Answers to Burning Legal Questions That Will Keep Your Film from Going Up in Flames
Reblogged from NoFilmSchool
Let’s be honest — most of us are not savvy when it comes to entertainment law. In fact, it’s one of the areas of filmmaking that, although absolutely essential, can staunch the flames of creativity and bring an entire project to a standstill. However, entertainment attorney Lisa Callif answers some of the most pertinent development, production and distribution questions many of us are asking, offering insight into the world of film litigation as a lawyer whose focus is representing independent filmmakers.
An entertainment attorney at Donaldson + Callif, Callif was named as one of The Best and The Brightest by Variety in 2011, and has much experience in the fair-use doctrine, an important area of expertise for her documentarian clientele. She has worked on documentaries such as I’m Still Here, The Invisible War, Waiting for Superman, and This Film Is Not Yet Rated.
In an Film Independent interview, Callif answers several questions that are typical for independent filmmakers who want to protect their films at all phases of production.
I’m a writer/director. What are the best ways that I can protect my project before I start pitching to production companies?
It might sound counter-intuitive, but the best way to protect your project is to develop it as much as you can before pitching it. Don’t pitch an “idea.” Ideas aren’t copyrightable and as we have probably all experienced, if you have a great idea, there are probably one or three or 20 other people with that same idea. What is protectable and probably unique to you is the expression of that idea. If you are only at a treatment stage, make sure your treatment is fully developed; give the characters backgrounds and identities, develop locations and make sure the story is complete with a beginning, middle and an end. If you’re pitching a series, have a per-episode breakdown, with character arcs, detailed storylines and other creative expressions that are protectable. It’s much harder for someone to steal your work if it is fully developed. And why would they? You’ve already done a lot of the work. It’s much cheaper for them to hire you, or at least buy your project, rather than risk a lawsuit. Of course, you should register treatments, outlines and scripts with the Writer’s Guild of America and register completed scripts with the US Copyright Office. I highly recommend you do so; however, those registrations only protect you in the event of a dispute. To help ensure you don’t get to the dispute phase of things, do a lot of good work before you pitch. Oh, and make sure you trust the folks you are sending your materials to. Keep good records of who you send it to and everybody in any meeting you have about your project.
When shooting recognizable places or products, what kinds of written permission should I acquire beforehand?
This is an issue of trademark law. Briefly, trademark laws were developed to protect consumers from being confused about the “source of origin” (where the product or service comes from). Let’s look at an example – Coke. We all know what Coke is. We know what it tastes like. We can picture the red and white can in our heads. We may even know the ingredients (if you’re an obsessive label reader, like I am). TM law makes it illegal for another company to come along, create that same look and put their own beverage in that can. That would confuse the consumer. The consumer would buy the Coke look-a-like, think it was a Coke and get lemonade. Not cool.
So, using that information as our foundation for this question, shooting a building front or a name of a store or a brand or logo, is okay, so long as the following criteria are met: (i) the place or product shot is portrayed in the manner it is commonly portrayed; and (ii) the audience is not led to believe that the brand or store is sponsoring or associated with your film. If you are shooting in a supermarket and you’re in the canned food aisle and you shoot Green Giant veggies and Campbell’s Soup – that’s okay. No permission required. If you are shooting Rodeo Drive and you catch the storefronts of Gucci, Prada, Hugo Boss and Bottega Veneta – that’s also okay. No permission required.
What’s not okay is if you shoot in the canned food aisle and your actor picks up a can of Green Giant green beans and there is blood oozing out of the can. You don’t want to harm or “tarnish” the mark in any way. That is where you would get into trouble. It’s also not okay to trick the viewer into thinking Prada is associated with your film by using the storefront as the sole image on the cover of your DVD.
Keep in mind that many producers do not want to put brands in their films because they want to get a product placement fee for doing so. This is not a legal reason, it’s a business one. Big studios also have policies about the use of products in productions, but these are business/policy reasons and not necessarily legal. Additionally, brands can be sensitive and may not be happy with being used in a film if they don’t like the message or how they are being portrayed. However, if you keep within the confines of the above, the brand owner might be upset, but won’t have a valid claim.
I have a valid location release to shoot in a subject’s home. Do I still need to worry about getting releases to photograph copyrighted materials in their home?
This is a great question. The current state of the law is that you do need to get releases to photograph the artwork and other copyrighted materials in the home. When the owner of the artwork purchased the piece, he purchased the right to display the artwork in his home, but not to make copies of it. A video recording of the artwork is a copy, so before shooting, make sure that all artwork on the walls is “clearable” or replace it with something that is. As for book covers and magazines, you can shoot those without getting permission, so long as they are not the focus of a scene and merely used as set dressing.
I’m creating a Kickstarter campaign for my project. Do I have to license the music I plan to use for the campaign video?
Many people think they don’t have to clear music in a campaign video or teaser because the film isn’t being sold or commercially distributed. That’s not the case. The act of copyright infringement is making the copy. It’s not the selling of or profiting off of the copy. Once you make the copy of the song to put in your video, without permission, the act of copyright infringement has occurred. So the answer to the question is, “yes, you need to license the music.” That being said, the risk of being sued is relatively low and if a copyright owner gets wind of the fact that you’re using the music without permission, you can always take it down. However, keep in mind that a copyright holder can take action against you even if you haven’t made any money. Copyright law has what is called “statutory damages” so the copyright owner doesn’t have to prove actual damages. The court can award damages between $750 and $150,000 depending on the level of egregiousness of the infringement.
By Lee Jameson / Film Education Coordinator
- Write, Direct, Repeat: Working with Line Producers [Interview] (scriptmag.com)
- How Trademark Law Helped Create “XXX” (plagiarismtoday.com)
- Understanding Copyright Basics (brookshammond.wordpress.com)
- Does the Punishment Fit the Crime? A look at IP Laws in Nigeria (nlipw.com)
- HOW I APPLY FOR COPYRIGHT – First Chapter (tomhrichardson.wordpress.com)