FAIR USE IN FEATURE-LENGTH FICTIONAL FILMS
Hi everyone, my name is Justin Sterling. I am an Attorney and Founder of The Sterling Firm. We are answering the question: Is it possible to use other people’s work without permission in your feature-length film? The answer is that it depends on the circumstances. Under the doctrine of Fair Use, there are factors that determine that a copyrighted work can be used in your film without the copyright owner’s permission and therefore without having to pay a license fee.
Fair Use refers to the circumstances that must be present for a creator to be able to use another’s copyrighted work without permission pursuant to Section 107 of the Copyright Act, which states the factors to be considered as:
(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work.
Many times feature-length films use others’ copyrighted work. For example, filmmakers will integrate historical footage with live-action sequences so that the film appears to be realistic, as if it were taken place during that particular time period. Also, film clips may be integrated through the use of a blue-screen projection so that it appears the action is taken place as if they were in fact there. Studios tend to license everything they use, including the historical footage. Studios tend to be extremely safe in this regard.
FILM FOOTAGE AND CLIPS
It is very complicated when a filmmaker wants to use another’s film or television clip in their project. Written permission is required by the copyright owner of the film clip, unless the material falls under the Fair Use doctrine or is considered public domain. The owner of the copyright is many times a studio or a television network. Fortunately, there are companies that maintain large-stock footage to license. These include: Getty Images, Film & Video Stock Shots, Paramount Stock Footage Library, and Twentieth Century Fox Film Library. In many other cases, it is difficult to determine who the rightful copyright owner is of the clip. Movie and television clips have often times been sold to various distributors who then now own the copyright pursuant to the distribution agreement. It is important to make sure that the copyright owner that you are attempting to obtain the rights from has the licensing rights throughout the world and is not restricted to a particular territory.
Other issues in the clip footage includes obtaining the synchronization and public performance license from the publisher of any music that is in the clip, or the master license from the record company if the music is from a record album, in addition to payments to the American Federation of Musicians (AFM). It is best to edit out any music, so that the process of using a clip is easier. In all practicality, there really is no fair use of music in a film and all music must be cleared before being used.
Moreover, if the actors were union members, such as the Screen Actors Guild (SAG), written permission from the actors is required and make payment to the union pension plan. Likewise, the same applies to the writer and director of the clip if they are union members of the Writers Guild of America (WGA) and the Directors Guild of America (DGA).
However, as an independent filmmaker much footage can be used pursuant to Fair Use. There are four scenarios in which live-action films integrate other’s copyrighted material pursuant to the Fair Use doctrine. These include:
I. True Story/Bio-Pic Films; II. Films Based on Real Events; III. Natural Sets; and IV. Soundstage Sets.
I. TRUE STORY FILMS
True story films are intended to be commercial, dramatic, entertaining productions. The use of the copyrighted material in the film tends to be transformative from the original purpose of the copyrighted work. The copyrighted work, in essence, has undergone a transformation and now has become a component of an entertainment project. Just like non-fiction works and documentaries, the Courts will apply the four factors to the use of the copyrighted work in the film, as stated in Section 107 of the Copyright Act, which include: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”
Moreover, it is safe to use another’s copyrighted work if it is: (1) only being used to illustrate a point being made, (2) used only as much as reasonably appropriate, and (3) the connection is clear to the average viewer. If these three conditions are satisfied, the use of the copyrighted work will be allowed pursuant to Fair Use. The likelihood of obtaining Errors and Omissions Insurance to cover the Fair Use of realistic material in a true story film is much better when these conditions are satisfied.
II. FILMS BASED ON REAL EVENTS
Many fictional feature-length films are inspired by real life events. When producing these projects, many times the film uses actual television clips, written manuscripts, archived footage of news reports and interviews from the time of the particular event. This makes the story more realistic. The incorporation of the copyrighted material in the film must be contextualized in order for the Fair Use doctrine to apply. If there is no contextualization of the copyrighted material, it is recommended that cards be shown before the copyrighted footage. The cards can serve as the means to provide a historical account and be used as a springboard to the scene. This will help make it safe to apply the fair use doctrine and to obtain E&O Insurance. The key is that the copyrighted work must undergo a transformation from its original purpose.
III. NATURAL SETS
When a filmmaker is shooting a scene at someone’s residence or place of business, a Location Agreement is needed. When a filmmaker shoots a scene in a natural setting, it is considered fair use to include the items that show up incidentally in the scene. The United States Congress has stated that fair use applies to items that are captured in a way that is fleeting, incidental, and fortuitous. Errors and Omissions Insurance can be obtained when a legal opinion is provided which gives an analysis that the copyrighted materials captured in the feature-length film is fleeting, incidental, and fortuitous. So long as the items appear as they naturally appear and they are not altered by the production, then E&O Insurance should be able to be obtained covering the items in the film and promotional materials. Key issues that you should be aware of when shooting at a natural set include: (1) artwork on buildings and (2) portraying a business in a defamatory manner.
(1) ARCHITECTURAL BUILDINGS
Including the items in a natural setting makes the film more realistic, and therefore the items captured are fortuitous and incidental. This also includes architectural buildings, despite the fact that the architectural drawing is protected by copyright. The Copyright Act specifically has an exception to a building’s copyright owner’s exclusive rights that permits the photography of buildings. So long as the building is captured as it normally exists in the natural setting, fair use should apply as it is considered fortuitous and incidental. However, if there is artwork attached to the building, there may be additional copyright issues. It is a gray line of what is considered an architectural feature of a building and what is considered decorative artwork (which will pose additional copyright issues). Depending on how the artwork is depicted in the film, permission from the copyright owner may be required.
(2) TRADE LIBEL
When shooting a scene in a natural setting, business signage may be captured. It is important to be aware that if the business is represented in a defamatory manner, you may be liable for Trade Libel. In a fictional film, it is important to not portray a business in a disparaging manner reflecting poorly on its service or products. Otherwise, you could be liable for monetary damages resulting from the harm to the business’s reputation.
IV. SOUNDSTAGE SETS
Set designers create drawings for the sets of television shows and movie scenes. A set design drawing is protected by copyright and if a designer copies another’s design without permission liability for infringement may result.
Another concern when designing a set is not to unlawfully portray the trademarks of the products in the set. A trademark is a word, phrase, logo, symbol (and in some cases, a color, sound, or smell) that identifies the source of a product or service (in the case of a service, the correct legal terminology is “service mark”). Trademarks become a concern when portraying the set dressings of decorations, literature, and other props. Decorations on the set include posters, paintings, sculptures, and photographs.
So long as the items are not the focus of the new creative work, they appear only fleetingly, they are not the story point, and the item is being used as it is normally used and credit is given at the end roll, then the use of the decoration should be considered Fair Use. In this case, trademarks do not have to be cleared. If, however, the project is for television, then Federal Communications Commission (FCC) regulations are at play and network policies limit portraying trademarks. Moreover, if the decoration is a focal point or the use of the item in the new creative work would diminish its profits and sales, it is then best to obtain permission and pay a license fee. It is not permissible to create a “knockoff” product, such as counterfeit, or a copy of the decoration. This is considered a derivative work, which is an exclusive right of the copyright owner. Therefore, if you make a knockoff product, you will be liable for infringement and have to pay damages. You could also find yourself liable for trade libel and misappropriation of name or likeness.
Furthermore, the covers of literature, such as magazines, books, and newspapers, are protected by copyright. So long as the literature is being used as it is normally, and not the focal point, Fair Use should apply.
All being said, in many cases, the manufacturer of a product will be happy to have their product in a film, and at times will even pay the filmmaker money for product placement. This gives the product more exposure and promotion. Product Placement deals are subject to negotiation and an attorney should be consulted.
Now that we’ve covered the application of the Fair Use doctrine in fictional feature-length film projects, you can be more aware of what is required. However, again, it is always better to be safe and attempt to get permission and obtain a signed release or a license for use of the copyrighted material – this shows good faith on your part.
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