Legal Question in Entertainment Law in New Jersey
I recently produced a tv pilot with several other people under an LLC. Now that the pilot is done and we are ready to sell it, the writer has decided to drop out and not sign the contracts to be a part of the LLC. Who ultimately owns the rights to use the physical pilot video? One member of the LLC fully funded the pilot but the script was solely written by the writer and now the writer wants to restrict any use of any material that is associated with the story and script (essentially saying they do not want us to use the pilot itself to sell).
The writer owns the story concept, but can the writer really prevent our use of the physical pilot video itself if another one of our members completely funded it? The writer is the only person not signed contractually into the LLC. Our intention is to sell the concept of our production method through the showing of the pilot and not the actual story itself as we plan to do a whole different story altogether.
Though the writer is in the WGA, this was all done through our LLC which is currently not a signatory production company of the WGA. Basically non-union.
2 Answers from Attorneys
You have a complicated fact pattern. You are probably going to be disappointed, but unfortunately there is no straightforward answer as to ownership without first examining the operating agreement of the company, any assignment docs the writer may have executed as well as any agreements the individuals in the group and/or the LLC had with the writer and then further research cases in the matter.
I'm sure you have a lot of riding on this and I would recommend that you retain an attorney to research the issue. This initial. consultation is not going to be expensive and it will give you great insights on how to resolve the issue.
Feel free to contact my office at your earliest convenience.
Roman R. Fichman, Esq.
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I don't disagree with what Roman says, but suggest that, depending on some key facts, you may get a fairly quick answer -- or not. Your question suggests to me that an attorney can help you pinpoint what bits of information are really relevant, and perhaps take a broader look, as well. For example, you have focused on the fact that the writer did not sign the LLC agreement. But for the "work made for hire" doctrine, a more important question may be whether the writer had any kind of written agreement to create the work, or whether the writer was employed by the LLC. Similarly, you ask about rights over "the physical pilot video itself". The use you contemplate may be beyond the scope of the copyright. For example, whoever owns the physical copy is free to distribute that copy, even if it can't be reproduced. And, there is no limitation on the right to perform the work so long as it is not a public performance.
A practical non-copyright question may be the marketability of the show without the writer. Will prospective buyers say, "Nice pilot, we love the writing, but if the writer isn't a part of it going forward, we aren't interested"?
An attorney might also help you explore other theories, such as whether the writer's actions induced the LLC's investments to a degree that prevents the writer from doing (or not doing) what might have ordinarily been OK to do (or not do) if no one had acted to their detriment based on representations made by the writer.
In short, there are many factual inquiries your lawyer will have, and they may extend beyond what you have listed.
Good luck.
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