Copyright clearances in Film
Author: Victoria Lockley Associate, Dorsey & Whitney
What is Copyright?
Copyright defines the ownership of an intangible piece of intellectual property in the same way that the deeds to a house define the ownership rights to that tangible asset. It is intended to protect the creators or owners of the rights in some creative piece of work by establishing precisely what they may do with those rights and preventing anyone else from using them in that way without permission from the copyright holder. Although copyright is a global concept, it is interpreted differently in different jurisdictions around the world. Great care must be taken to protect the interests of the copyright holder in every country where their creative content is being used.
Copyright in the film sector is particularly complex because of the many layers involved and the fact that there is no single creator of a film. Copyright exists in each of the following layers of a film:
Copyright is an unregistered right, which means that it arises automatically on the creation of the material, provided that: the material is original; recorded in a permanent form; originates from the author; and involves a substantial amount of independent skill and labour by the creator. The work does not, however, have to be new or imaginative or creative to be protected, provided that the other conditions described above apply. Copyright extends to the life of the author plus 70 years after their death. For a film, the period for copyright extends to 70 years after the death of the last to die of the writer, director, producer or composer.
Assignment of Rights
By law, the producer and the principal director of a film are joint first-owners of that film's copyright, although in practice the director will often assign his interest in the copyright to the production company or financiers. The producer must make sure that all underlying rights in the film, including in the screenplay itself, have been acquired by assignment before they will be able to raise finance for the film. Assignments of rights should be written down and signed by both parties (although technically they only have to be signed by the assignor) and should include rights to exploit the film (or underlying material) in every imaginable manner, including in ways that have not yet been invented at the time of the assignment.
Protecting Ideas
Creative ideas themselves cannot be protected by copyright, but any written expression of them can be protected by including a copyright notice stating who owns the expression of that idea and that the owner has reserved all rights to protect their ownership. The expression of general or common ideas cannot be protected - for example, no one could lay claim to the generic concept of battles in outer space. Similarly, character names cannot usually be copyrighted, although they can be registered as trade marks to distinguish them as a separate brand such as James Bond. Illustrations or original images of those characters can also be protected. Film titles are generally not eligible for copyright protection, but in limited circumstances they may qualify. And in any event, they most certainly do qualify for trade mark registration and may therefore be protected. Thus, before deciding on the name for a film, it is helpful for producers to run searches of the US Copyright Office (simply to ensure that no other similarly-titled films have been registered there) and the UK, US and European Trade Mark Offices.Search agencies or a law firm (such as Thomson & Thomson) can assist with such matters.
The Screenplay as a Literary Work
There are six fundamental rights in any underlying material that the producer must acquire before proceeding to develop the film. Financiers will expect to see that these rights are in place before considering providing any money to the film as they effectively determine the producer's right to exploit the work as a film. These rights are:
- to adapt the work in the form of a screenplay
- to reproduce the work in the form of a film
- to exhibit the work
- to broadcast the work or include it in a cable service programme
- to issue copies of the work in the form of a film to the public
- to rent or lend copies of the work in the form of a film to the public
When commissioning an original work, the producer will need to acquire similar rights but be aware of the agreement between PACT and the Writers' Guild which sets out standard terms for such contracts.
With either original or adapted works, the producer also needs to ensure that all ancillary rights are acquired. The main ancillary rights are:
- to adapt the work for television, radio or live performance on stage
- to publish the screenplay in the form of a book of the film
- to adapt the work in the form of a synopsis or treatment for promotional purposes
- to copy the work in the form of a remake, sequel or prequel to the film
- to produce a soundtrack album
- to use the copyright owner's name and likeness
- merchandising rights
Protection of Image Rights
The law regarding the protection of an individual's image is not as well developed in the UK as in the US. Where they do exist, image rights laws (or rights of publicity) generally establish an individual's right to control and benefit from the commercial use of their image. However, such rights are often limited by overriding rights of free speech and freedom of expression such that the protection is only available where the image is being exploited commercially rather than for purposes of artistic expression. Since films are both artistic and commercial endeavours, there is a significant amount of grey area here.
In the UK, claims against abuse of image rights would tend to be made under trade mark related laws, specifically the law of "passing off" - i.e. that the unauthorised use of a person's image implied their involvement or endorsement of some commercial endeavour.. In America, around 25 states have image rights/rights of publicity laws which offer varying degrees of protection from state to state.
Another possible relief against perceived abuse of image rights is the law of defamation, where the claim would be that the use of the image has lowered the estimation of that person in the eyes of a reasonable person or has caused them to be open to public ridicule. However, one cannot be defamed if the representation can be demonstrated to be true or fair comment or if the subject has consented to the representation by failing to take any action in response to similar circumstances in the past. Also, it is not possible to defame a dead person.
Personalities can also protect themselves from abuse of image rights by registering their names as a trade mark.
Performers' Rights and Moral Rights
Since 1996, UK law has determined that anyone who performs in a film has rights in their own performance, and consent must, therefore, be obtained from all performers that their performance may be used. These rights extend to 50 years after the year in which the performance occurred.
The UK, in keeping with the rest of Europe(but not the US) has also legislated to establish moral rights for authors of material, including films. This gives the author, or in the case of a film, the director, the moral right to claim ownership of the material and also conveys rights of integrity which allow them to insist that their work is not treated in a derogatory way (although this has yet to be tested in the UK). These moral rights are usually waived in the UK but cannot be waived in other parts of Europe, such as France. The European copyright directive which is soon to be incorporated into UK law may extend these moral rights to performers.
Other Copyright Issues
Music rights: music rights exist in the actual composition of a piece of music as well as in the form in which it has been produced and recorded. In addition, a separate copyright attaches to the lyrics of a song. It is important that all rights in all the music used in the film (even incidental background music) are cleared as early as possible.
Costumes, props and buildings: works of artistic craftsmanship (i.e. pottery, embroidery, jewellery, etc.) qualify for copyright protection if they satisfy an aesthetic threshold. . Other costumes and props don't qualify for copyright protection but may be covered by Design Right laws which arise automatically on the creation of the item. The person who commissioned the article is the first owner of this Design Right, which lasts for fifteen years from the year of creation.
Architectural designs for buildings are copyright protected, but images of the building itself can still be used without infringing this copyright.
Commercial products: the use of commercial products in films is generally covered by trade mark law, which protects a product's brand image and reputation in the marketplace. Often companies will work with film makers to place their goods in films, but products can also be used without permission provided that the film is not directly using that trade mark "as a trade mark" (i.e. in order to try and sell a product which is identical or similar to the trade marked product).
A product's logo may be protected by copyright, however, as a drawing. Thus, such a logo could only be used without permission if the use was deemed "incidental". In the US, the doctrine of Fair Use also means that it is possible to use a copyrighted logo (or any copyrighted material, for that matter) for the purposes of critique or parody.
Producers should take particular care when dealing with major brands. Large corporations will often pursue legal action against even the smallest perceived breaches of their copyright or trade mark rights, in order to ensure that they are not deemed to have "acquiesced" to such activity (and thus prevented from taking action against later, more serious, breaches.)
Top Tips
- Copyright defines the ownership of an intangible piece of intellectual property in the same way that the deeds to a house define the ownership rights to that tangible asset.
- Copyright law is intended to protect the creators or owners of the rights in some creative piece of work by establishing precisely what they may do with those rights and preventing anyone else from using them in that way without permission.
- Copyright in the film industry is particularly complex because of the many layers involved and the fact that there is no single creator of a film. Rights must be established and properly assigned in the artistic, dramatic, literary and musical elements of the film as well as in the actual footage that is created.
- The producer must ensure that they acquire all appropriate rights in the film and any originating material to enable them to distribute the film and benefit from any ancillary commercial opportunities.
