ENTERTAINMENT LAW

FOR MOVIE MAKERS

The Got Movie Meetup

June 24, 2015

MOVIE MAKING

�Movie making is a combination of:

• Creativity and art

• Personal and business rights

�Many laws, rules and regulations apply

MOVIE MAKING AND THE LAW

� Important legal areas for Movie Makers

• Copyrights & Trademarks

• Permissions & Clearances

• Business Entity protections

COPYRIGHTS

� Copyright protection is under Federal, not State, law

� Copyright Office website at www.copyright.gov

� Copyrights protect artistic expressions but not ideas

� Warning: things found in movies such as props, video clips,

music, sounds, pictures, magazine covers and many other items

may be subject to third party copyrights and/or trademarks

WHO OWNS A COPYRIGHT?

� THE CREATOR(S): Absent an agreement to the contrary, the

creator(s) are the owners of the copyright in the work.

OR

� THE EMPLOYER: Works made for hire (17 USC 101)

(a) a work prepared by an employee within the scope of his or her employment; or

(b) a work specially ordered or commissioned for use … (2) as a part of a motion picture or other audiovisual work, if the parties expressly agree in writing that it is a work made for hire.

DERIVATIVE WORKS

� Right to exclude all others from creating works based on

copyrighted original work

� Protects authors from having movies made without permission of

author

� Protects against unauthorized sequels

PERFORMANCE RIGHTS

� Right to exclude all others from publicly performing a work

without permission

• Applies to literary, musical, dramatic, pantomime, choreographic,

movies, & other audiovisual works.

• Except for purely pictorial works and sound recordings, includes all

copyrightable works

� Exclusion of sound recordings is important

• Performers have no rights to royalties, but composers of original

work may have rights

EXCEPTIONS TO COPYRIGHT

� Fair Use – the largest area of exceptions

� Right of use for promotion

• A store can play selections to promote sales

� Right to make copy to maintain or repair it, or to serve as an

archival backup

INFRINGEMENT OF COPYRIGHT

� Substantial similarity test

� If copying not admitted, it can be inferred by access to the

copyrighted work

� Liability has been found with

• Innocent infringement (not knowing the work was copyrighted)

• Unconscious infringement (not being consciously aware of the prior

work)

TYPES OF INFRINGEMENT

� Direct Infringement – violation of at least one of rights protected

by copyright

� Contributory Infringement – inducing, causing, or materially

contributing to the infringing conduct of another person

� Vicarious Infringement – right to control infringer acts and

receives benefit from acts

COPYRIGHTING YOUR OWN WORK

� Copyright is automatic when your work is fixed in a copy for the

first time

� Copyright notice is optional. If used, be sure to use it properly

� © 2015 Filmmaker

� More information at www.copyright.gov

TRADEMARKS

� Trademarks are identifiers of the source of a product or service.

For example, Coca Cola ® for carbonated drinks or Kleenex® for

facial tissues.

� Use or placement of third party trademarks (e.g. in a film) can be

an infringement of their trademark rights

� Movie titles are not usually subject to trademark protection unless

part of a series or having acquired distinctiveness in the marketplace

PERMISSIONS AND CLEARANCES

� Logos, brand names and trademarks

� Copyrighted materials

� Films, tapes, artwork and still photos

� Music

� Likenesses

� Character names, addresses, phone numbers, license plates

� Locations

LOGOS, BRAND NAMES, TRADEMARKS

� Distinctive personal property identifiable with a person or entity

may require consent to be used in a film (products, pictures,

magazines, etc.)

� Using in a defamatory fashion may result in a slander/libel action

� If non-distinctive background use in a public area may not need

permission

� Consider a prop house or other source of cleared materials

COPYRIGHTED MATERIALS

� Try to avoid using copyrighted works of others.

� Use fictitious names, companies, products in your works of fiction

� Get written consent (license or release) from authors, creators and

writers of all materials used in the film

� Includes copyrighted works (e.g. quotations, pictures, etc.) within

copyrighted works

FILM CLIPS, ARTWORK, PHOTOS

� Need permission of company that owns or licenses the work. Note:

ownership can change over time.

� Multiple levels of releases may be required (e.g. WGA, SGA, Director’s

Guild, American Federation of Musicians, etc.)

� Clearances of clips including music even more complex.

� Photos may need a clearance from the copyright owner and persons

appearing in the photo.

� Consider stock footage (many providers)

MUSIC

� Original music, scored for the film, is the safest.

� Prerecorded/published music need

• Publisher clearances

• Synchronization rights

• Performance rights

• Record company clearances

• To get a Master Use license

• Permission from the performers or third parties

LIKENESSES

� Personality rights

• Right of publicity• Right of privacy

� General rule: you need written permission to use a person’s likeness in

your film

� Public crowd scenes an exception

• Don’t focus on specific people• Don’t leave the camera on someone for more than a second or two

• Hold up a sign disclosing that a film is being made

CHARACTER NAMES, ADDRESSES, …

� Where the work is fictional, the names of the characters should be

fictional.

� Don’t use real phone numbers or addresses in fictional works.

� Prop houses have phony license plates, etc. for rent.

LOCATIONS

� General rule: you can film anything viewable by the general public

as long as you do not disparage or defame.

� Written location releases needed for private areas (e.g. in buildings,

on private land, etc.)

� Filming permits

• City (e.g. LA) gives permission to film in that city

• State of California if using gov’t employees

LEGAL ENTITY PROTECTIONS

� Individual (sole proprietor)

� Partnership

• General

• Limited Liability

� Limited Liability Company (LLC)

� Corporation

• C corp.

• S corp.