Documentary Copyright and Trademark Question

H

Hand Crank Media

Member
I am about to start on a documentary and I have some copyright questions that are unique to this project because of the subject matter. The doc will be about how a school drama class affects special-needs students (in a positive way).

The play the class is working on is called Captain Louis. Would I be infringing trademark if the name "Captain Louis" is mentioned in the film? Would a couple lines of dialogue from the play being rehearsed between kids also cause copyright problems or could that be considered fair use?

While the specific play is not as important to the message and presentation of the film as the drama class itself and it's affect on the special-needs kids, if I'm not able to mention the name of the play nor include live audio of the kids rehearsing, it will be a bit constricting.

Any insight you guys can offer will be much appreciated.
 
I'm not a lawyer, but the classes I teach include units on copyright for student media producers, and I call in attorneys to guest lecture every semester that know something about this stuff. But do seek real legal advice if you're at all worried (maybe the school has someone who can help).

Mentioning the title and author of the play and including very brief (under 30 seconds for sure, more safely, 10) clips of scenes would almost certainly fall in the same category as a review or summary of the play in the media and would be considered fair use. The fact that it's for educational purposes also counts in your favor. (One must always use weasel words like "may" and "probably," though, since the legality of any particular case cannot be established except by taking it to a real trial, which nobody wants to happen!) What you absolutely need to avoid is using extended sequences from the performance itself, which would give away any essential plot points from the play or elements like music, etc. From what you say I don't think that's what you intend to do, and the specific work they're doing isn't really a critical part of the story you're trying to tell. As long as you focus on the kids, the teachers and their interactions with each other in the context of working on the show, I doubt there would be any problem.

- Greg
 
"Educational Use" most likely wouldn't apply here as it has a much more narrow definition than commonly believed. It does not mean any and all uses by a school or educational institution. The Fair Use defense of the copy having been made for educational use means that the copy is being used solely for in-classroom instruction in an accredited school in grades K-12 or in an accredited degree-granting college or university. In other words, a high-school biology teacher can freely photocopy a copyrighted illustration of a dissected frog to hand out to his students under the doctrine of Fair Use for educational purposes. But a public relations documentary ABOUT the school's biology programs would be infringing if it included that illustration since that would not be considered use of the copy for in-classroom instruction.

AFAIK it is not a copyright infringment to mention the name of a work in conversation. But clips of the students rehearsals or of a performance might be as it is common practice for licenses granted to schools by a play's publisher to specifically prohibit ANY videotaping or recording. I think it would be a stretch to say such uses would be for "criticism and review."
 
I know as a matter of fact that there are certain "names" that you can't mention without causing a copyright/trademark infringement, unless you are legally granted the permission in writing. So I think to be on the safe side you'll need to seek legal advice. To start with, why don't you just contact the legal owner for a one-time use permission?
 
henryqiu said:
I know as a matter of fact that there are certain "names" that you can't mention without causing a copyright/trademark infringement, unless you are legally granted the permission in writing. So I think to be on the safe side you'll need to seek legal advice. To start with, why don't you just contact the legal owner for a one-time use permission?
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Copyright issues and trademark issues are two different kettles of fish. A play's title is a trademark and not covered by copyright. Usage of trademarks hinges on whether the viewer is likely to get confused. To advertise your film as being "My Fair Lady" is a violation of the trademark. But having a character say to another "I saw 'My Fair Lady' last night." is not.
 
Assuming the tone of the video is reasonably positive and casts (pun intended) the play in a good light, I think the publisher might be more than willing to cut you a deal on use of scenes from rehearsals (finished live performances, probably not so much). It's polite to inform them and ask in any case.

Steve is right about titles and trademarks. And unless a title has actually been registered with the USPO as a trademark, they can't claim infringement.

- Greg
 
Thank you all for your insight, I appreciate it. I am going to contact the publisher to see what they will allow. Thanks everyone, I'll let you know how it goes.
 
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