Got Consent? Legal Issues in Film, Pt. 2: The Script

If the story is the foundation of a film, then the script is the blueprint because it guides content. Any content not cleared runs a risk of violating rights, which can prevent the film’s distribution. To acquire errors and omissions coverage, scripts must be cleared.

A producer begins clearance not less than one month prior to principal photography. The team is typically a script clearance service and an attorney. The former cites aspects that reference real-world people or things, and the latter, legal implications that might arise as a result. Together, they provide the level of risk for each aspect under scrutiny.

Clearance means material is used or cut. Which way depends on the level of risk, and if that risk is acceptable by the errors and omissions insurance carrier. Carriers may agree to flagged items because the risk is within the desired threshold, or, they may require the producer seek further documentation. Further documentation includes licenses and releases.

Personal Rights

Privacy Rights

Privacy rights blossomed as a result of yellow journalism and the invention of the hand held camera, the Kodak Brownie, introduced by Eastman Kodak to the mass market in 1901. State tort laws developed privacy rights to protect the public from unauthorized exposure of their private lives, which exposure can result in personal injury. Personal injury arises in four ways: (1) intrusion into private life, either physically or electronically; (2) disclosure of private facts; (3) depiction in a false light, which may not be false but simply misleads the public in some way; and, (4) misappropriation of name, image, and likeness.

Some scripts inadvertently use the names of real people. To reduce risk, producers can change character attributes to make identification less likely. In contrast, documentaries intend to use real people, or describe places, events, or characters that may inadvertently expose identities. In that event, insurance carriers are likely to demand that all living persons depicted in the film sign personal releases to avoid potential privacy claims.

Freedom of the Press

Courts balance a free press with privacy rights. Private persons may expect greater privacy than public figures. Public figures such as politicians or celebrities thrust themselves into the spotlight and thus may expect less privacy. Some private persons thrust themselves into the spotlight inadvertently in a public trial. If a producer exposes a public figure, the story may be justified as newsworthy. In its first privacy case, a court held liable a producer, who told the story of a prostitute acquitted for murder, which actions took place years before she reformed her life and married. The court ruled that depiction of her real name and past conduct was not newsworthy and accordingly violated her right to privacy[1].

Defamation

Defamation is publication of a false statement of fact concerning the individual which results in damage to reputation. Defamation laws arise under state tort law, which laws distinguish between written defamation, or libel, and spoken defamation, or slander. It is possible to avoid liability if the statement is true, but one cannot escape from rights assertion where the same statement discloses private, embarrassing facts about an individual.

Disclaimers

Disclaimers do not guarantee avoidance of defamation. Examples of disclaimers will state that a film is fictitious, or depiction of real people is unintentional. A little league coach sued Paramount Pictures for defamation in Hard Ball, which was based upon a preexisting work[2]. The studio used a disclaimer, which stated that their film was “fictitious,” but the court found it insufficient to shield them from an action for defamation. Fortunately, viable defamation claims only arise in the living; there is no actionable claim for deceased persons[3].

Publicity Rights

Publicity rights derive from commercial exploitation of identity. Aspects of identity include an image, name, photograph, likeness, voice, or other characteristic. Publicity rights are descendible property; they increase in value, at times even more posthumously. Thus, living heirs may assert publicity rights where others profit from unauthorized use of identity. Private persons not public figures assert publicity rights if some aspect of identity is used without permission in a commercial manner, such as endorsing a product or service.

In one case, plaintiff and defendant were romantically involved, drug-addicted narcotics officers, who arrested 100 defendants before themselves going to federal prison. Defendant published her story and sold the motion picture rights for a million dollars to make Rush. Plaintiff asserted his publicity rights for unauthorized commercial exploitation of his identity. Defendant had not used plaintiff’s name, image, or likeness; she based a character on him. The court found no actionable claim because defendant only fictionalized general incidents from plaintiff’s life and plaintiff’s identity carried no independent commercial value[4].

Public figures such as celebrities or politicians possess independent commercial value. Films that depict celebrities in their content are less likely to make a producer vulnerable to a publicity claim because motion picture biographies are a form of protected speech, though such depictions can implicate defamation claims or privacy rights. Moreover, courts have ruled that celebrities have no exclusive rights in their life stories[5].

Use of celebrity identity in titles is subject to the Rogers test. Ginger Rogers sued producer Alberto Grimaldi and MGM Studios for the Federico Fellini film, Ginger and Fred, about Italian cabaret performers, whose routine emulated plaintiff. The court found for defendant, ruling that use of celebrity identity in titles is protected speech only if such use describes its content or otherwise has some artistic relationship to the motion picture[6].

Intellectual Property Rights

Trademarks

Trademarks can be words, logos, or slogans. Infringement[7] results from unauthorized use, which creates customer confusion or falsely implies endorsement. Ginger Rogers additionally sued on the basis that use of her name in the title might lead others to believe that she had authored, sponsored, or endorsed Ginger and Fred. Finding for defendant, the court applied the Rogers test to evaluate the unauthorized use of a trademark in the title of an expressive work. Courts generally will not find infringement if such use carries some artistic relevance to the film or does not constitute a false endorsement by the owner[8].

A trademark owner is not always a professional entertainer. More often, trademark owners are private institutions, businesses, and organizations, which use trademarks to indicate the origin of goods or services sold. Over time, consistent use, or branding, generates enough goodwill that significantly raises value in a trademark. It is the damage of this goodwill that owners seek to prevent when they enforce their trademark rights against unauthorized uses.

Traditional enforcement actions against market competitors seek to prevent unauthorized uses on the basis of avoiding customer confusion over origin of goods or services. As film is not generally a market competitor of brands it depicts; proceedings against filmmakers require a different approach. As an expressive work, film has at its disposal certain defenses that market competitors do not. Defenses include First Amendment, incidental use, nominative use, and parody. What is generally indefensible is when the unauthorized use of a trademark depicts a company or brand that amount to a negative commercial.

Product Disparagement

Insinuations that a company makes defective products can result in a lawsuit. In Films of Distinction, Inc. v. Allegro Film Productions, Inc., owner of The Crime Channel® sued producers of Relative Fear on the basis that unauthorized use of its trademark led viewers to think that those, who watch its network, become murderers[9]. In another case, computer software manufacturer of a product called Clean Slate® brought suit against Warner Brothers for its depiction in The Dark Knight Rises. In reality, the product protects public access to computers, but the film depicted its use by criminals to erase any trace of criminal activity[10].

First Amendment

The First Amendment defense stems from Rogers. Unauthorized use is likely protected speech if the trademark bears some artistic relevance to the film or does not constitute false endorsement. A sportswear manufacturer sued producers of No Fear for use of No Fear®, but the court found that use was artistically relevant and did not explicitly mislead consumers as to its origin[11]. However, a court enjoined unauthorized use of Dairy Queen® to title a satire about Minnesota beauty pageants, which producers changed to Drop Dead Gorgeous[12].

Incidental Use

Producers may argue a trademark is not unreasonably displayed or highlighted. A pinball machine manufacturer sued Paramount Pictures for depiction of their machine in What Women Want. The defendant argued such use was incidental, that even a keen observer would find it difficult to discern the trademark. The court agreed that it was unlikely such depiction would lead consumers to believe that the manufacturer endorsed the film[13].

Nominative Use

Defendants may argue a trademark merely identifies a product or service. In Dickie Roberts: Former Child Star, actor David Spade uses a Slip-N-Slide® with disastrous results. The court agreed such depiction was nominative because it served to only identify a prop, did not imply sponsorship, or constitute an endorsement by the toy manufacturer[14].

Parody

Parody is a specific type of protected speech because it adds criticism or commentary. Owners of FUBU®, which means “For Us By You,” sued Universal Studios for BUFU (“By Us, F*** You”) in How High. Producers argued their use parodied the FUBU® persona, but plaintiff disagreed, stating, “[Our] valuable name and reputation [has been] injured by crudely profane ridicule and by its association with the repugnant stereotype that multicultural youths require illegal drugs to empower themselves.” The court ruled that such speech was protected because it centered on comment and criticism of the trademark and its owner[15].

In Muppet Treasure Island, Jim Henson Productions depicts SPAM®, a trademark for canned luncheon meat, as Spa’am, high priest of a tribe of wild boars, who worship Miss Piggy as its queen. Hormel Foods Corporation sued, alleging that sales would decline if their product was affiliated with “evil in porcine form… that even comic association with an unclean ‘grotesque’ boar [would] call into question the purity and high quality of its meat product.” The court ruled its use a parody and the film released with character Spa’am intact[16].

Product Placement

Product placement seeks to include trademarks in films as an advertising mechanism that substitutes for television with potentially lucrative results. One early example of lucrative product placement is in E.T.: The Extra-Terrestrial when a character offers a taste of Reese’s Pieces® candies to an alien. The invention of TiVo made it possible to fast-forward through ads, which resulted in films as attractive substitutes. Product placement agents actively seek opportunities for placement of products in flattering or neutral settings.

Copyrights

Copyrights are original works of authorship fixed in a tangible medium of expression. Works include literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. Copyright registration provides its owner with a set of exclusive rights, including the right to reproduce, to prepare derivative works, to distribute, to perform publicly, to display publicly, and in the case of sound recordings, to perform the work publicly by means of a digital audio transmission. If a producer uses these exclusive rights without consent, the film becomes vulnerable to an infringement action[17].

Infringement

Copyrights need not be enforced in every instance of infringement to maintain validity. If the use is widespread and involves considerable profit, copyright owners may assert their rights to secure a leveraged settlement. An artist asserted his copyright in a drawing of a wall-mounted chair, which Universal City Studios copied into a set design where it appeared in 12 Monkeys. The court granted a preliminary injunction to the artist, which forced the film studio to pull its $30 million dollar film from active distribution. The film studio settled on unfavorable terms with the artist so that they could return the film to active distribution[18].

De Minimis

Defendants raise the de minimis defense to exclude infringement for copyrighted works that is so small it fails to rise to an actionable claim. A court ruled de minimis use of copyrighted photographs in Se7en because they were displayed in poor lighting, out of focus, and so briefly as to be indiscernible[19]. The pinball machine manufacturer in What Women Want also brought copyright infringement claims and lost because graphic elements of the machine were indiscernible, out of focus, and only briefly part of the picture[20].

Fair Use

Courts balance enforcing exclusive rights against making copyrighted works available for news reporting, criticism, comment, teaching, scholarship, or research[21]. Copyright law provides guidelines for courts to evaluate fair use, which inquiry can lead to different results. Paramount Pictures made a poster for Naked Gun 33 1/3, in which Leslie Nielson poses as the naked and pregnant Demi Moore. The film studio successfully asserted fair use, claiming the poster was a parody of the copyrighted work by Annie Leibovitz[22]. One year later in the same state, Black Entertainment Television defended their use as fair and lost to the artist, whose poster was used in a set design for a sitcom in which it appeared for 26 seconds[23].

License and Release

Producers can avoid a claim for copyright infringement by either editing out or pixelating scenes where works of authorship are clearly visible. The conservative approach is to obtain consent in the form of a license and release. A license provides the producer with a grant of rights to access exclusive rights, including reproduction, and specifies scope of use, including duration (usually in perpetuity) and geographic territory (usually throughout the world where the film is distributed). The release confirms the copyright owner releases the producer from any and all claims that might be brought, including for potential violations of personal rights or intellectual property rights, which may result from the exploitation of the film.

Film Clips

Errors and omissions insurance carriers are more likely to exclude film clips from coverage because of their high risk. Risk is high because of difficulty in determining ownership in the copyright and whether ownership includes territories throughout the world where the film will be distributed. Documentary producers are more likely to use film clips. The Center for Social Media is a resource on fair use of film clips for documentary producers. Music in film clips must also be newly licensed. In both cases, re-use of film and music will likely require payments to the relative actors’ and musicians’ unions. Finally, any persons depicted in the film clips may require a release to avoid any potential violations of personal rights.

Title Selection

Titles

The law regards motion picture titles as it does names of other commodities; thus, laws of trademarks and unfair competition apply. These laws protect the owner, who builds goodwill behind a trademark, and consumers, who trust such trademarks denote a certain quality[24]. Producers should choose titles that will not create a likelihood of confusion as to origin, affiliation, sponsorship, or connection in the minds of consumers.

Title Registration Bureau

The Motion Picture Association of America (MPAA) allows its members and non-member signatories to register titles for completed or anticipated projects in their Title Registration Bureau. Registration provides a contract-based approach to enforcement of rights in the title for a period of years. Any dispute between parties may be brought in arbitration.

Merchandising

Producers recognize considerable profits in merchandising rights to films. Merchandise includes a myriad of products such as apparel, school supplies, novelties, and toys associated with the original intellectual property in the film. If a producer uses a word, logo, or slogan to title a film, but a third party owns a trademark in a same or similar title in a product area, such as toys, it may be worthwhile to choose another title, which creates more opportunities to license merchandising rights with third party manufacturers and retailers.

Title Clearance

Errors and omissions insurance carriers will require producers clear a title. Similar to script clearance, title clearance involves a clearance service and a trademark attorney. The former provides the title search and report, which examines federal, state, and common-law trademarks to identify same or similar titles and summarizes the results and potential hazards. The trademark attorney provides a written opinion on the legal implications of title choice to the carrier, who uses the written opinion to determine the level of acceptable risk.

This concludes The Script: clearance and title selection. Next week we will talk about The Players: consent provisions in employment agreements, which include the grant of rights; use of name, image, and likeness; and other approvals, merchandising, endorsements, doubles, dubbing, outtakes, and nudity.