Saturday, April 4, 2009

Clearance & Copyright by Michael C. Donaldson

Michael C. Donaldson. Clearance & Copyright: Everything You Need to Know for Film and Television. 3rd Ed. Los Angeles: Silman James Press, 2008.

This is an excellent resource book on legal issues involving clearance and copyright issues affecting the film industry. Numerous sample contracts are presented within this book.

For the first 150 years of the printing press, printers could print what they wished, excepting censorship from the King. Queen Anne in the 18th century gave authors the right to determine which printers were allowed to print their works. The authors usually were paid by the printers they chose for that right.

The British and French idea of a copyright hold by authors extended to the British colonies. The idea of a copyright
was included in the U.S. Constitution.

A copyright automatically exists to any original book, play, song, photograph, etc. There is no registration required.

It is a violation of the copyright law to make even one copy of a movie.

A copyright lasts 70 years after the death of the author. If a work was written by a corporation, employee or hired employee as a condition of employment, the copyright lasts the lesser of 1.) 120 years from when if was created or 2.) 95 years after it was published.

A derivative work must secure permission from the copyright owner in order to produce an alteration of an original work.

A public performance of copyrighted material, even if performed for free, must request permission from the owner of the owner of the copyright.

Ideas can not be copyrighted. Copyright protects something in a tangible form. Thus, the more written, the more it is protected is someone steals it.

An implied contract bonds an agreement between parties even though the terms have not been settled.

An express contract is an agreement between parties of specific terms, either in writing or orally.

A dispute where a court agrees a story concept was stolen requires both parties to be industry professionals. A studio has no obligation to pay a non-writer for a movie concept. The court also has to agree that the stolen concept was specific enough to the concept used in the movie. The courts in most states will require the concept must be a novel one. Payment for the concept requires showing the author was denied the ability to make money for it in order for it to be a contract dispute rather than a copyright dispute.

A producer who pitched an idea that a studio makes has an implied contract. Courts have upheld this when the studio than made the film with no payment to the producer who pitched the idea. Such cases are often difficult to prove. The person accusing another of stealing ideas has to show by the preponderance of evidence that the accuser’s ideas were sent and received by the defendant, that it was clear the sender expected payment should the idea be used, and the accused knew this and accepted the idea on such payment terms.

Many studios require writers to agree to waive their rights before allowed to pitch ideas. Some studio lawyers avoid making this requirement too overbearing that a court would find it unenforceable.

Writers should keep all writings from a studio mentioning their ideas. This may be useful if a paper trail is every needed. It is helpful to keep a record of all meetings and telephone discussions.

Treatments and scripts should be registered with the Writers Guild (WGA). Mailing a script to oneself and not opening it until a trial may not work as opposing counsel may dispute that the seal can not be proved to have never been altered.

Another may make fair use of another’s work depending upon how it is used, depending whether or not it is used for profit, the nature of the work, the degree to which a copyrighted work is used, and how much the use of the work affects its value. Appellate courts have made inconsistent rulings regarding fair use. There are arguments between the need for copyright protections versus the needs of First Amendment expressions.

The resuse of the Reginald Denny tape by stations that did not obtain a license to show it were found to not have had a fair use to show it. Even though only 30 seconds of the tape was shown, it was considered the “heart” of the film.

It is not fair use to show the heart of someone else’s film.

The reuse of another’s film that is transformative, such as put into a documentary, can be a fair use of that film.

The publishing of concert posters in a book transformed the original use of posters and were fair use in the book/

The test of fair use is whether art of science is advanced move by the use of a copyrighted material than if it is not used.

A copyrighted material may be used for critique, whether social, cultural, or political, so long as the use is a presentation of the work.

Copyrights material should be attributed. Duplication of an attributed copyrighted material should not be more than what is required for the reuse purpose.

A copyrighted material unintentionally filmed for another purpose can be reasonably used so long as the copyrighted material does not become a main focus.

A copyrighted material can be used in a historical documentary, so long as it is not used more than required to make the intended part.

Court rulings have failed to produce clear definitions of what is or is not fair use of copyrighted materials. Fair use will require that it was necessary to make a point, only enough required to make the point was used, and there is a clear connection between what is used and the point.

A resume fee is required to be paid to a Screen Actor Guild, Directors Guild, or Writers Guild member for reuse of a post-1960 film. A reuse fee is not required when it is reused under fair use.

Used works should be credited, including naming the director. This is required in France and other foreign countries.

A copyrighted material on a book cover can only be enough to inform what the book is about but not enough to persuade the buyer to buy the book.

A movie whose advertising noted the existence of clips as an inducement to buy the film violated the fair use of the clips for historical purposes.

There are insurance policies for films that include a fair use rider.

Background music that unintentionally appears in a background and its sound is reduced as much as possible can appear in a documentary.

A short amount of music discussed in a film may be fair use.

A biographical documentary may allow small amounts of the music by the subject of the documentary.

Compositions and recordings have different fair use standards.

Satire can directly take material and comment on it.

A parody can be made of a copyrighted work that criticizes or comments on it so long as it does not diminish the value of the copyrighted work. There is no requirement the parody contain humor. 2 Live Crew’s “Pretty Woman” was ruled a parody of Roy Orbison’s “Oh, Pretty Woman”.

Critical commentary may parody another’s work. Parody may be done by a serious work.

Public figures can be parodied.

A trademark can be parodied.

A copyrighted song presented humorously or by an impersonator is a violation of the copyright.

A slight change to a recognizable song violated its copyright.

A trademark’s reputation can not be abused in a film.

“Animal House” is an example of a movie that made satirical comments without using any copyrighted materials to make those points.

Jokes usually can not be copyrighted, although parodies can.

A comedian’s expressions copied verbatim can have copyright protections.

All pre-1923 works are in the public domain.

Some pre-1978 works have expired or renewed copyrights.

Works produced by Federal government employees as condition of their employment are public domain.

Studios and movie financiers prefer that a film purchase all underlying rights.

The retelling of a story an author claimed as fact cannot than have the author cliam it really is a protected fictional story.

“Snow White and the Seven Dwarfs” is a public domain story. Independent additions to the work Disney are copyrighted by Disney.

A pan and scan alteration of a public domain film can be protected and create a copyright infringement if reused by another.

A non-commercial Creative Commons license prohibits any commercial use of the work.

A no-derviative Creative Commons license prohibits any derivative work of that work.

An Attribution Share Alike 3.0 license allows others to obtain the license granted for its use in the same manner as the work itself is licensed.

An Attribution 3.0 license allows use of the owkr so long as attribution is given.

A work whose owner can’t be found after a legitimate substantial written search is an orphan work that can be used. If the orphan work’s owner later appears, fewer copyrighted protections are afforded the owner/

Filmmakers often pay archives for public domain films as payment for the services for the archives/

The updating of the soundtrack in a public domain movie recaptured the film’s copyright.

Popular visual characters or drawn characters are licensed so royalties must be paid on advertising.

A music video using a character looking like Freddy Krueger was prevented from being shown.

A television commercial that used a James Bond copy was successfully sued for violating James Bond’s copyright.

A “holdback period” is when a copyright owner allows one party, but no others, to develop a film proposal.

A “right of first negotiation” requires a copyright owner to conduct good faith negotiations with one set party before negotiating with anyone else.

A “right of last refusal” gives a party the right to match the final offer made by another.

A “franchise” character is a popular character that can be expected to attract many viewers, especially during the first weekend of a movie’s release.

A copyright dispute over a character may depend on whether a character has enough original “character delineation”. Also important, to a lesser degree, is the degree to which the “story being told” concerns the character in dispute.

A copyrighted logo that appears on clothing used as costume in a film that uses the clothing in its intended use should not be a trademark violation. Documentaries have less to worry about. A lawsuit was filed by the trademark owner of the Barney costume, but lost as it was a parody, over the commercial use of a Barney-like costume.

The owner of source material which a script is based upon owns “underlying property”. The “underlying rights” must be obtained from this owner.

A film company has to own the underlying work in order to do anything with the story that involves a film, including re-releases. A work with a –re-1978 copyrighted story may have seen its film rights to a studio cease when a writer died and those rights were inherited.

Often a studio buys an option of a film which gives the studio the right to decide if it will make the film. No other studio could bid on the film while the option remains in effect. The author advises the option be in writing.

A bible is a descriptive detail of a script story. There can be separate owners of a story, bible, and screenplay. Characters can also be separately copyrighted.

Film rights for most books are held by their authors.

The copyrights for most comic books are held by the publishers.

Magazine articles, newspaper stories, and non-fiction books may have two tiers of ownership by the authors and the subjects.

Films based on a song usually need to obtain rights from the song’s publishing company.

The film rights to most plays are held by the playwrights.

Film rights to sequels or prequels can be held separately from other film rights.

Unless a screenwriter is a “work for hire”, the copyright of the screenplay belongs to the screenwriter.

The copyright for a work for hire is the shortest time of either 95 years after publication or 120 years after its creation.

Most studies are double vested, with one production company that signs WGA members to a Minimum Basic Agreement (MBA) and another that signs non-union writers without the MBA.

Absent a written agreement, each joint author of a script has a right to make deals and is required to provide a share to the other writers.

In a joint writing effort, if one person has the right to decide what goes into the script, that person has superintendence over the script. Courts have varied over the degree to which superintendence determines the rights between joint authors.

The rights to a spec script remain with the author. The purchaser a script can change it as the purchaser desires/

A submission agreement allows someone to read a script and not be sued bo the author if the reader produces any similar film.

An enforcement contract has to specify what one party gets in return for how much payment, who the parties are, and the length of time the contract will last.

Copyrights are not required to be registered. The author recommends registering a screenplay before pre-production.

A court may award damages if a copyright is infringed.

A bank lender, investor, or creditor may have a security interest in a film.

People have a right of privacy, even to factual information about them. Courts have made different rulings on what can be discussed about a person’s private on film.

A person generally does not have a reasonable expectation to privacy when in public. Usually a person can be filmed in a public place. The following, though, may be disallowed to be shown if an affirmative misrepresentation was made in the filming.

The tort of false light occurs when a false statement harms or embarrasses a person.

A written release should be obtained from a person who is filmed in order to best avoid lawsuits from filming a person.

A Life Story Rights Agreement allows a film to be based on someone’s life.

A trademark used as intended and is not disparaged does not required permission to be used.

Caterpillar sued Disney for diluting its trademark by showing characters misusing their products. Caterpillar lost as it was the characters who were inept and not the product.

Whammo sued Paramount for depicting a character misusing its Slip ‘N’ Slide product. Whammo lost as it was obviously the misuse of the product that was shown.

American Dairy Queen Corporation successfully sued a movie that was planning on using the title “Dairy Queens:. The title was close enough to the established product Dairy Queen and the film title would damage its reputation.

Copied set designs can cause the original set designer to sue. Universal settled in such a lawsuit.

The filming of a building does not require the permission of its architect. Artwork in a public open space can be shown without permission in one court decision.

A documentary does not need a location agreement.

A fictional film should obtain a location agreement for all locations used. Government permits may be necessary for public locations. The author advises making sure the permission is obtained from the right sources. A building owner may not have the right to grant permission for filming inside a tenant’s space. A tenant may not have the right to allow cable for filming brought into a building/

Permission may be required to film a decorate art piece. Different court rulings have been reached on this issue. Issues to consider are whether a short focuses on the original art piece, if it is recognizable, and if it is a focal point rather than set dressing.

Books, magazines, and newspapers are not decorative arts.

A prop used as it is intended can be depicted in a film even if it has a copyright.

A prop created for a film should be an original piece. Using a knock-off protected by a copyright still can violate the copyright. A sculptor sued Warner Brothers seeking an injunction to prevent distribution of a movie using a similar sculpture. Warner Brothers settled the suit.

Music used in a film must be cleared. Deals must be negotiated with the holder of the rights to the music. Even adaptations of songs require approval.

Some films hire original composers.

A film that depicts a TV set another film requires permission from both the holder of the copyright of the film and the actors shown in the film.

A movie title has to be cleared. Movie titles do not have copyrights. They can be a product protected by trademark. Some movie titles have trademark status. The Motion Picture Association of America registers titles.

A title should not indicate an endorsement from anyone when no endorsement exists.

Errors and omissions insurance protects a film against accidental infringement of a copyright, trademark, person’s privacy, etc. Media/Professional and Chubb offers the bulk of this type of insurance.

A chain of title shows all ownership of a film from its beginnings.

A final film, called a locked film, should be registered with the Library of Congress.

A copyright infringement can occur if too many specific details of another film are used in a film. A court prevented the release of the movie “Great White” for being too similar to “Jaws.”


Michael Donaldson said...

Thank you for the wonderful review. You communicate a very good understanding of the concepts presented in the book.

Keep up the great work!

Best Regards,


Tchaikovsky Sounds Funny said...

Thank you for writing this book. It is an excellent resource. I hope readers note my notes are only scribblings of notes from your very useful writings.