Reasoning of the Law

I believe that the answers I received were very straight forward and to the point. All of the answers were explained the way that they were in class and don't stray from what I read in the book. I believe that if i do what she told me I will be protected. Having the answers written down gives me a good reference point to go back to. I think she gave some sound advice. ”Anyone who uses copyrighted material without permission is violating the Copyright Act. To prove a violation, the plaintiff must present evidence that the work was original and that either: the infringer actually copied the work; or the infringer had access to the original and the two works are substantially similar.” Beatty, J. (2012)

1.            I've asked one of my friend's kids to act in my film and the parents have given permission. Do I need to get the license from my local authority?

In addition to securing a personal release from the child’s parent or legal guardian, you will need to ensure that the child has obtained an entertainment work permit through the state department of labor. The personal release should provide you all rights to use, edit and own all rights to the film. The work release requires an application to be completed by the parent or guardian and may require the parent or guardian to work with the school district to meet the educational obligations of the state during filming.

2.            My documentary doesn't show the contributors I filmed in a very favorable light. I have got all the contributor clearances but could they sue me for the way I presented them?

Technically, people can file a lawsuit (“sue you”) with or without a legitimate reason, so your objective as a filmmaker is to ensure all available legal protections are in place to protect yourself from any potential liability. That said, your best protection is to present all information truthfully and accurately because a claim of defamation requires the aggrieved party to prove the falsehood of the information presented. It is critical that you present the information within your documentary truthfully and accurately and maintain copious notes (and film clips, interviews, articles used for background research, etc) regarding the sources of your information in order to provide yourself the greatest protection against accusations of defamation.

3.              I've recently discovered that the name of my production company is also being used by an established feature film production company in the US. Is this a problem? What can I do about it?

In short, the answer is yes, this is a problem of trademark infringement. There are typically four issues to consider in trademark issues: whether the two companies are in the same industry, whether they overlap geographically, who was using the name first, and who registered the trademark first. Here, you and the competitor are clearly in the same industry and, as you described the other party as “established…in the US”, it is likely that your geographic markets will overlap. Your best bet is to select a different name for your production company and be sure to do your due diligence in ensuring it is original and available for your production company to use.

4.            A character in a film is reading a novel by a famous author. Do I need to get clearances for this?

Anything in your film not created entirely by you or part of the public domain will have to be accompanied by the appropriate clearances before your film may be copied, distributed or sold. This includes the script itself, any music, locations, products, contributors or logos that might appear or be used in making your film. In some cases, you may be able to find what you need through a Creative Common License, a system under which the artist retains copyright but allows use of his or her works as long as you give credit (some additional conditions may apply as well).

5.             I have used a brand logo in my film but have disguised it by calling the company a different name (a pun on their name). The design is otherwise identical though. Does this count as a breach of copyright?

If the faux logo simply appears in the background of your film, you will likely not encounter any trademark issues. However, if the brand is a plot point and/or disparages the actual brand in any way, you may run into issues of trademark infringement or libel.

6.            I made a film whilst at film school. It was not part of my course but I did use the school facilities. Does this mean they own the copyright?

Generally, the copyright is owned first by the author or creator of the product, but many film schools have established policies that provide the institution first copyright based on the use of the school’s resources. It is essential that you review your school’s policy on use of school resources and copyright before attempting to distribute your film.

7.            My film is loosely based upon a short story that I read. I've credited this in the film but I haven't purchased any adaptation rights. Do I need to?

Unless the story is in the public domain, you will likely need to obtain the rights to adapt the story for your commercial film.

8.             How can a filmmaker ensure her film doesn't end up being used without her permission, such as being posted by others on YouTube or screened at a festival without having applied?

Ensuring complete protection of your film is a nearly impossible task, especially with the opportunities for uploading and sharing over the internet…as evidenced by the struggle the music industry has had in controlling the distribution of their products. However, it is nevertheless essential that you take all precautions to protect your products, including registering trademarks and being vigilant when and if you do find unauthorized uses of your product. That is, be prepared to back up your copyright through the work of your Intellectual Property attorney as necessary.

9.               Music licensing is another big issue for a lot of filmmakers. Are there major differences between clearing archival rights for images and music rights?

Essentially, the process for obtaining rights to use music and images is quite similar – find the owner, ask for permission to use their product, get the permission in writing. However, it is often more difficult to track down the owner of a particular image, especially if you found it on the internet. However, once the actual owner of the image is found, it should be fairly easy to obtain permission (or discover that they won’t allow your use of their image). Finding the source of the music might be easier, but there may be a number of people/entities that have rights to the same piece of music. That is, you may have to obtain permission to use the music from the performer, the writer of both the lyrics and music, the producer, the musicians, and any number of other folks involved in the process who retain right to that particular piece of music.

10.          When it comes to archival material, many filmmakers use a combination of resources with some coming from professional sources with fixed rates and standard contracts (such as news archives or footage houses) and others from non-professional sources (such as home movies or photos from the characters in the film). Does a filmmaker need to clear those rights too? What kind of agreement is needed for non-professional sourced material?

Technically, there is no distinction in the copyright protection between “professional sources” and “non-professional sources” – you need the same permissions to use anything that you did not create yourself. While a “non-professional source” may be less likely to seek damages due to your use of their product, it is still in your best interest to obtain all permissions and clearances for every source used in your film. “For much of history, the copyright term was limited to 28 years. Now it is as long as 120 years.” Beatty, J. (2012)