Intellectual Property Rights Clearance for Film and Television In California
Film and television productions typically involve the contributions of multiple people, such as writers, artists, composers and actors. Intellectual property laws protect the creative works of these individuals from unauthorized use. Before a production can move forward, ownership of all intellectual property rights must be determined and cleared for use. Failing to take this step could result in significant legal problems, delays and extra costs for the production. Producers may want to seek help from experienced attorneys to acquire necessary rights, negotiate fair licenses and avoid liability.
What Is Intellectual Property Rights Clearance?
Rights clearance is the process of obtaining permission to use works owned by third parties. Materials may be protected by trademark, copyright, privacy and other federal or California state laws. The first step in the clearance process is determining what creative works have been or will be used in the production. Legal advice is essential in determining when intellectual property rights exist, who owns the rights and whether permission is needed. The production as a whole must be reviewed, along with each individual element, to identify any intellectual property rights that may be implicated and protected. Where permission or a license is necessary, an experienced attorney can help ensure that the scope and duration of the license encompasses all intended use of the work now and in the future.
When is trademark clearance needed?
Trademarks can be words, phrases, symbols, designs or a combination of those components that identify and distinguish the sources of certain goods or services. Some examples of trademarks include brand names, slogans, phrases, taglines, logos, product images and distinctive designs. These may be depicted in film and television productions as scripts, photographs, recordings, clothing, scenery and location shots. When third party trademarks are used, permission from the respective owners may be required unless there is an exception or defense under trademark laws.
Various defenses may allow for the use of trademarks without permission. For example, the Fair Use Doctrine allows a party to use a trademark as a descriptive term, rather than for its association with a brand, goods or services. In this case, the trademark is only used nominally, and consumers are unlikely to be confused. Fair use may also apply where the trademark is depicted in the context of commentaries, criticisms or parodies, where the trademark is used in an artistic or editorial parody, provided such use is not closely tied to commercial use.
What are the key issues in copyright clearance?
Copyright law can protect a variety of works, including text, illustrations, photographs, artwork, identifiable people, locations, buildings, monuments, music and sound recordings. Notably, there may be multiple copyrights in a single work. For example, a script may include excerpts from other writers, a photograph may show artwork by another artist or a musical recording may sample other compositions. Each individual element of a work must be considered, no matter how minimal its use, to determine whether permission is needed.
Work For Hire
Generally, the author or creator of the work holds the copyright. However, the work made for hire doctrine is an exception. A work made for hire is either:
(i) a work prepared by an employee within the scope of employment; or
(ii) a work specially ordered or commissioned; provided however, that the work falls into one of the nine work categories listed in the U.S. Copyright Act and the parties expressly agree in a written instrument signed by them that the work is considered a work made for hire.
This is an important concept as film and television productions often employ writers, editors and other parties, or they may use works that were prepared for third parties as works made for hire. When obtaining permission, it is essential that the correct party gives consent and appropriate work made for hire contracts are in place.
There are several common defenses available in copyright infringement. As under trademark law, the Fair Use Doctrine allows a party to use copyrighted material for certain purposes deemed beneficial to the public interest, such as criticism, news reporting, teaching and research.
Works in the public domain or that do not meet the requirements for copyright protection also may be used without permission.
When is privacy or publicity clearance required?
Many states, including California, have laws that prohibit public disclosure of private facts about an individual or protect a person from being portrayed in a way that would harm their character or reputation (defamation). As a result, for productions depicting real living or dead people, or fictitious characters that are too closely based on a real individual, clearance may be required. An attorney can help vet the story for potential privacy and defamation claims.
In addition, the right of privacy or publicity prohibits others from using a person’s name, image, likeness, voice and other aspects of an individual’s identity for commercial purposes without that person’s written consent. For film and television productions, it is important to obtain clearances from performers, and others who may be used in advertisements, commercials, merchandise and other trade uses.
When are music clearances needed?
If music is used in the film or television production, there are two types of licenses that may be needed. The first is a “master use license,” which allows the licensee to use a specific recording of a song. The artist or record label are likely the owners of the copyright and may provide the license to the producers under specific terms.
The second is a “synchronization license,” which permits use of the underlying music and lyrics of a song in a creative project. The synchronization license must be obtained from the owner of the composition of the music. Often, composers and songwriters license their rights to music publishers, so the license to use the work is typically obtained from the publisher. Publishers can be found by researching the databases of performing rights organizations such as ASCAP, BMI and SESAC.
What are the repercussions for not obtaining rights clearances?
Liability can arise under all the areas discussed above. Monetary and injunctive relief may be awarded for copyright infringement and trademark infringement. For trademark infringement, damages and injunctive relief may be awarded under federal law. Damages are also available in defamation cases and violations of the right of publicity.
In addition to legal costs, use of the production may be stopped or delayed, and the offending material may need to be removed, resulting in additional losses.
Intellectual property rights clearances should be addressed in the early steps of the production process. This ensures fewer disruptions and changes if permissions cannot be obtained or are simply too costly for the production budget. An experienced lawyer can secure appropriate permissions and review all aspects of the production and materials used to identify what rights are necessary.
Photo by Sam Moghadam Khamseh on Unsplash
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