright law and preserve

 

13

00:03:29.450 --> 00:03:34.560

Jonathan Shenkman: Creator intent. And with that introduction I will now turn the program over to Mark and Michelle.

 

14

00:03:35.850 --> 00:03:55.890

Marc Misthal: Jonathan. For that very kind introduction. Good morning, everybody. We're glad that you could join us. And Jonathan, thank you for inviting for us to present. We appreciate the opportunity before we get started with the substance of the presentation. Just one thing to mention.

 

15

00:03:56.498 --> 00:04:01.520

Marc Misthal: Michelle and I are both with Alfred Kerman. Alfred Kerman is a

 

16

00:04:01.620 --> 00:04:11.510

Marc Misthal: full service law firm. As Jonathan mentioned. I am in the intellectual property group, and Michelle is in the Trust and Estate group.

 

17

00:04:12.673 --> 00:04:17.900

Marc Misthal: With that, I think we're gonna dive right in and and get started. So.

 

18

00:04:17.950 --> 00:04:21.439

Marc Misthal: Michelle, if you could advance us a couple of slides

 

19

00:04:21.959 --> 00:04:28.179

Marc Misthal: for anybody who didn't catch the the bio. There it is, Michelle. Let's go right to the next one.

 

20

00:04:28.490 --> 00:04:29.789

Michelle Yeung: My Bio.

 

21

00:04:30.850 --> 00:04:41.159

Marc Misthal: And this is just a short agenda of the topics that we're going to be covering today. The program today focuses really focuses on copyright.

 

22

00:04:41.754 --> 00:04:43.050

Marc Misthal: Because there are some

 

23

00:04:43.060 --> 00:04:46.330

Marc Misthal: particular statutory provisions that affect

 

24

00:04:46.800 --> 00:04:50.134

Marc Misthal: copyright, and how it can be

 

25

00:04:50.720 --> 00:04:54.380

Marc Misthal: weft to one's successors and heirs.

 

26

00:04:56.210 --> 00:05:00.279

Marc Misthal: so with that, let's get started. So, Michelle, if you can

 

27

00:05:00.690 --> 00:05:02.820

Marc Misthal: go right to the next slide. Thank you.

 

28

00:05:03.540 --> 00:05:07.690

Marc Misthal: Just to start off. We're going to talk about copyright and what it protects.

 

29

00:05:07.760 --> 00:05:09.280

Marc Misthal: We've got the

 

30

00:05:09.810 --> 00:05:13.650

Marc Misthal: definition right there on the screen from the statute.

 

31

00:05:14.450 --> 00:05:20.119

Marc Misthal: Copyright protects original and creative works of authorship fixed in a tangible medium of expression.

 

32

00:05:20.700 --> 00:05:27.779

Marc Misthal: There's a lot in there. So let's unpack that. You can see we've defined some terms up on the screen.

 

33

00:05:29.390 --> 00:05:33.559

Marc Misthal: original and create creative kind of go together.

 

34

00:05:34.248 --> 00:05:41.879

Marc Misthal: Is not a very high threshold for what is original. That generally means something that's not copied.

 

35

00:05:43.058 --> 00:05:48.239

Marc Misthal: Creativity is also pretty low threshold. There's a Supreme Court case that says.

 

36

00:05:48.580 --> 00:05:56.849

Marc Misthal: the way that you organize a phone book might be sufficiently creative as long as it's not the standard ABC,

 

37

00:05:57.615 --> 00:05:58.370

Marc Misthal: listing

 

38

00:05:59.370 --> 00:06:04.189

Marc Misthal: and fixed in a tangible medium means something more than in your head.

 

39

00:06:04.350 --> 00:06:07.339

Marc Misthal: It's got to be written down or saved.

 

40

00:06:07.772 --> 00:06:10.659

Marc Misthal: You know. It can't just be something that you're thinking of.

 

41

00:06:10.730 --> 00:06:13.089

Marc Misthal: So we're we're really talking about

 

42

00:06:13.370 --> 00:06:15.669

Marc Misthal: things that have been

 

43

00:06:15.870 --> 00:06:16.970

Marc Misthal: produce

 

44

00:06:17.460 --> 00:06:19.090

Marc Misthal: that are created

 

45

00:06:20.405 --> 00:06:21.220

Marc Misthal: Michelle.

 

46

00:06:21.650 --> 00:06:27.660

Marc Misthal: Before we get to the next slide. There's one other thing that I think is helpful to discuss.

 

47

00:06:27.820 --> 00:06:36.199

Marc Misthal: We talked about what copyright protects, but we should also talk about what rights it gives to the owner.

 

48

00:06:36.560 --> 00:06:41.459

Marc Misthal: So the owner of the copyright has the right to reproduce the work.

 

49

00:06:41.500 --> 00:06:53.240

Marc Misthal: the right to create what's called derivatives, which we'll talk about in a minute to sell copies, hence copyright to perform the work publicly, to display the work. This is all set out in Section 106

 

50

00:06:54.860 --> 00:06:56.519

Marc Misthal: of the copyright act.

 

51

00:06:58.218 --> 00:07:01.490

Marc Misthal: Let's Michelle. Let's go to the next slide.

 

52

00:07:07.520 --> 00:07:08.424

Marc Misthal: we

 

53

00:07:09.910 --> 00:07:15.439

Marc Misthal: have on the screen here 2 examples of works that are protected by copyright, a book as mentioned.

 

54

00:07:15.690 --> 00:07:16.689

Marc Misthal: and a movie

 

55

00:07:17.218 --> 00:07:21.699

Marc Misthal: which is considered a derivative work, because in this case it's based on the book.

 

56

00:07:23.770 --> 00:07:27.740

Marc Misthal: there are other types of works that are protected by copyright.

 

57

00:07:27.950 --> 00:07:33.729

Marc Misthal: This can include musical works, plays, choreographic works, sound recordings.

 

58

00:07:33.860 --> 00:07:37.789

Marc Misthal: pictorial, graphic, and sculptural works which includes photographs

 

59

00:07:38.565 --> 00:07:41.600

Marc Misthal: it also includes architectural work switch.

 

60

00:07:41.890 --> 00:07:53.020

Marc Misthal: There's an amendment on the table that may even extend that architectural work protection to certain features of golf courses. We'll have to see if that passes.

 

61

00:07:56.640 --> 00:08:00.670

Marc Misthal: So let's Michelle go to the next slide, please. Thank you.

 

62

00:08:02.510 --> 00:08:12.729

Marc Misthal: we're gonna talk today a lot about the termination right that authors have. And in order to understand that right and why

 

63

00:08:13.120 --> 00:08:20.320

Marc Misthal: it exists and how it operates, we need to go back a little bit and understand why it was put into place, and how it came to be

 

64

00:08:20.460 --> 00:08:26.370

Marc Misthal: so. That takes us back to the Prior Copyright Act, which was the 1909 act

 

65

00:08:27.270 --> 00:08:28.180

Marc Misthal: and

 

66

00:08:28.510 --> 00:08:31.419

Marc Misthal: the 1909 app is very formalistic.

 

67

00:08:32.061 --> 00:08:44.699

Marc Misthal: In order to get protection you had to register the work you had to renew the work at a certain point in time which we'll talk about, you had to use copyright notices. There were.

 

68

00:08:44.790 --> 00:08:49.029

Marc Misthal: It was very easy to lose protection if you didn't do certain things.

 

69

00:08:51.720 --> 00:08:56.039

Marc Misthal: Renewal was needed, because copyright, as it says on the screen.

 

70

00:08:56.170 --> 00:08:57.689

Marc Misthal: had 2 terms.

 

71

00:08:58.080 --> 00:09:08.489

Marc Misthal: an initial 28 year term, and if you renewed a second 28 year term. And, as mentioned, if you didn't file those renewal documents.

 

72

00:09:08.520 --> 00:09:10.520

Marc Misthal: you didn't get the renewal term

 

73

00:09:11.452 --> 00:09:12.780

Marc Misthal: and they were

 

74

00:09:12.840 --> 00:09:14.459

Marc Misthal: pretty strict about that.

 

75

00:09:15.920 --> 00:09:17.850

Marc Misthal: So the question becomes.

 

76

00:09:18.090 --> 00:09:22.310

Marc Misthal: why were there 2 terms? Why was this renewal? Provision

 

77

00:09:22.560 --> 00:09:24.170

Marc Misthal: puts them into plates.

 

78

00:09:25.500 --> 00:09:26.380

Marc Misthal: and

 

79

00:09:26.950 --> 00:09:31.809

Marc Misthal: the answer is, Congress wanted a second term.

 

80

00:09:32.030 --> 00:09:35.270

Marc Misthal: because they were concerned about

 

81

00:09:36.010 --> 00:09:40.550

Marc Misthal: authors being taken advantage of. Authors is kind of a shorthand for

 

82

00:09:41.348 --> 00:09:46.300

Marc Misthal: Creator in in the copyright Portland. But

 

83

00:09:47.290 --> 00:09:58.440

Marc Misthal: Congress didn't want authors being taken advantage of, so the second term, at least in part, was intended to allow creators to renegotiate deals

 

84

00:09:58.850 --> 00:10:12.600

Marc Misthal: if their work has somehow become very successful is some, you know, you create a work. You don't know how successful it's gonna be. This was an opportunity for them to renegotiate for their families to renegotiate

 

85

00:10:12.940 --> 00:10:15.370

Marc Misthal: and get a bigger slice of the pie.

 

86

00:10:15.590 --> 00:10:16.790

Marc Misthal: so to speak.

 

87

00:10:18.342 --> 00:10:24.000

Marc Misthal: So let's talk about an example of how that works. And Michelle, if you wouldn't mind the

 

88

00:10:24.970 --> 00:10:37.399

Marc Misthal: next slide. Thank you. Fans of the movie rear window may have heard this story before, but it's it's an interesting one, and it went all the way up to the Supreme Court.

 

89

00:10:37.870 --> 00:10:39.400

Marc Misthal: and the story

 

90

00:10:39.640 --> 00:10:41.830

Marc Misthal: goes like this.

 

91

00:10:41.940 --> 00:10:46.389

Marc Misthal: Parnell Woolridge wrote a short story called it had to be murder.

 

92

00:10:46.750 --> 00:10:49.470

Marc Misthal: He published it in 1942.

 

93

00:10:49.750 --> 00:10:52.919

Marc Misthal: In 1945. He sold the movie rights

 

94

00:10:53.400 --> 00:10:55.699

Marc Misthal: in that contract.

 

95

00:10:56.320 --> 00:11:01.350

Marc Misthal: He agreed to renew the copyright after the initial 28 term.

 

96

00:11:03.050 --> 00:11:05.570

Marc Misthal: This is that's the very important point.

 

97

00:11:06.080 --> 00:11:12.679

Marc Misthal: In 1953 Jimmy Stewart and Alfred Hitchcock bought the rights. They eventually made the movie rear rear window.

 

98

00:11:13.173 --> 00:11:17.559

Marc Misthal: which I highly recommend if you haven't seen it. But that's a separate topic.

 

99

00:11:19.840 --> 00:11:25.239

Marc Misthal: Woolrich died in 1968 before the first term of his copyright expired.

 

100

00:11:26.570 --> 00:11:32.720

Marc Misthal: So what happened then was control of the rights, went to the executor of his estate, chase Manhattan.

 

101

00:11:33.670 --> 00:11:38.890

Marc Misthal: They then sold the movie rights to a literary agent named Sheldon Aben.

 

102

00:11:40.970 --> 00:11:44.929

Marc Misthal: So he owned the rights, particularly in that renewal term.

 

103

00:11:45.860 --> 00:11:53.530

Marc Misthal: 1971 and 1974 ABC aired rear window on TV, pursuant to a license

 

104

00:11:53.900 --> 00:11:59.070

Marc Misthal: that they got from the movie company. Michelle, can we go to the next slide, please?

 

105

00:12:01.280 --> 00:12:02.530

Marc Misthal: Abandoned.

 

106

00:12:03.560 --> 00:12:13.560

Marc Misthal: sued for infringement because he was not willing to honor that agreement that Woolridge made, and renew the copyright and assign it

 

107

00:12:13.820 --> 00:12:15.449

Marc Misthal: to Jimmy Stewart.

 

108

00:12:16.580 --> 00:12:18.500

Marc Misthal: and the case went up

 

109

00:12:18.830 --> 00:12:20.420

Marc Misthal: to the Supreme Court

 

110

00:12:20.510 --> 00:12:21.830

Marc Misthal: for resolution.

 

111

00:12:22.020 --> 00:12:22.890

Marc Misthal: and

 

112

00:12:23.080 --> 00:12:27.909

Marc Misthal: what the Court said ultimately was.

 

113

00:12:28.310 --> 00:12:31.440

Marc Misthal: If the author dies before the renewal term.

 

114

00:12:32.160 --> 00:12:39.759

Marc Misthal: an agreement to renew and assign that renewal term does not have to be honored because it's merely an expectancy.

 

115

00:12:40.400 --> 00:12:44.229

Marc Misthal: If the author survives to the renewal term.

 

116

00:12:44.830 --> 00:12:51.930

Marc Misthal: then the agreement requires that he must renew because there's it's an actuality, not an expectancy.

 

117

00:12:53.800 --> 00:12:56.199

Marc Misthal: Now, this shows how things work

 

118

00:12:56.690 --> 00:13:02.290

Marc Misthal: worked under the 1909 Act, even though it was decided in 1990 the cases of

 

119

00:13:02.300 --> 00:13:05.869

Marc Misthal: relatively limited value because the act has changed.

 

120

00:13:06.310 --> 00:13:10.439

Marc Misthal: And let's go to that. Michelle. If we can move ahead.

 

121

00:13:13.020 --> 00:13:17.620

Marc Misthal: The new Copyright Act took effect in 1978.

 

122

00:13:18.650 --> 00:13:27.010

Marc Misthal: It had some significant provisions. It kind of kept the renewal scheme. It increased the length of the renewal term.

 

123

00:13:27.230 --> 00:13:29.260

Marc Misthal: but there was one big change

 

124

00:13:29.550 --> 00:13:31.870

Marc Misthal: for works created after the

 

125

00:13:31.910 --> 00:13:33.439

Marc Misthal: act took effect.

 

126

00:13:33.450 --> 00:13:35.250

Marc Misthal: There was no more renewal.

 

127

00:13:36.140 --> 00:13:41.579

Marc Misthal: Copyright would last life of the author plus 50 years, and that was eventually changed

 

128

00:13:42.272 --> 00:13:46.810

Marc Misthal: later on as well. The duration. But there was no renewal

 

129

00:13:48.100 --> 00:13:49.240

Marc Misthal: show

 

130

00:13:50.750 --> 00:13:52.749

Marc Misthal: that was significant

 

131

00:13:53.020 --> 00:14:02.820

Marc Misthal: before we get to how that impacted. The author's right to renegotiate Michelle. Let's go to the next slide and talk about who owns

 

132

00:14:03.060 --> 00:14:04.870

Marc Misthal: copyright and work

 

133

00:14:05.420 --> 00:14:07.539

Marc Misthal: generally. It's the author.

 

134

00:14:08.070 --> 00:14:12.890

Marc Misthal: the main. The big exception is in what's called work made for hire.

 

135

00:14:13.070 --> 00:14:23.389

Marc Misthal: This term gets bandied about a lot. What it means in the copyright context is a work prepared by an employee within the scope of his or her employment.

 

136

00:14:23.930 --> 00:14:30.299

Marc Misthal: So during your job, if you write something that's owned by your employer, that's a work for hire.

 

137

00:14:31.326 --> 00:14:42.760

Marc Misthal: We're gonna come back to that. There's some additional exceptions that constitute works for hire. We're gonna come back to this. But this is important. When we get to the termination provisions.

 

138

00:14:47.040 --> 00:14:49.200

Marc Misthal: which is the next thing we're going to talk about.

 

139

00:14:49.280 --> 00:14:51.929

Marc Misthal: So Michelle, next slide.

 

140

00:14:54.160 --> 00:14:57.720

Marc Misthal: The termination provisions, unfortunately, are not easy.

 

141

00:14:58.770 --> 00:15:01.360

Marc Misthal: There are 2 provisions in the act

 

142

00:15:01.430 --> 00:15:04.109

Marc Misthal: dealing with this. They're basically the same.

 

143

00:15:04.753 --> 00:15:07.509

Marc Misthal: The reason there are 2 provisions is

 

144

00:15:08.110 --> 00:15:13.029

Marc Misthal: because one section 2 or 3 deals with grants that were made

 

145

00:15:13.200 --> 00:15:17.680

Marc Misthal: before the 1976 act took effect, and the other one.

 

146

00:15:19.220 --> 00:15:20.879

Marc Misthal: I'm sorry I've got it backwards.

 

147

00:15:21.180 --> 00:15:28.870

Marc Misthal: 2 or 3 deals with grants that took effect after the 76 act went into effect, and 3 4 deals with

 

148

00:15:28.920 --> 00:15:31.710

Marc Misthal: grants that were made before the act

 

149

00:15:32.140 --> 00:15:33.340

Marc Misthal: took effect.

 

150

00:15:36.450 --> 00:15:42.739

Marc Misthal: it's important to note that the termination right does not apply in all instances.

 

151

00:15:43.590 --> 00:15:47.009

Marc Misthal: Specifically, it does not apply to works made for hire.

 

152

00:15:48.140 --> 00:16:00.739

Marc Misthal: or to grants made by will or to grants made by somebody other than the author. We're going to talk about these things more, but this is why the question of ownership becomes important, because termination does not apply

 

153

00:16:00.890 --> 00:16:04.980

Marc Misthal: in every case, and it depends in part on who the owner is.

 

154

00:16:14.560 --> 00:16:17.049

Marc Misthal: Let's go to the next slide.

 

155

00:16:19.360 --> 00:16:21.749

Marc Misthal: there are some other exceptions.

 

156

00:16:22.490 --> 00:16:27.010

Marc Misthal: It doesn't apply to derivative work. So if the

 

157

00:16:27.170 --> 00:16:30.110

Marc Misthal: author said that somebody could make a movie.

 

158

00:16:30.710 --> 00:16:39.700

Marc Misthal: it doesn't terminate the right to exploit the movie. It may terminate the right to make future movies, but that movie can still be

 

159

00:16:41.090 --> 00:16:43.700

Marc Misthal: displayed and just and shown.

 

160

00:16:45.042 --> 00:16:52.299

Marc Misthal: The other thing that's important. And in today's world this is a big deal. This only applies to us rights.

 

161

00:16:53.190 --> 00:16:57.470

Marc Misthal: So an author may have rights elsewhere in the world.

 

162

00:16:57.760 --> 00:17:01.260

Marc Misthal: Termination only applies to the Us. Rights.

 

163

00:17:02.820 --> 00:17:05.299

Marc Misthal: And again we come back to the question of

 

164

00:17:05.339 --> 00:17:09.299

Marc Misthal: Why do we have this at all? Well, this is how Congress

 

165

00:17:09.520 --> 00:17:14.570

Marc Misthal: decided to address the lack of a renewal, the renewal term allowed

 

166

00:17:14.720 --> 00:17:16.540

Marc Misthal: for renegotiation.

 

167

00:17:17.319 --> 00:17:18.329

Marc Misthal: This

 

168

00:17:18.670 --> 00:17:23.009

Marc Misthal: termination scheme is the substitute for that

 

169

00:17:23.620 --> 00:17:26.740

Marc Misthal: and Michelle. Let's go to the next slide.

 

170

00:17:28.240 --> 00:17:30.729

Marc Misthal: So termination goes

 

171

00:17:30.770 --> 00:17:35.350

Marc Misthal: to the author. If they're deceased, it goes to their survivors.

 

172

00:17:36.145 --> 00:17:39.180

Marc Misthal: And then you've got the question if the author is deceased

 

173

00:17:39.240 --> 00:17:41.070

Marc Misthal: who can exercise the right.

 

174

00:17:41.310 --> 00:17:46.910

Marc Misthal: it's any combination of survivors who own more than one half of the interest.

 

175

00:17:47.650 --> 00:17:52.070

Marc Misthal: Michelle, let's go to the next slide, which I think is yours.

 

176

00:17:52.070 --> 00:18:07.970

Michelle Yeung: Yeah, so I wanna start off by discussing what is testamentary freedom? Well, everybody has testamentary freedom. And it, this is what you have to distribute or dispose of your property. At the time of your staff

 

177

00:18:08.020 --> 00:18:20.850

Michelle Yeung: you have specific rights of who you want to receive the property, you can say who receive it, your spouse, your children, your best friend, you have the ability to say, or a a point when they will receive

 

178

00:18:20.850 --> 00:18:41.170

Michelle Yeung: that property or asset when they reach a certain age, like 2535, when they graduate from college or when they get married, you can set the terms for when anyone receives your property, you can even set the terms of how they enjoy that property, such as you know, they can only use your home for residential purpose.

 

179

00:18:41.170 --> 00:18:48.639

Michelle Yeung: or they can only use the money to support their education and health. No laver vacations for them. So

 

180

00:18:49.180 --> 00:19:02.940

Michelle Yeung: everyone has that freedom with regards to their property, and if you don't exercise this testamentary freedom, your domiciliary state, the state that you reside in has a statutory plan in place for you in New York.

 

181

00:19:02.940 --> 00:19:28.639

Michelle Yeung: This plan is in the near estates, Power and Trust law. Section 4 has 1.4, and it lays out the order of individuals who would receive your assets? They obviously favor family, your spouse and children come first, then next would be parents and siblings, grandchildren, nieces, and nephews. But that's the plan that every State will have for their residents.

 

182

00:19:28.940 --> 00:19:50.220

Michelle Yeung: The great thing about testamentary freedom is you have the option to opt out of your statutory plan in your state. So if you don't like the plan in your state, like, if you say I, me and my spouse. We, you know, we don't want to. Just distribute access to each other. We we prefer to give our access to charities. You can do that.

 

183

00:19:50.280 --> 00:19:57.680

Michelle Yeung: How do you do that? You create a will, you create a trust? You can lay out a plan that's different from your state statute.

 

184

00:19:58.590 --> 00:20:11.460

Michelle Yeung: Now contrast that to statutory errors. So what Mark has been talking about is termination rates right? You know it allows the family this and and the author, second bite of the apple.

 

185

00:20:11.670 --> 00:20:14.930

Michelle Yeung: But the problem here is now. It also created

 

186

00:20:15.130 --> 00:20:28.390

Michelle Yeung: a bunch of statutory errors. What I mean by this is that the termination rights that are granted to the individuals, the spouse, the children and grandchildren of the author are inalienable and unwaivable.

 

187

00:20:28.782 --> 00:20:51.910

Michelle Yeung: And in in the purpose of this is to protect obviously the family. If the author has granted their rights to a large music in company or publishing house, you. Don't you want to allow the author and the family members to terminate that grant in the future? However, however, what happens when the author

 

188

00:20:52.140 --> 00:21:15.810

Michelle Yeung: granted his property, or transfer his copyrighted property to a his best friend, or to a charity somebody who is not part of the the people who would have this termination rates. Now we've created this unintended consequence where we've given these people the ability to terminate the authors. Original intent.

 

189

00:21:16.212 --> 00:21:26.819

Michelle Yeung: Such as giving their copyrighted work to charity. And a case I wanna use to illustrate this point is the Ray Charles Foundation versus Robinson.

 

190

00:21:28.061 --> 00:21:49.330

Michelle Yeung: So ray. Charles is a famous singer songwriter, pianist. He was blind, but he learned to play the piano. Ray found the Ray Charles Foundation to provide support for those with hearing disorder, and he named the foundation as the sole heir of all of his royalties during his life, and thereafter

 

191

00:21:50.540 --> 00:22:08.159

Michelle Yeung: and Ray, I did know this, but Ray had 12 children from 10 different women, and at the time his passing he was not married. He had a plan. He gave all of his children, all 12 of them, each $500,000 in exchange that they would waive their right to his estate.

 

192

00:22:08.190 --> 00:22:15.719

Michelle Yeung: Ray died before termination window open, meaning he didn't exercise his termination right? So what does that mean?

 

193

00:22:15.780 --> 00:22:36.399

Michelle Yeung: They passed on to his children, and after his death 7 of the 12 children serve termination notices on the foundation and keep in mind termination rates are unwaivable. Ray Charles was not able, or he couldn't have contracted with children or made promises children to ask them to not exercise this right.

 

194

00:22:36.400 --> 00:22:48.746

Michelle Yeung: And I also wanna point out, as you can see, 7 of the 12 children serve termination notices. That means that the children had to buy buying together and have a majority in order to terminate

 

195

00:22:49.618 --> 00:23:08.859

Michelle Yeung: the the grant of the royalties to the copyright, it works to the foundation. Interesting enough, this case was not started by the children, actually the foundation vows to challenge the determinations, because the foundation sole source of income was from the royalties.

 

196

00:23:09.179 --> 00:23:31.240

Michelle Yeung: The court did grant them standing to bring the suit, but nothing no further suit was followed. We don't know what is the outcome of this case. It would have been very interesting. All we can speculate is that there must have been some agreement made upon the foundation and the children so that the foundation can remain because it is still in existence today.

 

197

00:23:33.380 --> 00:23:35.171

Michelle Yeung: Go ahead, Mike! Hi, mark!

 

198

00:23:35.930 --> 00:23:36.660

Marc Misthal: Boy?

 

199

00:23:37.540 --> 00:23:42.290

Marc Misthal: so this kind of brings up the question of Well, how does all of this work?

 

200

00:23:43.080 --> 00:23:47.100

Marc Misthal: And like we said before, this is, it's complicated.

 

201

00:23:48.730 --> 00:23:51.410

Marc Misthal: so what we've got on the screen is

 

202

00:23:51.640 --> 00:23:57.419

Marc Misthal: the language from the statute. And for purposes of our discussion here, we're focusing on Section 2 3

 

203

00:23:57.490 --> 00:24:06.649

Marc Misthal: 2, or 3, and 3 or 4. Both act pretty much the same. But everything we're gonna talk about today is to is under 2 or 3, but

 

204

00:24:06.870 --> 00:24:09.099

Marc Misthal: you can terminate a grant

 

205

00:24:09.610 --> 00:24:16.609

Marc Misthal: at any time during a period of 5 years, beginning at the end of 35 years from the date of execution of the grant.

 

206

00:24:17.643 --> 00:24:23.540

Marc Misthal: To me. That's a mouthful. So I think the example down below is hopeful.

 

207

00:24:23.740 --> 00:24:25.240

Marc Misthal: If the grant

 

208

00:24:25.400 --> 00:24:27.250

Marc Misthal: from the author to

 

209

00:24:27.310 --> 00:24:33.459

Marc Misthal: whoever, let's say the way Charles Foundation was made on January 1, 85,

 

210

00:24:33.590 --> 00:24:38.609

Marc Misthal: the date of the grant plus 35 years is January 1, 2020.

 

211

00:24:39.050 --> 00:24:46.689

Marc Misthal: So you have a termination window of between January 1, 2020, and January 1, 2025.

 

212

00:24:47.170 --> 00:24:51.790

Marc Misthal: The term, the termination date can be any date between

 

213

00:24:52.890 --> 00:24:54.800

Marc Misthal: those 2 in that range.

 

214

00:24:56.480 --> 00:24:59.159

Marc Misthal: Let's go, Michelle, to the next slide.

 

215

00:25:00.254 --> 00:25:06.600

Marc Misthal: There are some other considerations that make this more complicated. We're gonna stick with keeping things simple this morning.

 

216

00:25:07.132 --> 00:25:09.020

Marc Misthal: So let's move on.

 

217

00:25:09.984 --> 00:25:13.010

Marc Misthal: Because now that we've got the

 

218

00:25:14.400 --> 00:25:18.259

Marc Misthal: we know when it can be terminated, the question becomes.

 

219

00:25:18.540 --> 00:25:20.210

Marc Misthal: Well, how do you do this?

 

220

00:25:21.320 --> 00:25:27.760

Marc Misthal: And the way this is done is a termination. Notice has to be served

 

221

00:25:28.230 --> 00:25:33.769

Marc Misthal: on whoever received the grant, and who, and potentially their successors and interest.

 

222

00:25:34.010 --> 00:25:37.239

Marc Misthal: And there's a timeframe in which that has to be done.

 

223

00:25:37.740 --> 00:25:38.830

Marc Misthal: and that's

 

224

00:25:39.680 --> 00:25:43.319

Marc Misthal: up to 10 years before the selected termination date.

 

225

00:25:43.360 --> 00:25:47.199

Marc Misthal: and no later than 2 years before the selected termination date.

 

226

00:25:47.730 --> 00:25:58.829

Marc Misthal: So again, we've got an example to walk through this, and this carries on from the the prior example. But if we say we're gonna choose a termination date of January 1, 2024,

 

227

00:25:58.880 --> 00:26:02.110

Marc Misthal: the window for serving that termination, notice

 

228

00:26:02.280 --> 00:26:06.160

Marc Misthal: is between January 1, 2014

 

229

00:26:06.330 --> 00:26:09.299

Marc Misthal: and January 1, 2022

 

230

00:26:10.305 --> 00:26:14.880

Marc Misthal: and you can see the the calculations there. But you've got to make sure that

 

231

00:26:15.460 --> 00:26:17.330

Marc Misthal: you get those dates right.

 

232

00:26:18.366 --> 00:26:21.280

Marc Misthal: Let's Michelle move on to the next

 

233

00:26:21.840 --> 00:26:26.620

Marc Misthal: screen again. We're keeping things simple. There are other considerations.

 

234

00:26:26.860 --> 00:26:32.580

Marc Misthal: If things that we're talking about works that are joint works and some other works.

 

235

00:26:32.790 --> 00:26:37.510

Marc Misthal: We're gonna keep things on the easier side this morning. Still a little early

 

236

00:26:38.181 --> 00:26:41.090

Marc Misthal: Michelle. Let's move on.

 

237

00:26:42.210 --> 00:26:47.429

Marc Misthal: So here we have an example of what the termination notice looks like.

 

238

00:26:47.540 --> 00:26:53.030

Marc Misthal: And you know, frankly, it's not really anything special. It's basically a letter

 

239

00:26:53.561 --> 00:26:59.349

Marc Misthal: this is actually from a case that Michelle's gonna speak about in a little bit.

 

240

00:27:00.111 --> 00:27:06.659

Marc Misthal: But you can see that it's letter that says certain things. And if we go. Michelle, please. The next slide.

 

241

00:27:07.893 --> 00:27:15.300

Marc Misthal: There's a whole list of information that needs to be included in the termination. Notice.

 

242

00:27:15.610 --> 00:27:21.529

Marc Misthal: It's all set out in copyright office regulations, and it's listed

 

243

00:27:21.790 --> 00:27:22.780

Marc Misthal: here.

 

244

00:27:23.562 --> 00:27:26.029

Marc Misthal: Let's go, Michelle, to the next slide.

 

245

00:27:28.600 --> 00:27:30.640

Marc Misthal: some additional requirements.

 

246

00:27:30.830 --> 00:27:33.919

Marc Misthal: The key thing here is

 

247

00:27:34.800 --> 00:27:36.360

Marc Misthal: twofold. First.

 

248

00:27:36.890 --> 00:27:41.740

Marc Misthal: the termination notice has to be recorded in the copyright office

 

249

00:27:41.770 --> 00:27:43.630

Marc Misthal: before the effective date.

 

250

00:27:44.560 --> 00:27:46.220

Marc Misthal: If you don't do that

 

251

00:27:48.990 --> 00:27:50.629

Marc Misthal: if you don't do that.

 

252

00:27:50.750 --> 00:27:55.359

Marc Misthal: it's gonna impact. The effectiveness of termination.

 

253

00:27:55.690 --> 00:27:57.719

Marc Misthal: And if you don't comply.

 

254

00:27:58.950 --> 00:28:01.530

Marc Misthal: the termination notice can be invalid.

 

255

00:28:01.720 --> 00:28:06.010

Marc Misthal: So if you serve a notice, and it doesn't list one of the 7

 

256

00:28:06.380 --> 00:28:10.029

Marc Misthal: things that we've had up on the screen here. One thing is left out

 

257

00:28:10.320 --> 00:28:18.050

Marc Misthal: that can invalidate the notice. It's really important to make sure that the notice says everything that it's supposed to say.

 

258

00:28:19.080 --> 00:28:24.119

Marc Misthal: and that it's recorded with the copyright office, because.

 

259

00:28:24.570 --> 00:28:25.660

Marc Misthal: if not

 

260

00:28:26.070 --> 00:28:26.930

Marc Misthal: be.

 

261

00:28:27.170 --> 00:28:28.409

Marc Misthal: you'd spot

 

262

00:28:28.820 --> 00:28:31.710

Marc Misthal: many of these cases, find their way to litigation.

 

263

00:28:32.020 --> 00:28:38.059

Marc Misthal: One of the things that's gonna wind up being litigated is whether the notice is is effective or not.

 

264

00:28:38.450 --> 00:28:46.660

Marc Misthal: And you you just you don't want to have that issue. So it's really important to make sure that these things are all included in the notice.

 

265

00:28:47.310 --> 00:28:50.439

Marc Misthal: And I think, Michelle, I'm going to turn it back over

 

266

00:28:51.100 --> 00:28:52.290

Marc Misthal: to you.

 

267

00:28:52.710 --> 00:29:22.620

Jonathan Shenkman: I'm just gonna interject real quick here, for with the code seem like a good entry point. For those who are. Gonna take this, are taking this course for credit accounts. Attorneys in Connecticut, New Jersey, New York. Please get ready for the code, which is E. 2, 2, 2 again, E as an Eric, the number 2, and again the number 2, one final time, e. 2, 2. Please stick around to the conclusion of the program for final instructions, and how to receive your certificate back to you. Michelle

 

268

00:29:23.140 --> 00:29:23.750

Jonathan Shenkman: Michelle.

 

269

00:29:23.750 --> 00:29:24.590

Michelle Yeung: Captain.

 

270

00:29:24.590 --> 00:29:32.419

Marc Misthal: What before I before I turn it over to you. I'm gonna just add one thing it Michelle's hinted at this, and she's gonna talk more about it.

 

271

00:29:33.540 --> 00:29:41.650

Marc Misthal: These termination notices give rise to all sorts of disputes, including interf family disputes. The Steinbeck family had a

 

272

00:29:41.680 --> 00:29:44.120

Marc Misthal: long litigation over stuff like this.

 

273

00:29:44.370 --> 00:29:51.260

Marc Misthal: You may have heard that comic book artists have had similar attempts to try and to terminate things.

 

274

00:29:51.380 --> 00:29:58.189

Marc Misthal: There's a lot of litigation over this, even if things are done right. And Michelle, yeah, I know you're going to talk about some of that.

 

275

00:29:58.583 --> 00:30:09.210

Michelle Yeung: Thank you. Mark. Okay, so talk about termination notices and rights. So. But you know what are the exceptions? One of the exception is work

 

276

00:30:09.230 --> 00:30:20.960

Michelle Yeung: works ha made for hire and that means any work that was created by an employee within the course of his or her employment. This is us, you know, the more usual case.

 

277

00:30:21.120 --> 00:30:43.020

Michelle Yeung: And another type of work way for hire is any work that falls into one of these 9 categories, and as you can see going down the list. There are more works that are made in large groups or works that are such as translation or text are are creating instructional, instructional text or tests.

 

278

00:30:43.020 --> 00:31:09.327

Michelle Yeung: They're they're really not works that are creative. In instance, it's it's where and someone would hire a person to create this manual for the product that the the employer has. Now, I wanna point out that if you look at this list, you don't notice musical or sound recordings, and there's actually a reason why it's not there. So

 

279

00:31:10.248 --> 00:31:31.661

Michelle Yeung: In 1999, Congress passed legit litigation legislation, intending to add sound and music recording to the list of collective works. This Ca, you know they came down under fire for for doing this, because this change, adding music or sound recordings to this

 

280

00:31:32.200 --> 00:31:47.038

Michelle Yeung: specific list basically took all the rights from a music artist and permanently gave them to the music industry or the reporting companies, because now anything that our artists would record while they're with a a music

 

281

00:31:47.745 --> 00:32:10.080

Michelle Yeung: company would not belong to them, and they would have no termination rights. So they shortly took that off. It was removed from the list. That's why music and sound recordings are not part of this particular list of items that are considered works made for hire. And I wanted to use a case to highlight. What is work made for hire? And then case on point is game of life.

 

282

00:32:10.513 --> 00:32:38.779

Michelle Yeung: I'm sure everybody have heard of this game replayed this game at some point in their life. So reuben Claimer was a toy developer, and he came up with the idea to update a board game. It was called checker game of life. He was a toy developer. He didn't really have the background to design the prototype for the game to to to market it to the toy companies.

 

283

00:32:38.780 --> 00:32:43.490

Michelle Yeung: So he hired a a well known game designer.

 

284

00:32:43.490 --> 00:33:12.170

Michelle Yeung: Bill Markham, to help him develop the prototype for the game of life and claimer with Markham, and also 2 additional claimers employees from his company, worked and built the prototype for game of life. And if you know this game, you know that it has a spinner, and it's not a flat game. It has. You know pieces that kind of go up and down, you know, cars with the people. It's a well designed game, and that was because of this team

 

285

00:33:12.546 --> 00:33:28.000

Michelle Yeung: when the game was done and they had a good prototype claimer. Enlisted TV personality. Arc letter to pitch the game to Mattel, and they were able to enter into a license in 1959 to produce the game.

 

286

00:33:29.160 --> 00:33:35.339

Michelle Yeung: Markham assigned his rights to the game and in exchange for 30% of the royalties.

 

287

00:33:35.340 --> 00:33:59.440

Michelle Yeung: and Markham was also reimbursed for the cost that he paid into creating the prototype. Now, Markham felt at the end, because we know this game is still lynx. We still in production. And he felt that he got the short end of the stick. He didn't felt he was given enough royalties for his work. So in 2019

 

288

00:33:59.440 --> 00:34:01.630

Michelle Yeung: his heirs sued

 

289

00:34:03.116 --> 00:34:32.399

Michelle Yeung: claimers, errors, and our letter link letter and has worked to terminate the 1959 assignment. Well, the court held that his work was considered work may for hire, and I wanna go back. The in in. Why the court held this? Because if you look at the year that the assignment was made, it was made in 1959. And this was before the 1976 act that Mark pointed out, and in 1959 work for hire had a different definition had a different test.

 

290

00:34:32.400 --> 00:34:33.520

Michelle Yeung: The court

 

291

00:34:33.520 --> 00:34:48.340

Michelle Yeung: apply the instance and expense test. So instance means whether or not the there was direct supervision. Of the creators work. Did the creative have full control over the creative aspect

 

292

00:34:48.340 --> 00:35:09.650

Michelle Yeung: of the work? And in this instance mark him worked with a team, and it wasn't his idea. He kind of was brought on to kind of make the idea better work on a prototype. He also worked with claimers to other employees. So you know, there definitely was some supervision by claimer and also the expense test.

 

293

00:35:10.015 --> 00:35:31.569

Michelle Yeung: How was Markham paid? Well, Markham pay for the prototype, but he was reimbursed. The reimbursement was regardless of whether the game became a success or not. So, because of these 2 instances the court stated that this was more made for hire, and Markham was not permitted to terminate his grant for this copyrighted work.

 

294

00:35:32.593 --> 00:35:54.050

Michelle Yeung: Now contrast that with a different case, something a little bit more recent horror. Inc. Versus Miller, in this case Victor Miller wrote the screenplay for the original Friday, the thirteenth film at time. Miller was a member of the brighter scale of America. And I once point out that in his contract

 

295

00:35:54.050 --> 00:36:21.340

Michelle Yeung: expressly did not provide that screenplays would be work made for hire. So he did assign grant his rights to this screenplay in 1979. So, again important to pay attention to the year 1979 was Post 1976. So the new at that time the new app was in in force, and Miller served as termination rights notice in 2,016.

 

296

00:36:22.106 --> 00:36:42.269

Michelle Yeung: So the court in this instance did not use the same test that they applied in the game of life case. Instead, they looked at the contract. They really looked at whether or not this what was the agreement between Miller and and and the employer and

 

297

00:36:42.360 --> 00:36:57.409

Michelle Yeung: pointing out that screen screenplays were not considered work made for hire. Miller reserved as he still had the termination right, and he was able to terminate his grant, and he was able to regain the copyrighted work of the screenplay.

 

298

00:36:58.280 --> 00:37:00.380

Michelle Yeung: For for this film.

 

299

00:37:02.410 --> 00:37:08.200

Marc Misthal: Michelle, Michelle, before we go on. Can you talk about a little bit more about the factors that the court

 

300

00:37:08.370 --> 00:37:13.219

Marc Misthal: looked at in terms of how they determined, if it was a work made prior.

 

301

00:37:14.234 --> 00:37:37.935

Michelle Yeung: So I think it focused on the on the contract that was between the from Miller and the writers. Gill looking at at the time. What? What was his course of employment? What was he hired for? And and that was because the contract specifically said, screenplays were not made for work made for hire. Then.

 

302

00:37:39.153 --> 00:37:43.850

Michelle Yeung: you know it. It. That particular work felt outside of his scope of deploying it.

 

303

00:37:44.040 --> 00:37:50.892

Marc Misthal: If if if I if I remember right, I think you're you're right. But I think they also looked at some other things

 

304

00:37:51.470 --> 00:37:57.399

Marc Misthal: which were not covered by the contract. The contract didn't talk about how payment was gonna be made

 

305

00:37:57.910 --> 00:37:58.779

Marc Misthal: and

 

306

00:38:00.400 --> 00:38:03.120

Marc Misthal: taxes weren't taken out. There was no holding

 

307

00:38:03.150 --> 00:38:05.010

Marc Misthal: there were no benefits.

 

308

00:38:05.805 --> 00:38:09.269

Marc Misthal: Miller wrote kind of on his own.

 

309

00:38:09.450 --> 00:38:20.989

Marc Misthal: There were some allegations, if I remember, that other people contributed some ideas, but they were never able to detail except for a change at the ending. They weren't really able to detail

 

310

00:38:21.250 --> 00:38:24.479

Marc Misthal: who contributed what?

 

311

00:38:25.270 --> 00:38:30.079

Marc Misthal: So there were a lot of a lot of factors. There's a Supreme Court test that

 

312

00:38:30.520 --> 00:38:35.680

Marc Misthal: lays out the the current set of factors for determining if something's work for hire or not

 

313

00:38:36.542 --> 00:38:38.910

Marc Misthal: the contract was certainly

 

314

00:38:39.528 --> 00:38:44.460

Marc Misthal: something that was considered but definitely. There were some other things that I think the

 

315

00:38:44.560 --> 00:38:48.070

Marc Misthal: court looked at, and it's important to keep those in mind

 

316

00:38:49.320 --> 00:38:52.320

Marc Misthal: determining if something is a work for hire is not easy.

 

317

00:38:53.132 --> 00:39:03.549

Michelle Yeung: Thank you, Mark, for for for including that. Yes, it definitely is not easy to to to do the termination.

 

318

00:39:03.690 --> 00:39:05.770

Michelle Yeung: Alright, let's move on.

 

319

00:39:06.417 --> 00:39:29.830

Michelle Yeung: Okay. So now that we know that work may, for hire does not include termination rights, how can we use that to help our clients who are looking to plan or grant their copyrighted works to in people who are not their spouse, children and grandchildren. Right well, if we know work may for hire does not have termination rights

 

320

00:39:29.830 --> 00:39:46.710

Michelle Yeung: to protect or future works. The music, the the the author can establish their own loan out company and then employ themselves. So a Loona company allows the author to create this company. They're the owner of the company, but they employ themselves

 

321

00:39:46.710 --> 00:39:58.750

Michelle Yeung: to be the employee of the company. So all the work that you at the author makes while they're an employee of the Mona Company is considered work made for hire. Well.

 

322

00:39:59.330 --> 00:40:23.819

Michelle Yeung: authors do create these around companies, not just for a State planning purposes. If they do do it for that purpose, there's actually a lot of favorable tax benefits. Such as and also limit liabilities, protection. They also enjoy employee benefits, health insurance benefits and retirement account benefits things that you wouldn't necessarily have if you were a freelancer or independent contractor

 

323

00:40:23.820 --> 00:40:30.399

Michelle Yeung: having that loan company provides those employee benefits for the the author

 

324

00:40:31.631 --> 00:40:45.760

Michelle Yeung: while they're, you know, working on their craft and and making the works that they do. The thing is to point out is that if you already have this author already created copyrighted work.

 

325

00:40:45.780 --> 00:41:01.026

Michelle Yeung: transferring that work to a loan up company does not terminate or does not get rid of the termination rights. So if the author already has a successful book that they have wrote, and they are planning to

 

326

00:41:01.390 --> 00:41:27.069

Michelle Yeung: gift that copyrighted work to their best friend. They cannot create a loan out company and grant the book to the loan out company in hopes that oh, it's in a loan out company. It's no there are no termination right? That's incorrect. The work had to be created while the author was employee of the loan out company not created before, and then subsequently, granted to the loan company.

 

327

00:41:28.513 --> 00:41:52.030

Michelle Yeung: I also wanted to highlight the terms of different terms of the protection. Copyright protection between work may for hire and works that are not made for hire, so work that is made for hire has the copyright protection of 95 years from the date of publication, or 120 years from date of creation. Whichever expires first

 

328

00:41:52.140 --> 00:42:04.671

Michelle Yeung: and then copyrighter works that are not part of work made for hire is the life of the author life of the author, plus 70 years. So, depending on the age of the author.

 

329

00:42:05.391 --> 00:42:27.080

Michelle Yeung: you may actually get a longer protection. Through works that were made through made for hire. Because if the author created the work when they're you know much into their senior years. Even if they haven't published it, they'll get 120 years from the date of creation. So something to be aware of.

 

330

00:42:28.405 --> 00:42:42.070

Michelle Yeung: Alright again, just highlighting how to use a loner company to help plan you must establish the company before you create the copyrighted work. And then through

 

331

00:42:42.440 --> 00:42:51.949

Michelle Yeung: after the copyright of work is created, you can assign and transfer those works to the intended beneficiaries or the charitable foundations that the author has created.

 

332

00:42:52.340 --> 00:43:15.400

Michelle Yeung: You know. Obviously, this is really a plan that will work for authors who are more seasoned and established authors who are young or just started in their craft may not find this beneficial because they may wanna preserve their termination rights for themselves and a case to highlight. That is, Columbia pictures versus gallow.

 

333

00:43:16.172 --> 00:43:40.090

Michelle Yeung: So George Gallo and Bob Israel wrote the screenplay bulletproof hearts. At the time Gallo was an employee of his own loan out company called Sweet Revenge Productions. Israel did not have a loan loan out company together they wrote the screenplay that later became the very popular movie bad voice. In 1995,

 

334

00:43:40.887 --> 00:43:51.829

Michelle Yeung: in 2,022, Gallo and Israel serve termination notices to get the the copyrighted work back.

 

335

00:43:51.830 --> 00:44:12.550

Michelle Yeung: I wanna point out here. Gallow tried to serve termination right notice. At the time he was an employee of his loan app company. It was not the loan out company who served the termination right, because, if you remember, works made for hire don't have termination rights privileges. So

 

336

00:44:12.840 --> 00:44:36.860

Michelle Yeung: this is the ongoing case. There is no outcome yet. You can see. The date of this case was brought June 20, third, 2023, and Mark has mentioned there's a lot of litigation, and these things do go on for a while. But there are remaining questions. Right with is gallows, termination notice valid. At the time he was an employee of his own company is a valid

 

337

00:44:36.860 --> 00:44:59.627

Michelle Yeung: well, what about Israel? Israel created or wrote the screenplay with Gallo. They are 50 50 owners of this screenplay, and if we recall in the early in presentation, you need majority owner to in order to serve the termination notices. So if gallows, termination notices and valid, what? How does that affect Israel?

 

338

00:45:00.280 --> 00:45:17.100

Michelle Yeung: we don't know this yet. Again, this is still an ongoing case. But it, it would be it would really be unfortunate for Israel if he wasn't able to terminate because of gallows loan out company at the time when he wrote the screenplay.

 

339

00:45:17.630 --> 00:45:21.099

Marc Misthal: Michelle before before we go on. How do you think this one's gonna turn out.

 

340

00:45:21.950 --> 00:45:31.879

Michelle Yeung: Well, if we go by statute and by, and just go by the rule, I'm gonna I I feel bad for Israel. That's all right. He

 

341

00:45:31.880 --> 00:45:55.379

Michelle Yeung: a if Gallo did not have a loan out company when he wrote the screen, the screenplay. They are 50 50% owner of this screenplay, they would have been able to serve this notice and terminate together. But because gallows, termination rates is in question. You know. It's it's going to be a tough case. And I'm I'm actually interested to see how this turns out, because

 

342

00:45:55.380 --> 00:46:02.919

Michelle Yeung: the President is going to set out is going to affect people who may could be considered using loan app companies for estate planning purposes

 

343

00:46:03.306 --> 00:46:13.730

Michelle Yeung: in the future, because it is one of the methods that we can use to hedge against the dispatcher errors from exercising these termination rates.

 

344

00:46:14.400 --> 00:46:21.659

Marc Misthal: Reading reading between the lines. I'm taking it to you to mean that you think Columbia right now has a good case. Obviously.

 

345

00:46:22.890 --> 00:46:29.930

Marc Misthal: this is subject to whatever comes out in discovery, and whatever motions are filed, etc. But as things stand now.

 

346

00:46:30.790 --> 00:46:36.879

Michelle Yeung: I think. Well, yeah, I think so. It does it. It's it doesn't look good for them. Let's just put it at that.

 

347

00:46:37.300 --> 00:46:37.990

Marc Misthal: Fair enough.

 

348

00:46:38.511 --> 00:46:47.379

Michelle Yeung: Okay. So in other than low enough company, what are another option for authors to

 

349

00:46:48.345 --> 00:46:55.320

Michelle Yeung: to protect their grants to their intended beneficiaries. And another method is

 

350

00:46:55.320 --> 00:47:15.688

Michelle Yeung: to create a will. And again, if you recall termination rights, are not applied to, grants me through a will, and it pains me to say this as a State planner, because I always advise my clients to do planning during my 10. Do a revocable trust. Make sure your assets are in your revocable trust.

 

351

00:47:16.040 --> 00:47:25.451

Michelle Yeung: so that you could avoid probate. The courts in New York, especially New York City, are notorious for taking months, even years, to probate over

 

352

00:47:25.920 --> 00:47:34.159

Michelle Yeung: and so to save on cost, time on headaches. My advice to clients is to always have a trust.

 

353

00:47:34.200 --> 00:47:53.769

Michelle Yeung: assign your rights to your companies, your businesses. Transfer all your assets, regardless of whatever type they are to your trust, avoid probate but in the realm of copyrighted work. I kinda have to take my word back and take a step back and say.

 

354

00:47:53.770 --> 00:48:15.361

Michelle Yeung: in this instance, maybe the will is the better option, because grants again, grants me through A will is not subject to termination, right? So what should also do, or what what you should you advise your your client know your errors. If the author, your client, does not want to leave his Co. His or her copyrighted words

 

355

00:48:15.710 --> 00:48:20.190

Michelle Yeung: to spouse children or grandchildren

 

356

00:48:20.190 --> 00:48:43.850

Michelle Yeung: then doing a revocable trust is not the best option, because if the termination window hasn't opened during the author's lifetime, those rights are inherited to the children, and this and the spouse and the grandchildren, and, as you recall, they're in illegal, unwaivable rights. The author cannot contract with the you know his family to say, I will give you X dollar amount

 

357

00:48:43.850 --> 00:48:57.310

Michelle Yeung: if you never exercise your termination rights that is not permitted, he can still do it. This family will just get a extra bonus payment upfront, and still be able to terminate there to terminate the author's grant in the future.

 

358

00:48:57.827 --> 00:49:07.369

Michelle Yeung: So an option would be, create a plan as a a good plan, have a revocable trust, and do a poor over will.

 

359

00:49:07.370 --> 00:49:29.140

Michelle Yeung: Purpose of the poor over will is to provide privacy because all wills are a public document if they are probated in the court system. I'm sure most authors would prefer privacy have a poor Overville that says all of my copyrighted works will be transferred to my revocable trust in the name of you know, Michelle, young, revocable trust and

 

360

00:49:29.140 --> 00:49:40.410

Michelle Yeung: going through probate. We have eliminated determination rights for this for the people that the author did not want to receive these copyrighted work.

 

361

00:49:41.916 --> 00:49:54.719

Michelle Yeung: so I wanted to use a case to highlight that. And mark has already shown you the termination notice that was served in this particular case, and it's Livingston versus J. Livingston. Music. Inc.

 

362

00:49:57.900 --> 00:50:14.560

Michelle Yeung: so Jay Livingston was being a music Co. Many famous songs he including one of them is call, whatever will be, will be. And he had a very elaborate estate plan.

 

363

00:50:15.153 --> 00:50:29.499

Michelle Yeung: He worked on it for over 15 years. And he had 13 trust amendments, and as a State planner that already sounds like a headache. But I'm sure he had great lawyers to advise him and help him create this plan.

 

364

00:50:29.892 --> 00:50:47.549

Michelle Yeung: He wanted to provide for his only daughter and only granddaughter, Livingstone. We did not have other children or grandchildren. It was just one daughter and one granddaughter, and the trust held all of the copyrighted works. Of his musical compositions.

 

365

00:50:50.808 --> 00:51:15.129

Michelle Yeung: Livingston died in 22,001, and in 2015 his daughter Trevina started to serve termination notices on over 50 of his musical composition music compositions. As a result, unfortunately for the granddaughter Tammy, she starts to receive less and less royalties, and at the end, maybe into none

 

366

00:51:15.130 --> 00:51:27.139

Michelle Yeung: at all. Unfortunately for Tammy, she was unable to stop her mom because her her mom was the one who had the the termination rights.

 

367

00:51:28.940 --> 00:51:45.484

Michelle Yeung: her mom was the only one who could serve at the time, and her mom had a hundred percent ownership of those termination rights. So even though Tammy was a grandchild of Jay, she couldn't do anything to stop mom. And slowly

 

368

00:51:46.080 --> 00:51:50.732

Michelle Yeung: Mom was able to regain more and more grants of the

 

369

00:51:51.290 --> 00:51:55.569

Michelle Yeung: the work backed for herself, and Tammy was left with

 

370

00:51:55.810 --> 00:51:59.470

Michelle Yeung: very little, so you know the lesson. Here was

 

371

00:51:59.560 --> 00:52:03.289

Michelle Yeung: Pat Jay done a will along with

 

372

00:52:03.300 --> 00:52:12.180

Michelle Yeung: all the trust that he's done. Then his plan wouldn't have been bluen by his daughter. Because, as my suggestion.

 

373

00:52:12.370 --> 00:52:35.778

Michelle Yeung: creating a revocable trust, he which Jay could have done with all of his amendments set out a very elaborate plan for his daughter and granddaughter, but not to the grant. Not have the copyrighter word actually funded into the trust or granted to the trust until his passing and through his will, it has to be through his will. Then

 

374

00:52:36.150 --> 00:52:48.279

Michelle Yeung: by going through probate, the termination rights would not would not pass on to his daughter, and would not have been allowed, would not have allowed her to ruin his plan

 

375

00:52:49.020 --> 00:53:08.829

Michelle Yeung: so as a recap. Just, you know, be aware what doesn't work. If your client, the author, wants to plan in giving his copyrighted works or her copyrighted works to individuals that are not his usual. You know. Family members, you know, spouses, children, grandchildren.

 

376

00:53:09.430 --> 00:53:38.970

Michelle Yeung: then really look to see what his plan is, and really at that point consider whether or not will would be a better option, or using a loan on company and making and and making the new works that the author will create in the future be considered. May works may for hire so so that there would be these options for him to plan to ensure the property goes to the copyrighted work goes to the authors intended.

 

377

00:53:39.390 --> 00:53:51.590

Michelle Yeung: Keeping in mind that the termination rates are not, are not wavable or unwaivable in the Elimble you cannot contract with beneficiaries so that they agree not to

 

378

00:53:52.623 --> 00:54:10.099

Michelle Yeung: exercise those rights in the future, and also to make make sure that the author knows that he has these options right? And you know, seek out estate planners who are aware of these particular nuances in the copyrighted realm. And that's all for

 

379

00:54:10.470 --> 00:54:14.479

Michelle Yeung: my presentation today, Mark, do you have any closing words.

 

380

00:54:15.310 --> 00:54:17.860

Marc Misthal: I think what I would say is.

 

381

00:54:18.120 --> 00:54:25.109

Marc Misthal: this is definitely an area that is not easy. There's a lot of pitfalls

 

382

00:54:25.590 --> 00:54:29.230

Marc Misthal: in terms of what's required by the copyright act, and in terms of

 

383

00:54:29.350 --> 00:54:33.190

Marc Misthal: what is required in terms of the State planning

 

384

00:54:34.205 --> 00:54:40.859

Marc Misthal: and it's definitely some place where, if you've got a client who has copyright rights

 

385

00:54:41.580 --> 00:54:47.020

Marc Misthal: it's definitely a good idea to whether it's us or somebody else to speak with somebody

 

386

00:54:47.438 --> 00:54:54.429

Marc Misthal: who's familiar with this and can provide counsel so that no mistakes are made because the likelihood is

 

387

00:54:54.690 --> 00:54:59.540

Marc Misthal: there's gonna be some litigation. We've talked about 3 or 4 cases here.

 

388

00:54:59.895 --> 00:55:07.600

Marc Misthal: Believe me, there's a lot more. There was one recently about top gun, 2 cause. The original movie was based on

 

389

00:55:07.640 --> 00:55:11.959

Marc Misthal: an article, and the author of that article his heirs

 

390

00:55:12.657 --> 00:55:16.829

Marc Misthal: we're suing to try and terminate the grant to

 

391

00:55:16.850 --> 00:55:19.299

Marc Misthal: try and get some money out of top gun 2

 

392

00:55:19.651 --> 00:55:22.450

Marc Misthal: that decision just came down, and they they fail.

 

393

00:55:23.890 --> 00:55:28.183

Marc Misthal: but there's a lot of things that happen, and there's a good chance that

 

394

00:55:29.570 --> 00:55:33.200

Marc Misthal: litigation is going to ensue, especially if there's

 

395

00:55:33.510 --> 00:55:35.240

Marc Misthal: some amount of money at state.

 

396

00:55:36.780 --> 00:55:41.380

Marc Misthal: so I I think I I would close with that, and I would close also with saying.

 

397

00:55:41.440 --> 00:56:02.259

Marc Misthal: you have our contact information up here on the screen. If you've downloaded the slides, you have it. Please feel free to reach out to either of us with any questions. We're happy to take them. We're happy to do what we can to offer guidance, etc. And I just wanna thank Jonathan again for having us on. It's certainly much appreciated.

 

398

00:56:02.810 --> 00:56:08.667

Jonathan Shenkman: Great. Thank you so much. Mark and Michelle. And if anyone has any specific questions, new business opportunities.

 

399

00:56:08.960 --> 00:56:33.480

Jonathan Shenkman: or any other issues I'd like to discuss, please feel free to reach out directly to Mark Michelle or myself where appropriate, and I'll be sure to also include their contact information and a follow up, follow up email, to this program. As I mentioned at the onset, the goal. These programs stay up to date on timely wealth management related topics, and to collaborate where appropriate. I think we can all agree that the clients who are best prepared are the ones who are served by team of knowledge, bull advisors.

 

400

00:56:33.600 --> 00:56:38.000

Jonathan Shenkman: 4 more quick guidance before I let you go first. And most important

 

401

00:56:38.160 --> 00:57:06.490

Jonathan Shenkman: later. Today, you're gonna receive an email from me with an evaluation form for the program will ask you to input the code that I mentioned here today in order to receive credit. After that is submitted in the coming days you will receive an email from Ace seminars with your certificate again, please keep in mind. Please keep an eye out for an email from a seminars. If you don't see that email in the next few days, be sure to check your spam folder again. The email with your certificate will not be from me, it will be from Ace seminars.

 

402

00:57:06.550 --> 00:57:33.209

Jonathan Shenkman: Second, my Spring Webinar series on May thir is on May thirtieth, on the topic of qualifying for qualified small business stock. Section 1202, featuring Andrew Katzenberg, partner and Aaron shot Aaron Fox shift based in both New York and Washington, DC. And I'll send out an invitation to this program in the coming days. In the meantime, if you have a friend, colleague, or client who like to be notified of my upcoming webinars. They can email me with the word webinar in the subject line, and I'll add them to my webinar distribution list.

 

403

00:57:33.210 --> 00:57:58.189

Jonathan Shenkman: My email is Jonathan at Parkbridge wealthcom. Third, you can follow all my work on Twitter and Instagram at Jonathan on money. You could also listen to my weekly podcast called Jonathan on money which is available on apple spotify or wherever you get your podcast and you can watch my new daily financial planning videos by follow me on Youtube, at Jonathan on money as well. And fourth, please take 30 s to fill out my my survey at the end of this program. It helps me improve my way

 

404

00:57:58.190 --> 00:58:08.210

Jonathan Shenkman: and provide timely and interesting content to attendees. I thank you in advance for that. And with that this concludes today's session. Please stay safe, healthy, and have a wonderful day, everybody.

 

405

00:58:09.350 --> 00:58:10.579

Michelle Yeung: Thank you. Goodbye.

 

406

00:58:10.800 --> 00:58:11.609

Marc Misthal: Thank you.