Copyright on Action figures.

R

Redrapper

Member
So my film mainly takes place in an apartment. I've quite a lot of money on this thing, but I'm having trouble with the set right now, mainly because the character who owns the place is a comic book artist.

So my question arises: What's the deal with showing things like action figures and such in the background? As long as it's not the focus of the scene, is that okay? Or do I need to get permission to do so. Let's say I have a Spiderman action figure on his dresser, but we never really see the figure up close or anything, it's just in the background of his room. Or maybe there's an xbox in the corner. See what I mean?

I was told it's normally okay as long as it's not the focus of the scene.

Secondly... what are the stipulations for t shirt design. If I have my actor wearing a t-shirt showing Spike Spiegal from cowboy bebop, do I have to pay?

And lastly. Let's say I DO shoot the film with all these elements. Will I be able to enter these into film festivals? Or am I stuck with it until I can clear the rights to everything. I keep hearing about the fair use clause from what I've searched on the forums, but people seem to have different views on it.

Help?
 
Well, first, "fair use" isn't a right -- it's a defense against a claim of infringement. And it's primarily oriented towards news, teaching, or reviews. So you really wouldn't have any protection based upon the fair use doctrine.

However, what you're describing sounds pretty incidental, and I doubt anyone is going to care. I mean, if you are a big-budget film and you're using copyrighted posters and materials to dress your sets, that's one thing. If you're making a little personal film that may or may not ever make it into some festival exhibition, and all the uses of figures/etc are incidental, then it may still be an infringement but one in which nobody really cares. Sort of like going 72 in a 70mph zone -- that's a violation of the law, but it's extremely unlikely that any law enforcement officer is going to bother.

Some organizations are more open to "fan fiction" than others; Lucas even makes certain sound effects available for use in fan films. I had heard that Warner was going to be making some sort of policy or statement on fan fiction; they even set up a fan fiction section on the official Harry Potter forums on warnerbros.com. Now, what you're talking about isn't strictly "fan fiction"; fan fiction is taking and using the characters and settings of someone else's universe. You're just talking about incidental decorations.

I guess it comes down to how much you're leveraging off the other people's properties. Why do you want him to wear a specific Spike Spiegal shirt? Is it because using that character lends value to your story? If so, then that's not really an incidental use, is it? Incidental would be more likely a situation of that it doesn't really matter whether it's shown or not, whereas if it's important to the story or the character, then you are leveraging off someone else's property and that's not an incidental use.

If it's just stuff that's there and you pay it no mind and it has no bearing on the story, then that sounds about as complete a case of "incidental use" as anyone could come up with, and I'd think you'd find it pretty hard to get into trouble with anyone over a case like that. But if you're using specific stuff for a specific purpose, that's no longer incidental.

I'm not a lawyer, so take it for what it's worth.
 
Barry_Green said:
Well, first, "fair use" isn't a right -- it's a defense against a claim of infringement. And it's primarily oriented towards news, teaching, or reviews. So you really wouldn't have any protection based upon the fair use doctrine.

However, what you're describing sounds pretty incidental, and I doubt anyone is going to care. I mean, if you are a big-budget film and you're using copyrighted posters and materials to dress your sets, that's one thing. If you're making a little personal film that may or may not ever make it into some festival exhibition, and all the uses of figures/etc are incidental, then it may still be an infringement but one in which nobody really cares. Sort of like going 72 in a 70mph zone -- that's a violation of the law, but it's extremely unlikely that any law enforcement officer is going to bother.

Some organizations are more open to "fan fiction" than others; Lucas even makes certain sound effects available for use in fan films. I had heard that Warner was going to be making some sort of policy or statement on fan fiction; they even set up a fan fiction section on the official Harry Potter forums on warnerbros.com. Now, what you're talking about isn't strictly "fan fiction"; fan fiction is taking and using the characters and settings of someone else's universe. You're just talking about incidental decorations.

I guess it comes down to how much you're leveraging off the other people's properties. Why do you want him to wear a specific Spike Spiegal shirt? Is it because using that character lends value to your story? If so, then that's not really an incidental use, is it? Incidental would be more likely a situation of that it doesn't really matter whether it's shown or not, whereas if it's important to the story or the character, then you are leveraging off someone else's property and that's not an incidental use.

If it's just stuff that's there and you pay it no mind and it has no bearing on the story, then that sounds about as complete a case of "incidental use" as anyone could come up with, and I'd think you'd find it pretty hard to get into trouble with anyone over a case like that. But if you're using specific stuff for a specific purpose, that's no longer incidental.

I'm not a lawyer, so take it for what it's worth.
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Thanks Mr Green. For as long as I've been lurking about here, your advice has been a big help.

We don't really reference the spike shirt at all per se... but it's indicative of the main character's personality. So just to clarify... as long as we don't directly reference him having Spike on his T shirt, and it's not a major plot element, it would be fine if he was just incidentally wearing it? (Hypothetically speaking of course =))
 
I can't tell you what will be fine or not -- only a lawyer can do that.

All I'm saying is -- what you're describing doesn't really seem like it'd be the kind of thing that would go attracting lawyers. But if you got a lot of exposure for this and it started to become a big viral web thing, you might attract that attention.

I wouldn't purposefully put in anything that obviously intends to leverage off someone else's property. If the shirt is important to the project, try asking for permission.
 
Barry_Green said:
I can't tell you what will be fine or not -- only a lawyer can do that.

All I'm saying is -- what you're describing doesn't really seem like it'd be the kind of thing that would go attracting lawyers. But if you got a lot of exposure for this and it started to become a big viral web thing, you might attract that attention.

I wouldn't purposefully put in anything that obviously intends to leverage off someone else's property. If the shirt is important to the project, try asking for permission.
Click to expand...


Thank you sir. Much appreciated. =)
 
You might get away with it with incidental usage but definitely don't let it jump into the story too much or let it be a key element.

The problem with many of these things is there are often so many different people you need to get clearances from. For the action figures you need to clear it with the manufacturer as well as the person who owns the IP rights to that character. With the T-shirt, you might need to clear it with the manufacturer, the character's creator & the artist who drew/designed the picture on the shirt. Same goes for music - you need to clear it with the writer, performer and the record label/producer.

This is why many films will make up products, characters & companies (think 'Radioactive Man' and 'Krusty Burger' in the Simpsons). Of course this is an animated series so they wouldn't be using actual products/people but a 'likeness' is still enough to breach copyright laws. It's cheaper for producers to design & create their own characters and manufacture their own products/action figures/clothing etc than it is to get all the necassary copyright clearance on everything that appears in the film.
 
There's also trademark, not only copyright. A lot of it depends on what happens with the product in question. If the character wearing a "branded" shirt ends up opening fire on a bunch of innocent people in the story, then the trademark owners do start caring as it can reflect in their brand. Especially as Barry mentioned, your film starts getting more attention.

Michael
 
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