Posted on indieProducer
One of the most confusing (and frightening) areas for many beginner filmmakers is dealing with legal issues. The process of making a movie involves many contracts, legal forms, and in some unfortunate situations, lawsuits. So it’s very important to find a good lawyer to guide you through the entire process. In this section you will find some helpful legal tips, resources, and an assortment of standard documents for many situations you may encounter. But please note that nothing here is meant to act as actual legal advice. You should contact your lawyer before making any decisions, and communicate with the local unions and government offices for the latest information.
The Story
The source for story material comes to a producer in many forms: life stories, historical events, novels, short stories, plays, comic books, original screenplays, magazine articles, a verbal pitch or an idea.
What is Copyright?
Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to author of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. If the literary work is an original creation, then it is automatically protected under copyright law. Simply, you own a copyright in your work when you write it.
But what if your work is based on other material like a true story or book? In these instances you do not own the copyright in the underlying material, the work that existed before you began writing, but you do own copyright in your additions and creations.
There is only one exception to this rule: when you "write-for-hire." In this case, when you are hired to write a project the copyright in the material you produce is owned by the employer who hired you.
What is Infringement?
Copyright established ownership in a literary work, which provides the owner protection from unauthorized use of the copyright owner's material. If an owner's copyright is violated it is called infringement. Examples of infringement where the owner has the right to sue are unauthorized copying and adaptations of their work. They key to prove infringement is to establish similarity between the works and that the infringer had access to the work before they put pen to paper. The defense to any infringement suit of course is to prove the independent creation of the material.
You should be aware that it is customary to license song rights for movies. If an established song is quoted at length in your screenplay and is the basis for your script be sure to get permission.
Generally you should not plan on making someone else's song or material a key part of the screenplay you want to copyright.
Registration
The most common way to establish proof of creation is to register your work with the U.S. Copyright Office. Note: Registration is not necessary for copyright protection of original work but it helps to prove when the work was created. It follows that the earlier you register your work, the earlier you will establish creation. You can also accomplish the same goal by registering your with the Writers Guild of America (WGA). For a submission fee of $20.00 the WGA maintains a script registration service for members and non-members. For more information call the WGA at 323-782-4500.
The copyright registration is also very straightforward. Write to the Copyright Office, Library of Congress, Washington, DC, 20559 and request a PA Form. Complete the form and submit it along with a copy of the material you want to protect. For current information and fees visit their website atwww.copyright.gov or call 202-707-3000.
Notice is not required to establish copyright but it is valuable in letting others know that you own the copyright to your work. Notice consists of three things: the word "copyright" or ©, your name, and the year of first publication. Generally the copyright on a screenplay is placed on the title page. For example: © 2003 Connie Hsu.
Titles & Ideas
Titles are not protected by copyright. They're protected by common sense and an occurrence labeled "secondary meaning," that is when a title becomes established in the public mind. Don't name your screenplay using an already established title like "Braveheart." It's not illegal just an obvious rip-off.
Ideas are also not protected by copyright. Copyright protection covers the expression of an idea never the idea itself. The moral to this story is; be careful not to blurt out your idea at a party. Hollywood is unique however in this regard and has attempted to establish some laws to protect the theft of unique ideas. A letter of agreement may be established before the disclosure of an idea if it is made clear that the person will be paid if his idea is used.
The reality for a newcomer to the business though is that a producer doesn't want to agree to anything until they hear the idea.
Droit Morale
If a producer or studio is interested in purchasing your screenplay all American contracts require the author to waive his right of droit morale. Droit Morale ("moral right") is a European concept that limits the changes that the buyer can make to the author's work. Studios or production companies do not accept the concept of droit morale. They paid you for it so they can do anything to it. You, as the author have no choice. Following is an example of the moral rights close common in writer's agreements:
Owner hereby waives the benefit of any provision of law known as "droit morale" or any similar laws and agrees not to institute, support, maintain, or authorize any action or lawsuit on the ground that any motion picture or sound records, or other items produced hereunder in any way constitute an infringement of any Owner's "droit morale" or a defamation or mutilation of any part thereof, or contain unauthorized variations, alterations, modifications, changes, or translations.
Chain of Title
Studios will be hesitant to get involved in any project where there is doubt to the ownership of a script. Some writers and producers are known to "cloud" the chain of title by claiming similarity to their own written work or prior rights to a project casting doubt on ownership. The removal of this "cloud' usually requires making a deal with the person who has successfully been rewarded for throwing a wrench into the process. Studios want a clean chain of title establishing that the seller of a screenplay owns it. If the screenplay is based on a novel or short story, studios want to see proof that the owner of the screenplay has obtained the rights to the book.
The threat of possible infringement suits brought against producers is one reason why most production companies and studios will not accept unsolicited scripts. Most producers only accept screenplay submissions from agents. If a writer does not have representation he/she can still get their screenplay read by sending a query letter to a producer that gets them excited enough to contact you and request your script. Click here for FAQ's on query letters. By sending a signed release form along with your script they will read your script.
Material Based on Fact
There are many problems when writing about actual persons and real events. Although a dramatization based on real events and fictionalized true stories are protected by the First Amendment you have to be very careful that your depictions do not violate other people's rights. These violations include; defamation, right to privacy, right to privacy by depiction of an actual person in false light, and violation of a person's right of publicity. If your story injures someone's reputation, discloses facts not already know to the public, fictionalizes a recognizable character, or uses the name or likeness of a well know public figure consult a lawyer before you even think about writing it.
Novel Adaptations
Motion picture rights to a novel are normally retained by the author not the publishing company. It is the producer's job to find out who holds the motion picture rights to the novel. To ensure you are dealing with the actual owner of the rights you can search the records in the U.S. Copyright Office to determine if the novel has been registered and who without a doubt the owner is. To acquire the film rights contact the owner directly to negotiate a deal. If it's the author it is customary to contact their agent.
Since most producers have limited funds they usually attempt to obtain an option to purchase the motion picture rights. "An option is the exclusive right, for a specified period or time, to acquire the rights at a specified price." Options on books are generally longer than options on original screenplays because the producer needs to have more time to develop the property and have a screenplay written before being able to approach potential investors and distributors. The option agreement between the author and producer is called the "Literary Purchase Agreement." The option price for a novel or original screenplay can range anywhere from $500 for an unknown writer to 1 million for a well-known best-selling author. The initial payment is usually 5 to 10 percent against the full payment agreed upon if the option is exercised.
Unions
Most independent movie producers agree to enter into collective bargaining agreements with unions when producing their film. The unions use their collective bargaining power to establish rules and regulations for working conditions and most importantly minimum pay schedules for their members. The major unions that affect theatrical motion pictures are the Directors Guild of America (DGA), the Writers Guild of America (WGA), the Screen Actors Guild (SAG), the International Association of Theater and Stage Employees (IATSE) and the Teamsters.
Clearance Procedures
The Clearance Procedures provided below are intended to provide a general guideline to the steps which should be followed by the producer ("Filmmaker") of a film short. A 'cleared' film is a film that can be distributed, performed, copied, and otherwise exploited by Filmmaker (or its licensees/distributors) without infringing or violating, and without the likelihood of a claim of infringing or violating, some person or some entity's rights. Without proper clearance, a film is generally not distributable. Distributors will require the Filmmaker to make warranties as to the clearance of Filmmaker's Film for the rights Filmmaker grants to the distributor, and provide supporting documentation. Proper film clearance is an integral part of film production. It is advisable to spend time and money securing proper clearances for your film before you start shooting. It is usually easier and cheaper to spot and avoid problems up-front than to pay damages or be subject to the threat of an injunction after a problem occurs and a Film is already in distribution.
The procedures listed here are of course not exhaustive and do not cover all of the situations that may arise in connection with any particular Film. Rather than guess about how to handle a particular problem, or what to do if one of the procedures listed below doesn't quite seem to fit your project, the Filmmaker should consult his or her own attorney.
In General
The Filmmaker should continually monitor the Film at all stages,from inception through final cut, with the objective of eliminating material that could give rise to a claim. The Filmmaker is strongly advised to engage the services of an attorney experienced in clearance procedures, to work closely with Filmmaker in the implementation of these procedures. If the film is to be covered by Errors and Omissions ("E&O") insurance, the insurance carrier will generally require that an attorney be retained for this purpose.
If the intent is to exploit the Film over the internet, or on videotapes, videocassettes, videodiscs or other new technology, the rights to manufacture, distribute and release the Film using these mediums should be obtained from the writers, director, actors, musicians, composers and others involved, including proprietors of underlying materials. It is also important for the Filmmaker to be aware of any guild obligations if using union members in your film. Guild agreements contain a number of provisions that the Filmmaker will be bound by to (e.g., minimum compensation requirements, crediting requirements, recognition of certain creative rights, work hour restrictions). Guild agreements also contain provisions that future distributors will be bound by (e.g., residual/reuse fees, supplemental market payments, limitations on the right to use clips, etc.).
Avoid Litigation. Consideration should be given to the likelihood of any claim. Is there a potential claimant portrayed in the Film who has sued before or is likely to sue again? Is there a questionable copyright or other legal issue? Is the subject matter of the Film such as to require difficult and extensive discovery in the event of necessity to defend? Are sources reliable? Before relying on using a work or part of a work because of "fair use" or "public domain" the Filmmaker should consult an experienced attorney to ascertain whether these concepts truly apply. The Filmmaker should use this information to take all reasonable steps to avoid any possibility of a claim.
Prior to Filming
Script Clearance. The script should be read and thoroughly reviewed prior to commencement of the Film to eliminate potential infringement threats in regard to;
1. Portraying a particular individual or a small or moderate size group of real individuals (e.g. living or dead), or an existing business or other entity, in an arguably light they may cause injury to their reputation, and 2. Offensive, or revelatory facts about that individual or group not generally known by the public. Where the Film is fictional in whole or in part, the names of all characters shall be fictional. It is important to submit the script to a script clearance company, as discussed in the next paragraph, to avoid inadvertently using a real person's name as the name of your fictional characters. The script writer should be interviewed concerning his characters to insure that he/she has avoided including characters who are clearly identifiable with living people. For example, if the story's main character is clearly identifiable as the author's mother through either dress, personality characteristics or situations, and she feels she has been represented in a negative light that damages her reputation, she has grounds to sue the film for defamation even if the character's name has been changed.
The Filmmaker is advised to i) submit what the Filmmaker intends to be the final version of the script to a reputable script clearance company and (ii) follow the recommendations of the clearance company and make any suggested changes to the script. Further, the Filmmaker should submit this report to the Filmmaker's attorney for analysis and then follow the recommendations, if any, of the attorney.
Some clearance companies include: Premiere Script Research: (626) 798-1920 Act 1 Script Research: (818) 240-2418 Joan Pearce Research: (323) 655-5464 Marshall Plumb Research: (818) 848-7071
Unless the Film is an unpublished original not based on any other work, prior to the commencement of filming, a copyright report should be obtained from a recognized service for all underlying works. Both domestic and foreign copyrights and renewal rights should be checked for all underlying works.
Some companies that can provide copyright reports are: Thomson & Thomson: (800) 356-8630. Dennis Angel: (914) 472-0820
If the Film involves actual events, the script-writer should deliver a fully annotated script to Filmmaker's counsel for review along with copies of all source material (e.g. newspaper reports, books, articles, court transcripts, interviews with witnesses, etc.).
The origins of the Film and the artistic/animated element in the Film should be ascertained - basic idea, sequence of events and characters, and, if applicable, animation elements, for the purpose, among others, of avoiding copyright and idea submission claims. It should be ascertained if submissions of any similar properties have been received by the Filmmaker or anyone else involved in the production and, if so, Filmmaker must be able to show the circumstances as to why the submitting party may not claim theft or infringement.
The Filmmaker should consider registering the script with the Writers Guild of America. For more information go to www.wga.org
Talent and Other Agreements. Written agreements must exist between the Filmmaker and all creators, authors, writers, composers, performers and any other persons providing material (including quotations from copyrighted works) or on-screen services. If Filmmaker does not have such an agreement, Filmmaker should contact its legal counsel.
Title Selection. Prior to final title selection, a title report should be obtained from a recognized service to ensure that the proposed title is clear to use. Some companies that provide title reports are: Thomson & Thomson: (800) 356-8630 Dennis Angel: (914) 472-0820.
Publicity/Privacy Releases from All Individuals. Whether the Film is fictional or factual, it should be made certain that no names, faces, likenesses, or other indicia of identity of any recognizable living persons are used are depicted unless written releases have been obtained. A release is unnecessary if a person is part of a crowd scene or shown in a fleeting background. Dead persons (through their personal representatives or heirs) may have a "right of publicity" claim under certain circumstances (particularly involving commercial exploitation outside of the Film itself). Furthermore the family and/or successors of deceased persons may under the laws of certain foreign jurisdictions have the right to bring actions akin to defamation. Clearances should be obtained for the right to portray deceased persons unless the Filmmaker's counsel has concluded that the law clearly does not require such releases.
Trademark/Product and Business Releases. The same principle is generally applicable to the names, logos and other indicia of identity of business and other entities. Telephone books or other sources should be checked when necessary, to identify if any real businesses and/or individuals have the same name as the fictional business and individuals in the Film (and, if so, those names should be changed).
Releases in General. All releases must give the Filmmaker the right to edit, add to and/or delete material, juxtapose any part of the Film with any other film or work, change the sequence of events that the Filmmaker deems appropriate. Releases should include an express waiver of defamation, libel and waiver of privacy claims. If a minor gives consent, the Filmmaker and its counsel must be able to verify and confirm that the consent is legally binding on the minor, or secure an appropriate parental guarantee after determining that the guaranteeing parent[s] is/are clearly credit worthy.
Music. If music is used, the Filmmaker must obtain all necessary synchronization and public performance licenses from copyright proprietors of music and lyrics. Licenses must also be obtained on pre-recorded music from the owner of the master as well as from the copyright proprietors of the music and lyrics. Music is complicated. These rights are often owned or controlled by different entities (such as a publishing company and a record company).
• A license to incorporate a composition into a film is known as a "synch" license. • A license to use a particular sound recording is known as a "master use" license. • A license to a composition does not include a license to a sound recording of it, and vice versa.
Depending on the terms of any agreement Filmmaker signs with IndieProducer LLC, Filmmaker will need the appropriate music rights. The Filmmaker is strongly encouraged to obtain all such rights as early as possible, and before Filmmaker incorporates any music in the Film. The Filmmaker should assume obtaining rights to music from established bands will be complex and expensive. The Filmmaker should consider working with unsigned bands and/or music stock sources that provide music and licenses. All agreements need to be closely reviewed by Filmmaker counsel to ensure the proper rights are being granted. Filmmaker should also consider an inexpensive back up if Filmmaker cannot obtain the rights to the music desired.
Some stock music companies include: Killer Tracks: (800) 877-0078 License Music: (415) 543-2470 OGM Production Music: (800) 421-4163 Creative Support Serv.: (800) HOT-MUSIC Megatrax Prod. Music: (888) MEGA-555
Some music clearance companies include: Total Clearance: (415) 389-1531 Clearance Consultants: (310) 441-2600 The Permissions Group: (847) 635-6550 Diane PrenticeClearance: (818) 830-1270
Some composers/musicians include: Matt Messina: (310) 650-6288 Jewlia Eisenberg: jewlia@earthlink.net
Location Releases. If distinctive locations, buildings, businesses, personal property or products are filmed, written releases should be secured. This is not necessary if non-distinctive background use only is made of real property, provided the filming is from a publicly owned area or an area on which the Filmmaker has the right to be. If Filmmaker's counsel has concluded that the law clearly does not require such releases, the Filmmaker must be able to provide written support for such conclusion.
Material Used On Set. If in the set dressing (including, without limitation, any props, no matter how inconsequential) or in any other manner, pre-existing material is used which may be protected by copyright, such as paintings, photographs, art objects, articles, book covers, magazines, newspapers, and even items of décor such as wallpaper (and the list could go on for pages) the written consent of the copyright proprietor of any such material must be secured. Note that the permission of the owner of the original or of a duplicate of the physical material is not sufficient. Thus a release to film in a particular location is not sufficient to cover the use of any artwork which may be present in that location - the permission of the copyright proprietor of that artwork is mandatory. Sometimes the "fair use" defense will apply, however Filmmaker should never rely on this limited defense without consulting an experienced attorney.
Shooting Script. Shooting script should be checked to assure compliance with all of the above. Since during actual production individuals, dialogue, and/or other matters may be added which were not originally contemplated in the shooting script, checking procedures should be followed until the Film is locked.
Film and Audio Clips. Film and audio clips are dangerous unless licenses and authorizations for the second use are obtained from not only from the owner of the clip or party authorized to license the same, but also from all persons rendering services on, or supplying material contained in, the film clip; e.g., underlying literary rights, performances of actors or musicians. Special attention should be paid to music rights as publishers are taking the position that new synchronization and performance licenses are required when clips are used. In addition, use of clips often implicates re-use and residual payment obligations to guilds and unions.
If you cannot obtain a release for one of the items listed above, we strongly suggest that you DO NOT USE THE ITEM IN CONNECTION WITH YOUR FILM. There are many other substitutes available. If your film is not cleared, it will greatly decrease the likelihood that you will obtain distribution for your film. Ever.
Copyright Registration. Filmmaker should register his or her Film with the US Copyright Office using form PA. The script can and should also be separately registered. Go to http://lcweb.loc.gov/copyright.
Chain of Title Recordation. Filmmaker should record with the US Copyright Office any documents evidencing any change in ownership from the original author of the Film to the finished Film to be licensed by Filmmaker.
For example, assume Bob wrote the script and the film was produced by a partnership made up of Bob and Mary. Chain of title in the film would be shown by (1) a certificate of authorship signed by Bob indicating that the script is original, written by Bob, and that no rights have previously been granted, (2) a copyright certificate in Bob's name for the script, (3) an assignment or other written transfer of the right to make a film based on the script from Bob to the partnership, and (4) a copyright certificate for the film registered in the name of the partnership. This may seem like a hassle, but it is typically required for any television or theatrical distribution.
Insurance. Filmmakers should seriously consider obtaining E&O insurance since they will remain liable for any claims that arise. E&O insurance is meant to protect the insured (i.e. the Filmmaker) from third parties claims that arise in connection with the Film, such as violations of publicity/privacy rights or copyrights. In addition to the information above and advice from Filmmaker's own attorney, there are several books that may provide further assistance, including "Clearance & Copyright: Everything the Independent Filmmaker Needs to Know" by Michael C. Donald (Silman-James Press) and "Getting Permission: How to License and Clear Copyrighted Materials Online & Off" by Richard Stim (Nolo Press).
No comments:
Post a Comment