Thursday, March 24, 2011

It's a Web, Web, Web, Web World!

Seems like every writer, director, producer, casting agent, production company, post-production house and studio now has a webpage. All well and good as the Internet can – and often is – one of the most cost-effective ways to reach out and target someone, be it those who might work with you, those who might want to buy a ticket to your “picture” or those who might want to purchase your services and/or products.
Chances are, you too already have a webpage…and if you don’t, you should. Here’s why: aside from having the ability to look insanely cool, webpages can have embedded practically any media you want. Are you a musician looking for a publisher? You’ll want your webpage to have some downloadable music files. Just made your first film? Then you’ll want your webpage to have trailers. Do voiceover work? Audio samples of your voice should be readily available on your webpage.
That being said, many entertainment-based webpages are lacking a posted Privacy Policy. In California (where there is no small amount of entertainment activity), the law (as embodied in Business & Professions Code §§22575-22579) requires that operators of a commercial website or online service that collects “personally identifiable information” post a Privacy Policy on the website and also to comply with that posted Privacy Policy. Do most websites collect such “personally identifiable information”? Generally, yes; as soon as there is the ability for a user of a particular webpage to request information online “personally identifiable information” is collected. Specifically, “…[t]he term ‘personally identifiable information’ means individually identifiable information about an individual consumer collected online by the operator from that individual and maintained by the operator in an accessible form, including any of the following: [a] first and last name; [a] home or other physical address, including street name and name of a city or town; [a]n e-mail address; [a] telephone number; [a] social security number; or, [a]ny other identifier that permits the physical or online contacting of a specific individual.” Bus. & Prof. Code §22577(a)(1)-(6) [emphases added].
Importantly, the above definition dovetails with the law viewing your website as “commercial” even though you might think it’s not. Most folks set up a webpage in the hopes of doing everything to finding an agent to obtaining financing for their project. These are all commercial activities. And they should be. As well, using your webpage to engage in “data mining” (e.g., whose looking at my webpage? how often? have they bought tickets? what sorts of information are they requesting? and so on, and so on) is not only permitted, it’s a good way to find out of your webpage is generating the “buzz” that you want.
To do this, though, you better be operating within the bounds of the law. The good news about California’s requirements vis-à-vis Privacy Policy compliance is that Business & Professions Code §§22575-22579 is not difficult and clearly enumerates what’s required, containing some pretty clear guidance.
As to posting, §22577 provides, “[t]he term ‘conspicuously post’ with respect to a privacy policy shall include posting the privacy policy through any of the following: [a] webpage on which the actual privacy policy is posted if the webpage is the homepage or first significant page after entering the web site; [a]n icon that hyperlinks to a webpage on which the actual privacy policy is posted, if the icon is located on the homepage or the first significant page after entering the web site, and if the icon contains the word ‘privacy’ the icon shall also use a color that contrasts with the background color of the webpage or is otherwise distinguishable; [a] text link that hyperlinks to a web page on which the actual privacy policy is posted, if the text link is located on the homepage or first significant page after entering the web site, and if the text link does one of the following: [i]ncludes the word ‘privacy’; [i]s written in capital letters equal to or greater in size than the surrounding text; [i]s written in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks that call attention to the language; [a]ny other functional hyperlink that is so displayed that a reasonable person would notice it.”  Bus. & Prof. Code §§22575, 22577(b)(1)-(4).
As to the content required, a webpage’s Privacy Policy must do all of the following: “…[i]dentify the categories of personally identifiable information that the operator collects through the website or online service about individual consumers who use or visit its commercial website or online service and the categories of third-party persons or entities with whom the operator may share that personally identifiable information; [i]f the operator maintains a process for an individual consumer who uses or visits its commercial website or online service to review and request changes to any of his or her personally identifiable information that is collected through the website or online service, provide a description of that process; [d]escribe the process by which the operator notifies consumers who use or visit its commercial website or online service of material changes to the operator's privacy policy for that website or online service; and, [i]dentify its effective date.”  Bus. & Prof. Code §§22575(b)(1)-(4).
You get the picture (pun intended).


Whether it is a Homeric epic recited onstage at the theater at Epidaurus, a classic comedy reworked and replayed in an amphitheater in Rome, Shakespeare resounding from the boards at the Globe Theatre to one of the stages at Ashland, a Broadway musical performed at the Hollywood Bowl, a motion picture premiere, streaming Internet media or a podcast series, the dramatic arts entertain us, inform us, teach us, connect us, take us to new places, expand our horizons and continuously offer up opportunities (including – yes – employment) for those who participate, including writers, producers, actors, directors and all those that work to develop entertainment, in the dynamic arena we know as “The Business”.
And attorneys, such as the author of this Blog.
Without much that lawyers do – ranging from assembling an option and purchase agreement for the literary property that forms the genesis of all projects, to counseling a production company, to negotiating the terms of distribution agreements, and so on and so on – projects would simply not get off the ground. The good news is that when the legal counseling is done right, everybody wins: the writer, the producer, the director, the actors, the post-production people, the craft services folk and, of course, all those who experience the final entertainment product.
The purpose of this Blog is to provide insights into the goings-on in the entertainment business in general – hence the title of “The Arts Law” – and current legal issues in particular…all delivered with clarity, intelligence, realism and no small amount of humor.