A question for the Lawyers

[-zach-]

A couple months ago I read an article about "Intellectual Property in the Digital Age," and had a few questions on what they said in the article. Looking back, I have several questions to ask, but I'm not going to put them all in this thread so we don't confuse the topic.

In the article there's a frame of Strangers with Candy, and the caption says:

Paul Dinello's Strangers With Candy (2006), starring Stephen Colbert and Amy Sedaris, was acquired for $3 million at the 2005 Sundance Film Festival. The moviemakers were then forced to return the money when they could not produce the necessary releases for props and set dressings.

I don't even know where to begin. I'm lost. What does it mean "necessary releases". The permission from the sets? This confuses me. If anyone can explain what they're talking about here it would be greatly appreciated.

 

[David Jimerson]

Don't know specifically what they're talking about, but there could easily be copyrighted or trademarked items visible in the scenes for which they would need releases or other sufficient legal clearances. Like a prominent photo of you, for example. They'd need your permission to use your image, and possibly the permission of whoever took the photo, because that might person might hold the copyright.

 

[-zach-]

Does this mean that they might have needed permission from the set dressers and a prop such as Coke or something?

Or would "sets" include something like a location being the Empire State building?

 

[bosindy]

A filmmaker upon getting a disty deals has to show he/she has "good title" to the film. There is a number of ways you can run afoul of having good title, in this case the area of clearance law is called the Right of Public Display.

Typically the major issues are with posters, paintings, sculptures and photos and you must get clearance to use them. A notable example where a movie got into trouble was "Devil's Advocate" where Pacinio gives the speeck at the end and the sculpture comes to life. The artist who made it was a devout catholic and sued. He got an injunction and all copies of the film have the scene altered.

One of the definitive cases involves the pattern/pic on a bedspread, so you can't be too careful. Much of the law revolves around how long the item appears on screen and whether showing the item was as intended by the manufacturer

Unfortunately, cases are still clarifying the law so if you are using any of the above be careful. Even if you can win, low budget disty's won't risk provoking litigation.

 

[bosindy]

Does this mean that they might have needed permission from the set dressers and a prop such as Coke or something?

Or would "sets" include something like a location being the Empire State building?

You can use a product, such as coke, as long as it is in line with its intended purpose. Be careful not to shoot the product in a negative light. If you do, you may be committing trade libel. don't do that. Drinking Coke is okay, caffeinated junkie who has gained 20lbs from the sugar, not so much.

You do not need the permission of the architect or owner of a building as long as you shoot it as it normally appears from a public place.

 

[ugafan]

You can use a product, such as coke, as long as it is in line with its intended purpose. Be careful not to shoot the product in a negative light. If you do, you may be committing trade libel.

what about talking about famous people or shows. like having a conversation about tom cruise being nuts or how a show isn't very good.

 

[bosindy]

what about talking about famous people or shows. like having a conversation about tom cruise being nuts or how a show isn't very good.

No one making low budget films wants to invite litigation, having said that, you want to worry in this case that you are not defaming anyone. Defamation is the publication of something that is false that is injurious to another.

General rule without going into the minutia. If it's the truth, opinion, or satire/humor, you are okay. There are looser standards for people in public life.

 

[-zach-]

I think this is a good discussion. We should keep this going so the people that post during the day can see it.

I have another question:

What if you've got your characters talking about movies? Saying the titles?

or

If you've got your characters describing a specific moment in the movie such as
"and then when it's moonlight, you can see the true forms of the pirates - they are undead"

 

[bosindy]

I think this is a good discussion. We should keep this going so the people that post during the day can see it.

I have another question:

What if you've got your characters talking about movies? Saying the titles?

or

If you've got your characters describing a specific moment in the movie such as
"and then when it's moonlight, you can see the true forms of the pirates - they are undead"

Copyright (the right to copy) is attached to the work. You couldn't use a clip of the film (in most cases) but you could talk about it under protection of "fair use". That is, if you are in fact infringing on the copyright and need to use it as a defense. A simple conversation about a film may not be "copying" anything.

EDIT -
Section 107, Copyright Act of 1976: "Fair use of a copyrighted work ... for the purposes such as criticism, comment, news reporting, teaching .. scholarship, or research, is not infringement of copyright." There are limits to fair use, and it is a shield not a sword, but a conversation about a film, in most cases, would be protected under this it reaches the level of infingrment. Fair use is even more relevent in documentaries where the actual work may be needed to comment.

Check out "Clearance and Copyright" by Michael C Donaldson, 2nd ed. They used this book when I was in law school in the entertainment class and it is very thorough.

 

[-zach-]

Check out "Clearance and Copyright" by Michael C Donaldson, 2nd ed. They used this book when I was in law school in the entertainment class and it is very thorough.

Thanks!

I've got one more question that probably falls under what was said in the above post.

The same rules for movies probably apply here, but what if I were to show two characters playing a videogame? I'd want to show the screen, if it were something like Madden or Gears of War, I'd have to get the studio's permission, correct?

Would this include just showing them playing, and having the sound effects?

 

[bosindy]

if you use anything, pic, sound, art on the cover of the game, you need to get clearance. It has creative content you are featuring in your film that is copyright protected and it would not fall under fair use exceptions.