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.

Borat

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:
(1) intrusion of solitude, by intruding into someone’s private space or affairs, if such intrusion would be highly offensive to a reasonable person (secretly recording a person in the process of sharing private information without permission is one example);
(2) public disclosure of truthful private facts that are not of public concern, newsworthy or part of a public record, and that would be offensive to a reasonable person if made public; and
(3) portraying a person in a false light by publishing facts about the person that would be considered highly offensive or embarrassing to a reasonable person.

Filmmakers have had reasonable success defending against these kinds of claims. For example, the film Borat generated a number of legal claims for invasion of privacy.

One case involved a scene where Sasha Baron Cohen greeted the plaintiff on a Manhattan street corner. Before the actor could finish his comments, the plaintiff ran away in apparent terror, screaming “get away!” and “what are you doing?” The court found the film’s use of the plaintiff’s name and likeness unobjectionable since it reflected “newsworthy events or matter of public interest” because the film “challenges its viewers to confront, not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from ‘average’ Americans.” Other cases alleging similar claims against the film were also unsuccessful.

«truth is the most important – and an absolute – defense to a defamation claim»

The right of publicity protects the right to commercially exploit one’s name, image, voice or other well-known attribute (called one’s “likeness”). In contrast to the right of privacy and its emphasis on reputation, the right of publicity protects a purely economic interest. It is governed by state law and can vary widely from state to state, though certain individuals have obtained similar protection under federal law, such as the Lanham Act, where the use of one’s likeness in an advertisement incorrectly suggests sponsorship by or affiliation of the person with a product. The right is often invoked by celebrities and by private persons made famous following a newsworthy event.

Most cases involve situations where a company produces an advertisement that intentionally copies or imitates a celebrity’s likeness. But the law also applies to unknown, private persons. Certain states, like California and Tennessee, extend right of publicity protection to the dead, although in California, it is generally not a violation to depict a deceased celebrity in a film or television program. At the other end of the spectrum, fleeting or incidental uses of a one’s likeness are generally not actionable, and a documentary filmmaker can often rely on the First Amendment as a defense.

In one case, Frontline Video produced the documentary Legends of Malibu that chronicled the early days of surfing and included footage of famous surfer Mickey Dora. Dora sued on publicity grounds in California, but the court disagreed. Because the documentary concerned a matter of public interest, it was protected under the First Amendment and therefore exempt from liability.

Defamation involves the publication of a false statement of fact that damages one’s reputation. Defamation includes slander (spoken words) and libel (written or fixed words). Like publicity, defamation law varies from state to state, but in general, to win a case one must prove that the statement was:
(1) published;
(2) false; and
(3) injurious to his or her reputation.

In addition, opinions are not generally actionable. Only statements of fact will support a defamation claim. Defamation law provides less protection for public figures, such as celebrities and politicians, than for private persons who have not intentionally sought the spotlight. A private figure may become a public one involuntarily, such as after being accused of a highprofile crime.

Public figures must prove an additional element of defamation – that the statement was made with “actual malice.” In other words, the speaker eith knew that the statement was false or made it with reckless disregard for the truth. It is generally more difficult to win a defamation lawsuit in the US than in most of Europe due to wide First Amendment protection. Other countries such as the UK have very plaintiff-friendly libel laws, placing the burden of proving truth on the publisher or broadcaster.

Filmmakers looking to the US market will have more leeway depicting public figures than private persons, provided the portrayal is truthful. In all cases, make sure to research and document all sources used during production.

Insurance and search. Generally, errors and omissions insurers require a copyright search report before granting coverage. If title insurance is also needed, a title search report should be ordered. Certain distributors may also ask for a legal opinion analyzing these reports. If the film includes uncleared third-party material, the insurer may ask for a “fair use” opinion from an attorney reviewing whether the use(s) qualify under that defense. On a positive note, once these deliverables are accepted by the distributor and insurance is in place, distributors in other countries will generally accept the same deliverables as-is.


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LISA DIGERNES
Lisa Digernes has extensive experience as a legal adviser to the film and TV industry in connection with the acquisition and clarification of rights and matters relating to the financing, production and distribution of film and TV.