For many filmmakers, the US market presents an obstacle because of generally stricter requirements regarding clearance of material and documentation of chain of title. This article presents an overview of the main clearance issues to consider under US law, but fear not – it may not be as bad as expected! In fact, European law in this area can be even more restrictive and difficult to navigate. While in production, it is helpful to have to establish a few ground rules.
First, make sure that all crewmember contracts are in place to avoid misunderstandings over scope and difficulties obtaining signatures after the fact.
Second, it is helpful to consult with a lawyer during production to determine whether to include any pre-existing footage or material in the film as well as footage of individuals who have not given their permission.
Third, all of this information should be combined into a “rights bible” for reference by counsel and prospective distributors. The rights bible will also help with obtaining errors and omissions insurance required as a deliverable by most US distributors.
Fair use. In the US, filmmakers may use preexisting material without clearance if the use qualifies as fair use under copyright law. European law does recognize a similar principle, but its application is far more limited and often country-specific (such as fair dealing in the UK and the right of quotation in Norway).
For these reasons, clearance of pre-existing materials in Europe may often be more difficult than in the US. There are several reasons a filmmaker may want to rely on fair use – the owner cannot be found, a request for license would be futile due to the way the material is used in the film, or the license terms are too restrictive or the fee too expensive. What kinds of programs qualify as fair use? US Copyright Act Section 107 provides some guidance and includes use for the purposes of “criticism, comment, news reporting, teaching, scholarship, or research” as qualifying under fair use. There is often a strong presumption of fair use if your work fits within one of these categories. Courts have acknowledged that documentary films and other non-fiction works may qualify, provided other requirements are met.
Additionally, courts consider whether the new use is “transformative” and alters or supersedes the original with new expression, meaning, or message. When analyzing fair use, US courts rely on four factors listed in Section 107:
(1) the purpose and character of the use, including whether such use is of a commercial nature or 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. Often certain factors are given more weight than others. Two cases are illustrative. In the first, involving a Muhammad Ali documentary, Muhammad Ali: The Whole Story, 1996, the producer included at least 14 clips of footage, from 41 seconds to two minutes in length from the previous documentary When We Were Kings, without permission from the owner.
Though the amount may have been substantial, the court found the use fair emphasizing that the film’s purpose concerned a person of public concern on a subject of public interest.1 In another case with similar facts, the court reached the opposite conclusion. The producer of a 16-hour documentary about Elvis Presley, The Definitive Elvis, used several clips from the Ed Sullivan television show, ranging from a few seconds to 30 seconds long. The court did not find this qualified under fair use, in part because the clips were included merely as “filler” and did not contribute to the message or purpose of the film.²
«it is generally more difficult to win a defamation lawsuit in the us than in most of Europe due to wide First Amendment protection»
It is therefore important to keep these factors in mind throughout production. For example, why the material is used – is it to increase the overall production value of the film or is there a specific purpose, such as to comment on, analyze or criticize the original material? Does the use “transform” the material through editing or adding new material such as voice-over? Unfortunately there is no easy rule of thumb, but fair use is stronger for a documentary or non-fiction work than for a dramatic one. Courts themselves acknowledge this and have found documentaries that comment on the original footage (or its subject) to be “transformative”, unlike those that simply copy or repeat the footage.
The right of privacy aims to protect one’s feelings or reputation from harm (a person’s mental interest). It is similar to the law of defamation in that both only apply during a person’s lifetime. In other words, you cannot defame or invade the privacy of the dead.
The right of privacy generally applies to the following situations:
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