CLEARED FOR TAKEOFF
“Clearance is an entertainment business term of art. Clearance relates to the analysis and activities necessary to ensure that a project does not infringe on anyone else’s rights (i.e. third party rights).”: Creativity and Copyright: John J. Geiger and Howard Suber.
I am constantly reminded of the words of my law lecturer Professor Cornish who characterised copyright as being “infinitely divisible”. It was a valuable insight into the commercial side of creativity, and is clearly evident in the film and television industry. The birth of an idea for a project is followed by the generation then acquisition of rights process in its development, further assignments and licenses of rights during production (including a myriad of distribution rights), and in many cases, a review of any civil rights such as privacy and defamation before release. The importance of a solid and well documented clearance process becomes obvious when filmmakers are required to provide Chain of Title opinions or obtain E&O (Errors and Omissions) insurance cover.
As usual, when disparate rights need to be balanced (e.g. the right to determine how a film project is “expressed”; as opposed to third party copyrights, commercial rights such as branding, and civil rights) there are areas of legal uncertainty. These can range from simple enquiries as to the use of images or footage from the art department to subtle copyright issues such as fair dealing, public domain material and incidental copying. To address a few examples:-
Branding: We frequently get enquiries about the use of branded products such as clothing, vehicles and devices in productions. The rights present in typical product branding are a combination of artistic copyright in the design of the brand, and trademark registration. The trademark protection ensures a period of monopoly in the brand name and design and is used as a confirmation of ownership and authenticity of the goods and services. As such, the use of trademark imagery in a production usually complies with that purpose – the problem is more the extent to which the trademark owners want to control its exposure. The use of artwork comprised in the emblem or logo could also amount to infringement; however, the images are frequently saturated in public, which reduces the risk of litigation, especially if the image is shown fleetingly in the background (which is the essence of the defence of incidental copying). Ultimately the main proviso to using branded imagery is to ensure that the brand is shown in a positive (as opposed to damaging) light. And as with third party artworks, photos or footage; the best practice to avoid risk is to contact the owner and “clear” their rights for use.
Title Search: Despite copyright protection not extending to the title of a production, a Title Search is a frequent requirement of insurers and distributors. The content of these searches is
a surprising mixture of media, jurisdictions and incidental information that is often difficult to measure risk by. A similar trademark protecting another production is clearly an issue, but otherwise we are most comfortable with either minimal name similarities, or conversely a large number.
Scripted v observational content: these genres require different clearance processes – scripted content is usually built on underlying material such as books and scripts with the transfer of copyright for Chain of Title purposes being recorded by contractual assignments and licenses; whereas the focus for observational content is more to avoid breaches of civil rights such as privacy and defamation. Even so, there are any number of releases, licenses, quitclaims etc. that are best recorded in writing, bearing in mind that cynical Hollywood gem: “an oral agreement isn’t worth the paper it was written on”…
Public Domain: Most creative people are aware that their monopolistic copyrights are limited in time. The measurement of copyright expiry i.e. the term of copyright “plus any extension thereof” can be complex – it is defined in the Copyright Act 1994, but can be extended by statute and also effectively by remakes and spin off rights. In addition to copyright expiry, there are a number of instances where copyright protection may not be available. These include: facts or non-fiction works (i.e. True life or events), news and historical events, commonplace generic scenes (the so-called Scenes a faire); slogans and short phrases, and ideas (where they are not recorded in material form).
Fair Dealing: Under New Zealand law, the inclusion of copyright material for the purposes of reporting current affairs or for criticism or review is exempt from being actionable as infringement. The ambit of this doctrine is narrower in New Zealand than its “Fair Use” counterpart in the US, due to extensive definition by litigation and the ability to reference a constitutional right to free expression in the US. However, the phrase “current affairs” has been given a broad definition in New Zealand, and can include elements of entertainment; so the exception has been useful for documentary and reality television producers here.
Parody and Satire: Whilst there is no specific exception (yet) in New Zealand law for these genres (and perhaps any “homage” scenes from other productions) there are indications from more litigious countries that courts are reluctant to find breach of copyright, despite the essence of these forms of entertainment being to capture both the content and style of a third parties’ work. US authorities refer to parodies being an imitation of a serious work for a humorous or satirical effect, which may fall under the “fair use” exception as essentially being a means of criticism. Usually, Judges are the least accepting of a “taking the piss” argument, so this can be seen as common law (i.e. Judge-made) filling a gap left vacant by legislators.
But you don’t want to end up in court… E&O insurance is cover against liability for copyright infringement and breaches of the various civil and commercial rights briefly referred to above.
Brokers of film and television E&O insurance can provide a clearance checklist, which is a very useful document. This is however an area where you will need a lawyer – we approve both the clearance process and the Chain of Title for the production – and given the inevitable need for E&O and Chain of Title confirmation to funders, distributors and completion bonders; we entertainment lawyers are fully deserving of our last place credits in the end sequence …