COPYRIGHTS, CLEARANCES & RELEASES
Public screening of your project requires that it be cleared so that you do not have to defend yourself from lawsuits brought by injured parties. In brief, you must have permission to use what belongs to someone else – that is – their likeness, their personal property and their intellectual property (I.P.).
THE FAIR USE ACT
There is a great deal of misunderstanding about the Fair Use Act. Essentially, it provides for a small portion of a copyrighted work to be used for teaching, criticism, or news without the permission of the copyright holder.
If you choose not to obtain all the necessary clearances, waivers, rights and permissions – your project should be limited to “classroom” screenings only. If you don’t obtain clearances you run the risk of having your project declined for film festivals and other public venues as well as opening yourself up to lawsuits.
This guide is intended to give you a general idea of what is needed in the way of clearances. It is not intended to be comprehensive nor should it be construed as legal advice.
LOGOS, BRANDNAMES, AND TRADEMARKS
When distinctive personal property that is identifiable with any person or entity (a logo like the Nike “swoosh” or a trademark such as Coca-Cola) is filmed in a scene, you may need consent in writing to use such property.
Most importantly, you may not photograph any trademark or logo that presents a company or entity represented, or its product, in a detrimental or defamatory way. To do so would expose you to a lawsuit for slander and/or libel.
If the property is non-distinctive background and your shot doesn’t linger on it you do not need permission to film it. For example, if you are filming in a bar or grocery store, keeping your shots wide enough to include many products and not focusing on one, permission will not be needed.
If you choose, as many productions do, to use fictitious products there are several props houses that have cleared material (labels, posters, signs, etc.) available to rent or sell. If you provide these companies with original artwork and text, they can also manufacture props and set dressing (food packages, posters, magazines, etc.).
There must be written consent from authors, creators and writers of all material – including quotations from copyrighted works used in the production – authorizing the use of that material. As of this date, copyright protection extends for the life of the artist - or copyright holder - plus 70 years. In the case of copyrights owned by corporations, the protection lasts for 95 years.
For more information go to: https://www.copyright.gov/circs/
We recommend that you avoid using copyrighted material.
Whenever possible, consider using fictitious names, companies and products to avoid problems. If you need to use actual names, artwork and/or products here are the steps toward achieving clearance:
Determine if your script includes any copyrighted material or references.
Determine who holds the rights to the material or whether the material is in the “public domain.”
obtain permission or “clearance” to use the material not in the public domain.
CHARACTER NAMES, ADDRESSES, PHONE NUMBERS, LICENSE PLATES, GRAVESTONES
Where the work is fictional, in part or in whole, the names of all characters must be fictional. There are obviously very many people named John Smith, but you have to make sure there is no one named John Smith, who matches your character in age, ethnicity, address, occupation, etc.
You cannot use real phone numbers or addresses in your fictional work. That would be considered an invasion of privacy. The telephone numbers 555-0100 to 555-0199 will never be assigned to any individual or business and are often used in films and television. Prop houses have phony licenses plates for rent so no one can claim you used their license without permission.
FILMCLIPS, TAPES, ARTWORK AND STILL PHOTOS
If you plan to use any film, television, Internet clips, you must obtain permission from the owner. If the clip is from a professionally produced company, you may have to obtain permission from any professional guilds and/or unions (Writer’s Guild of America, the Screen Actors Guild, the Director’s Guild of America or the American Federation of Musicians.) Be aware that there is often a charge for these releases.
Clearances of clips with music can be even more lengthy and complex – as well as more expensive. If the clip is from a home movie or other non-commercial production, it is necessary to get permission from the people who appear in the clip as well as the person who shot the footage.
To use a photograph, you need the permission of the copyright holder and a release from the person(s) in the photo as well as the photographer. This includes family photos.
Getty Images is one of the largest and a very good source of photographic images. In some cases, there is no charge. There are many other services as well.
Tattoos are considered artwork and as such, need to be cleared by artist. If the actual tattoo image is a copyrighted image, that will need additional clearance. Cleared tattoos can be purchased from several make up companies.
Here’s one of the largest: Tinsley Transfers https://tinsleytransfers.com/
You need people’s written permission to use their likeness (that is, their face) in your film if they are recognizable on screen. However, if you are shooting a crowd scene and if you do not focus on any one person or show their image for more than a second or two, then you do not need their permission.
It may also help to post wide area release signs around your location like the following:
By entering and by your presence here, you consent to be photographed, filmed and/or otherwise recorded. Your entry constitutes your consent to such photography, filming and/or recording and to any use, in any and all media, of your appearance, for any purpose whatsoever in connection with the production presently titled: ________________________. You understand that all photography, filming and/or recording will be done in reliance on this consent given by you by entering this area. If you do not agree to the foregoing, please do not enter this area.
A sign like this does not absolve you from the responsibility to get the proper releases, but it may prevent some unpleasantness with the citizenry. People who would rather not appear in your film have the opportunity to avoid the camera. It is advisable to take photos of your posted signs for proof later on if the need should arise.
The general principles of law would allow you to film anything visible to the general public so long as you do not defame or disparage it. If you are filming on a city sidewalk with a valid Filming Permit you don’t have to worry about signage in the background. However, if you have your actors go into a real place of business you will need a Location Agreement.
ALWAYS get a Location Agreement. No location is secured until you have written authorization. The Location Agreement must be signed by the property owner.