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Got Consent?

Got Consent? Legal Issues in Film, Pt. 1: The Story


I was standing in the Filmmaker’s Lounge at the Highland Inn Ballroom when the message crept into view. “Got Consent?” I guffawed, thinking, what a perfect question to ask at a film festival. Stopping the woman wearing the tee shirt, I stated, “You are wearing a fitting message for a film festival.” A blank stare caught my eye. She informed me her tee shirt was from the Georgia State Dean’s Office and concerned sexual harassment. As an intellectual property specialist, my first thought drifted to consent to use others’ intellectual property, but I realized that there are many opportunities to explore the meaning of consent in filmmaking.

According to Merriam Webster, consent entered the English vocabulary in the 13th century from Latin and French. Consent means, “to give assent or approval; to agree to do or allow to do something; to give permission for something to happen or be done.” It has an abundance of synonyms; words such as agree, allow, approval, clearance, grant, license, permission, and permit all surface in the following discussion and are particularly found in the practice of law. Other words such as release may not be a synonym, but nonetheless its use evokes consent.

This article is split into five main sections by how a producer may encounter consent issues in filmmaking. Beginning with development, I discuss the story, from determining authorship to rights acquisition. Section two discusses the script and reviews clearance and title selection. The players bring up the mid section, which highlights consent in employment agreements. Section four discusses the production, from permits, to filming on location, use of animals, and releases. Saving the best for last, I discuss music in film, from commissioning new works, to working with artists, composers, publishers, record labels, and finally, music supervisors.

In each section, I will cite to case law that has surfaced since film entered the entertainment landscape. Courts interpret the law where the law is sometimes silent. My aim is to relate concepts so non-lawyers find the information useful as well as entertaining. I may also cite to statutes in an effort to educate, but will keep these footnotes in the minority where possible.

This article will publish in five separate sections over the next four weeks. If you enjoy this article, please sign up for my quarterly newsletter or follow me on social media where I will post updates with links to insertions. I will also share firm news, events, and pictures.


The Story

A story forms the foundation of a film. Stories take many forms; they can be written or spoken; they may have one or more authors; they may publish independently or as part of a collection. To develop a story, a producer must first determine the identity of its author, or authorship.

Authorship

A copyright attaches to an original work of authorship fixed in a tangible medium of expression[1]. There are eight (8) works of authorship listed under the U.S. copyright code, which include dramatic works[2], which are works intended for performance, such as plays and scripts. If a single writer completes the first draft of a script, he or she is the author and owner of that script. If another writer revises or polishes the first or subsequent drafts, then its result is a derivative work of that script. A derivative work is based upon one or more preexisting works and consists of editorial revisions, annotations, elaborations, or other modifications, which result in a complete work[3].

If two or more writers each intend to contribute parts, which then merge into an inseparable, interdependent whole, then each writer is a joint author[4] and owner[5] of that story. If each writer intends to contribute a separate, independent story, which when assembled with other stories becomes a collective work[6], then each writer is the author and owner to his or her story; however, there is an ownership interest in the collection[7]. Sin City, Love Actually, and Crash each contain vignettes that stand alone, but when combined tell even greater stories about other worlds or characters.

Screenwriters may capture stories in different phases of development. A screenwriter may pitch a story verbally to a producer, summarize the characters or plot in a written treatment, or develop a more complete script “on speculation.” Spec scripts, treatments, and pitches are preexisting works, in which screenwriters may register a federal copyright.

Federal copyright registration creates a presumption of ownership if the work is registered within five (5) years from the first date of publication[8]. Publication is the distribution of copies of a work to the public by sale or other transfer of ownership, or to a group of persons for purposes of further distribution, public performance, or public display[9]. One cannot sell or transfer what one does not own; therefore, registration of a work under the copyright law of the United States provides its applicant with ownership.

The owner of a federal copyright immediately benefits from six (6) exclusive rights[10]. Rights include the right to reproduce, prepare derivative works, distribute, perform work publicly, display work publicly, and perform sound recordings publicly by digital audio transmission. These rights derive their value in their exclusivity to the copyright owner, who has the right to exclude others from their use without permission. To access any or all of these rights, the producer must either have permission from the copyright owner or transfer ownership in the copyright to the work.

The right to exclude others lasts the duration of a copyright. Copyright duration begins from the date a work is created and lasts for the life of the author plus 70 years[11]. In the case of joint authors, copyright protection lasts for the life of the last surviving author plus 70 years[12]. If made under a work for hire or pseudonymous work, copyright protection lasts 95 years from first publication, or 120 years from creation, whichever expires first. If the identity of the author is revealed in a work registered pseudonymously, the period will convert to life plus 70 years[13].

Rights Acquisition

Producers generally prefer to acquire ownership in all audiovisual and allied rights to a preexisting work. Ownership is acquired through a transactional document, which is signed by the copyright owner and producer[14]. The writer remains the author in the preexisting work, but the producer now owns the motion picture and neighboring rights to develop it.

Preexisting works include include pitches, treatments, and spec scripts, as well as literary works not written for the screen such as novels. While most screenwriters seek relationships with producers, most novelists do not. Authors in literary works will more often have a relationship with a publisher. Publishers typically possess the authority to bargain motion picture rights on behalf of the author whom they represent by way of a publishing deal.

Authors or publishers will commonly reserve rights to all print, audio, and electronic text publication of the story, radio rights, stage rights, sound recorded rights in the case of audio books, and all rights, including those granted to the producer, in any sequels. Reserved rights enable the author or publisher to exploit the story in its original medium while accessing new audiences in motion pictures and other audiovisual mediums of expression.

The producer may hire additional writers to develop the script. These writers will generally agree to a work for hire agreement[15], which is a written document signed by both writer and producer that cedes ownership and authorship in the work to the producer[16], who specially orders or commissions the work as part of a motion picture. There is an exception for Writer’s Guild Association members, whose Minimum Basic Agreement provides “separated rights” that allow them under certain circumstances to regain or exercise certain rights akin to copyrights.

Rights Termination

Unlike a work made for hire, a transfer of rights can be terminated[17]. Termination need not be effected by the author, the author’s heirs may effect termination upon the author’s decease. Thus, there is a risk that at some point in the future transferred rights will terminate and revert to the author or author’s heirs. Copyright law provides producers, who lose their rights, with the right to reproduce, perform, or distribute a work created while under the authority of a transfer, but it will prohibit any new works, such as remakes or sequels[18].

Public Domain

Stories in the public domain are free to use. A story enters the public domain if its copyright expires, though for older stories other conditions exist which may thrust it into the public domain. An example of a story in the public domain because its copyright expired is most of Sir Arthur Conan Doyle’s Sherlock Holmes[19]. What is public domain in the United States may be copyrighted in a non-U.S. country. If a film requires the rights to distribute worldwide, then confirmation the story, which it is based upon, is public domain worldwide is essential.

True Stories

A copyright is an original work of authorship fixed in a tangible medium of expression. Expression is protected, not the idea or concept on which it is based. If I want to tell a true story, I am free to do so as long as my source material is not protected. Primary sources such as public records, court transcripts, witness testimonies, or trial documents are objective facts. Secondary sources such as books, autobiographies, or articles, are subjective interpretations of facts, and are therefore expressions, which may be copyrighted and if so, require consent.

Pitfalls exist when developing a true story that an entertainment attorney and insurance carrier will help the producer to identify. If a story is based in secondary sources, there is rights acquisition. If a story embellishes facts, there is possible defamation. If real names are used or private, embarrassing facts revealed, there is a chance of a privacy claim. If names are used commercially without permission, then a publicity claim might arise. To obtain errors and omissions insurance coverage, the producer must reduce or remove risk entirely.

Everything in Writing

Everything agreed to must be in writing to provide insurance carriers with clear chain of title. Clear chain of title requires documents that trace ownership in the story to the producer. In the case of a preexisting work, an assignment will record the transfer of motion picture rights from its author(s) to the producer. Assignments are accompanied by purchase agreements, or options. Option agreements document the interest in the preexisting work. If a preexisting work involves a publisher, then a release provides evidence the publisher releases all claims to the motion picture rights and consents that the producer reprint portions of text in print publication for advertising, publicizing, or exploiting the film.

In contrast, true stories that are based in primary sources require no assignment. The risk in true stories is working with people’s identities. Thus, a life rights agreement will insure the producer has permission to tell a true story without concern of a claim of defamation, or a violation of privacy or publicity rights arising from the film. If the true story pulls from secondary sources, then the producer may use both a life rights agreement and an option agreement with an assignment for any portion of the story based in copyrighted work.

Cautionary Tales

Authors may grant general but not specific rights. Warner Brothers Pictures learned a hard lesson when a character in their film, Maltese Falcon, subsequently appeared on television because the author licensed character rights in Sam Spade to CBS. The court found the film studio acquired rights to the general story, but not its characters; thus, the author was free to license those rights to third parties. Thus, rights not expressly granted in an agreement are not granted, but rather are reserved to the grantor, or author of the story[20].

Authors may bargain for reversion rights that specify conditions, which if met, terminate rights. In one case an author and film studio agreed to a completion deadline or the studio’s rights would revert to the author. The court found for RKO Teleradio Pictures, who only made minor changes after the deadline; thus, the author lost the case. This case established that a motion picture is complete when all photography and editing are done, musical score affixed, certificate of approval obtained, and the picture may be publicly exhibited[21].

Now that you have your story, it is time to clear the script! Script clearance includes personal rights and intellectual property rights. It is also time to select a title. Title selection is governed by trademarks, unfair competition, and through contract agreements by film professionals.

[1] 17 U.S.C. 102(a)

[2] 17 U.S.C. 102(a)(3)

[3] 17 U.S.C. 101

[4] Id.

[5] 17 U.S.C. 201(a)

[6] 17 U.S.C. 101

[7] 17 U.S.C. 201(c)

[8] 17 U.S.C. 410

[9] 17 U.S.C. 101

[10] 17 U.S.C. 106

[11] 17 U.S.C. 302(a)

[12] 17 U.S.C. 302(b)

[13] 17 U.S.C. 302(c)

[14] 17 U.S.C. 204

[15] 17 U.S.C. 101

[16] 17 U.S.C. 201(b)

[17] 17 U.S.C. 203

[18] 17 U.S.C. 203(b)(1)

[19] Klinger v. Conan Doyle Estate, Ltd., 755 F.3d 496 (7th Cir.) cert. denied, 135 S. Ct. 458 (2014).

[20] Warner Bros. Pictures v. Columbia Broadcasting System, 216 F.2d 945 (9th Cir. 1954).

[21] Mailer v. RKO Teleradio Pictures, Inc., 213 F. Supp. 294 (S.D.N.Y. 1963).

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