This is part of a series of book excerpts from The Independent Filmmaker’s Law and Business Guide: Financing, Shooting, and Distributing Independent and Digital Films
designed to introduce filmmakers and others interested in creating content on the legal issues involved in the filmmaking process.
Although film is an expressive art form, it is also an increasingly international and highly commercial business. As a result, filmmakers should be very selective regarding choices to use a third party’s property—copyrighted works, trademarks, readily identified individual names or corporate names—without express permission. Permission is not always difficult to come by. Without the express permission, the errors and omissions insurance may be drafted to exclude any liability for the use of such content, and the lack of coverage may discourage distributors or exhibitors from buying or showing the work.
The issues regarding clearance become more difficult in the context of international film distribution. Different countries have very different approaches to censorship and to the kinds of content deemed inappropriate. In some cases, this relates to third-party ownership rights, and in other cases it relates to the action being filmed. In the United States, filmmakers risk changes to their MPAA ratings for depictions of smoking. In countries where alcohol is banned, the exhibition of drinking may be discouraged or banned as well. In some cultures, religious images may not be photographed. For example, images of the prophet Muhammad are banned from exhibition in some countries. And depictions of nudity are treated very differently from country to country and from medium to medium.
When a shooting script is prepared, it should be sent for clearance review, to ensure that the filmmaker has acquired all the rights necessary to film it. The resulting script clearance identifies all the script elements that may give rise to third-party ownership claims. It will identify the potential legal issues, and will instruct the film company to consult with the production attorney to resolve those issues. Many of the topics of the report are discussed elsewhere throughout this book: acquisition of literary rights, purchase of life-story rights for fictional works and documentaries, acquisition of music, and location agreements. The report should be reviewed carefully by the film company and its lawyer to identify the rights that must be acquired and the situations that can be avoided.
Script clearance should be undertaken well before principal photography begins. This provides the production company with sufficient time to make any script changes necessary and to acquire permission for all items that will be included in the film. If some of the permissions are not forthcoming, it is helpful to have enough time to seek permission from alternative sources.
Documentaries have a very different set of demands for clearance. Because a documentary filmmaker generally does not create the content of his shots, he may rely much more heavily on the fair use privilege, which allows the incidental inclusion of copyrighted material. Nonetheless, documentary films should also be subject to a clearance process, and documentary filmmakers should minimize conflict with other rights holders when practical.
Whenever a scene may involve content that is owned by a third party or that may include content banned in various markets, the filmmaker’s best strategy is to also shoot an alternative version of the scene that omits the questionable material. Scenes involving nudity can be shot with total nudity, then again with highly suggestive costumes. If the director wishes to shoot a scene that includes a billboard in the background, he should also shoot a version of the scene that removes the billboard from the frame.
By shooting coverage shots, the filmmaker captures the footage as he most desires it but also captures sufficient footage so that the film company has choices if faced with clearance problems or censorship. This is far preferable to making the inclusion or exclusion of a scene an all-or-nothing battle. With good coverage footage, any objections can be addressed with relatively inexpensive editing rather than the much more costly reshooting.
Script clearance reports will identify any overlap with identifiable locations. For example, a fictional locale may coincide with the uncommon name of a real city or region, and the institutions in that location may be unintentionally named in the film. If a script is set in the fictional town of Garonsburg and there happens to be one or two such towns in the United States, then references to Garonsburg High School, Garonsburg General Hospital, and the Garonsburg Police Department may all identify real institutions even though the screenwriter had never heard of them.
The film company does not necessarily have to revise the script to change such conflicting names. The use of an identifiable name will only interfere with the rights of another party if it defames that party or invades that party’s privacy rights. A casual reference that a character attended a high school or was born at a particular hospital is unlikely to defame any person or business. At the same time, however, film companies should try to avoid exclusions to their errors and omissions insurance coverage. Even an unfounded lawsuit can be very expensive. If the fictional location can be changed to a city that has a common name, it is less likely that the fictional name will be identified with one particular city. Within the fictional locale, the choice of institutional names should similarly be reviewed to avoid direct references, unless such references are intentional and important to the film.
For feature films, copyrighted materials should only be used with the express permission of the copyright owner. The claim that a filmmaker has a fair use privilege to show another party’s copyrighted work generally has little support if the work is being used as background or foreground decoration on a feature film or television show. Since there is a ready market for licensing images, the courts are quite reluctant to allow unauthorized copying of copyrighted works. Moreover, copyright owners tend to be very protective of their content, so the likelihood of litigation is high even in those situations in which the merits of the case would favor the filmmaker.
Obvious copyrighted materials may include stock footage, playback footage on television or in films, images that the set designer would use to decorate the set (artwork, posters, computer software screenshots), and pictures on T-shirts, jackets, or other costumes. Less obvious materials include the artwork on product packaging and billboards or public artwork that is visible on the street where one is filming.
There are exceptions to this general approach. For example, if the filmmaker is shooting cars driving on public freeways and incidentally captures the images of billboards, she should generally be protected by fair use, provided that their screen time is brief and they are only in the background. Some copyright owners are much more aggressive than others, however, so there is always a risk of litigation. Even with the background billboards, the errors and omissions insurance coverage may put an exclusion into the coverage for copyrighted images that are not cleared, or licensed.
Consumer products may be subject to strong third-party ownership rights. The names of goods are often trademarked, and their packages often feature copyrighted images. Scenes showing children playing games or characters eating prepackaged food will typically incorporate both copyrighted works and trademarks.
The best strategy is to seek express written permission to depict the product. The second-best strategy is to show the product itself but not its packaging. Once a soda has been poured into a glass, Coca-Cola no longer has any trademark or copyright ownership of the caramel-colored beverage. The actual product will be given far less legal protection and lend itself to much stronger claims of a fair use privilege than the depiction of the packaging.
Tobacco companies do not provide product placement permission, so film companies are strongly encouraged never to show the brands or use brand names in dialogue. Depending on the jurisdiction, the tobacco companies may be barred by legislation or court orders from providing their products to filmmakers in this fashion, and may even be required to defend against such use. Filmmakers should avoid brand references to tobacco products to the greatest extent possible, and use such content only after weighing the risks against the importance of the scene.
Despite these cautionary recommendations, filmmakers may rely on fair use to depict trademarked products or to use the name of such products and services in dialogue. A trademark owner cannot automatically stop a film company from showing its brand name in a scene. If the trademark is said or depicted accurately, the use in the film will not give rise to a successful legal action. Using trademarks without authorization will raise concerns for the insurance company, however, and could make eventual distribution more difficult.
Particular care must be exercised when a trademarked product is used in a dangerous or offensive manner. Manufacturers may feel compelled to take legal action to show their displeasure and send a message to the public that such use is unauthorized, even if there is only a weak legal basis for the action.
For example, in a 2006 episode of the NBC drama Heroes, a character mangled her hand in a garbage disposal on which the In-Sink-Erator brand name could be seen lightly etched into the metal. In-Sink-Erator claimed that the scene “casts the disposer in an unsavory light, irreparably tarnishing the product,” when in fact such a dangerous act would injure any person. NBC ultimately chose to digitally alter the shot to remove the trademark rather than face litigation. While NBC had done nothing legally wrong, and would very probably have won the resulting lawsuit, the costs required to defend the suit would have been higher than the costs of editing the episode prior to rebroadcast or DVD sales.
The clearance review will respond to any trademark referenced in the script. As a result, clearance reports often include a number of “false positives” if the writer has used a brand name in an action paragraph to describe the use of a product that will appear onscreen. Thus, if a character grabs a facial tissue but the script says he grabs for a Kleenex, the clearance report will identify a potential conflict with Kleenex. Depicting the product is not the same as using the brand, so these descriptions in the script do not raise issues for the film.
The screenplay should use only fictional character names. If the script uses a real, living person’s name but fictionalizes certain elements of the character, that only increases the likelihood that that the person can claim the use is defamatory, since the fictionalization means the use is knowingly wrong. To avoid liability for characters that are not intended to represent living persons, the script must not use a living person’s name, particularly in cases where
When a first or last name is used alone, it is much harder to associate it with a particular person than when first and last names are used together. Clearance companies suggest that a full name should not be used unless there are at least five individuals who can quickly be identified as having that name. A quick Internet search is a helpful tool to identify common names.
If real persons’ stories are used, then additional reviews and releases are required. The character names should be authorized, particularly if there is an attempt to depict real persons. Finally, names of performers in any of the unions to which the production company is or will become a signatory should not be used.
* Jon Garon is admitted in New Hampshire, California and Minnesota.
Adapted from The Independent Filmmaker’s Law and Business Guide: Financing, Shooting, and Distributing Independent and Digital Films, A Capella Books (2d Ed. 2009) (reprinted with permission). Jon Garon is professor of law, Hamline University School of Law; of counsel, Gallagher, Callahan & Gartrell.