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Got Consent?

Got Consent? Legal Issues in Film, Pt. 3: The Players


If the story lays the foundation, and the script forms a blueprint, then the players build the motion picture. Players are writers, directors, actors, producers, casting directors, composers, and crew. Employment agreements between the production company and creators define the nature of the relationships. They contain key provisions, the most relevant to creators being the grant of rights, name and likeness, and other approvals.

Grant of Rights

The grant of rights will generally consist of three main parts: (1) work made for hire; (2) assignment of rights; and, (3) moral rights waiver. These key elements provide the production company with layers of ownership in the work product of its creators. For example, if a work is not made for hire, then an assignment will transfer any rights in the work automatically to the production company. A moral rights waiver removes any possibility that a creator can prevent the production company from manipulating the work as it sees fit. Thus, ownership allows for flexibility in the creations. Distributors prefer that production companies own all rights in the work product of its creators so that they may access those rights for worldwide distribution.

Work Made For Hire

The United States Copyright Code defines a work made for hire as either a work prepared by an employee within the scope of employment, or, a work specially ordered or commissioned for use as part of a motion picture, if parties expressly agree in a written instrument that is signed by them that the work shall be considered a work made for hire[1]. Most employment agreements between creators and production companies will state in the grant of rights that the work is specially ordered or commissioned as part of a motion picture; thereby foregoing any need to dispute whether the freelancer is or is not an employee.

The default rule is a freelancer will own his or her creation unless he or she agrees to the contrary in writing[2]. An actor filmed a part for a production, which she understood was an adventure story set in ancient Arabia. Several months later, she received death threats, and an Egyptian cleric issued a fatwa calling for the death of everyone involved in the film. The producer had placed her performance with an overdub into another film offensive to Muslims. The actor filed suit and received a judgment in her favor. The court ruled that in the absence of a signed writing attesting to a work made for hire, an actor grants an implied license to the producer. If the producer uses the performance in a way so radically different from the one contemplated, the actor may assert a copyright interest in the performance and rescind the license, which sterilizes the performance[3].

If a production company asserts ownership in a creation, for which there is no executed agreement, courts examine the relationship between parties. If the relationship is that of employee and employer, then the creation is work made for hire and owned by the employer. If the relationship is that of an independent contractor, the freelancer owns the creation. Whether the creator is an employee or an independent contractor is an inquiry that is fact intensive and outcome unpredictable; therefore, it is best to clarify the relationship between parties in an executed agreement prior to commencing work to avoid a dispute, which can result in loss of ownership in rights to the work.

Courts consider the following factors in disputes over work product: (1) source of the instrumentalities and tools; (2) location of the work; (3) duration of the relationship between parties; (4) whether the hiring party has the right to assign additional projects to the hired party; (5) extent of the hired party’s discretion over when and how long to work; (6) method of payment; (7) hired party’s role in hiring and paying assistants; (8) whether work is part of the regular business of the hiring party; (9) provision of employee benefits; and, (10) tax treatment of the hired party. No one of these factors is determinative[4]. One court determined certain factors should weigh more heavily than others[5]. If work is prepared as an employee within the scope of employment, then the creation is a work made for hire and the employer owns the rights and is the legal author in the work.

Assignment

An assignment insures that rights, which do not vest solely, exclusively, and automatically, instead are assigned and transferred from the creator to the production company. Transfers are only valid if they are in writing and signed by the creator or authorized agent[6]. Recordation is optional and provides constructive notice of ownership in addition to other important benefits concerning access to rights[7]. Employment agreements are generally not recorded. Production companies may request individual assignments in which case they will likely require the creator to appoint them as the attorney-in-fact to execute transfers.

The Copyright Code provides for terminations in transfers granted by an author in a work of authorship. Since copyrights are descendible property, living heirs may terminate transfers after an author’s death; however, there are specific rules concerning how descendants must agree to terminate, when it may effect, and what constitutes valid notice[8].

Moral Rights Waiver

The United States recognizes a limited set of moral rights[9]; however they exist throughout the world. Moral rights provide creators with rights to create, to determine completeness, to withdraw, to attribution, and to integrity. In many places, moral rights are inalienable and innately ascribed to the creator. In context, moral rights entitle a creator to limit what a production company or film studio may do to alter the work, produce remakes, or sequels. Because production companies or film studios require control whether to market, sell, and distribute a film worldwide, creators typically waive moral rights.

Guild-Based Rights

A production company may or may not be a signatory. There is an approval process, which if granted will subject the production company to collective bargaining agreements with each respective guild. What a production company may or may not do with intellectual property is addressed in these agreements. The Screen Actors Guild provides circumstances in which actors’ portrayals may be “reused” by film studios. The Writers Guild Association provides “separated rights,” akin to copyrights, which allow writers to regain or exercise certain rights even when another party owns the work. The Directors Guild Association requires certain credits for directors. Production companies must review relevant provisions to insure that any particular uses of work will not violate any guild agreements.

Name and Likeness

The “name and likeness” provision addresses publicity rights. The grant of publicity rights enables the production company to advertise, publicize, and exploit the film. Publicity rights are the commercial value of an identity. Identity includes any personal characteristic or trait such as name, likeness, sobriquet, voice, image, and signature. Production companies will include a provision in their employment agreements to acquire access to publicity rights from players. For actors, the name and likeness provision is lengthy because it incorporates additional commercial applications, such as merchandising, tie-ins, and endorsements.

Other Approvals, Merchandising, Endorsements, Doubles, Dubbing, Outtakes, & Nudity

Actors probably have a higher number of issues related to consent, grant of rights, and other permissions in their employment agreements simply because there is a greater expectation upon them to sell a film. Save for a few directors or producers who are, in their own rights, celebrities, actors are the chief attraction to moviegoers. In addition to all of the above grants of rights in ownership to the work and publicity, production companies seek consent from actors for still or likeness approvals, merchandising, commercial tie-ins and endorsements, doubles, dubbing, outtakes, and nudity[10].

Approvals

Approvals include stills and likenesses. Stills are different from likenesses because the former involves an actual photographic capture of a real person, whereas the latter can be a computer-simulated image, such as CGI. Because so much of a celebrity’s life revolves around his or her image, receiving approvals for the use of such images can be the ultimate challenge. While the industry standard for turnaround of an approval is 3-5 business days, it may take several submissions before the production company receives the requisite approval.

Merchandising

Merchandising is one of the most successful ancillary businesses in motion pictures. Merchandise includes a myriad of products such as apparel, school supplies, novelties, and toys associated with the original intellectual property in a film. If an actor’s name or likeness is used in conjunction with the manufacture of merchandise, the employment agreement may provide the actor with a share of its revenue as part of compensation. Similarly, a royalty is provided where an actor’s voice is used in the soundtrack to the motion picture.

Commercial Tie-Ins; Endorsements

Actors may grant rights to use their name and likeness in connection with advertising or merchandising non-film products, commodities, services or series, with the caveat that they must first provide consent. Consent serves as an exercise of control by the actor in the event he or she does not wish to be affiliated with certain products or services. Actors may withhold consent at their sole discretion. The chief difference between commercial tie-ins and endorsements from merchandising is the former allows no profit share; while the latter serves an additional revenue stream.

Doubles, Dubbing, Outtakes, & Nudity

Actors also require consent for use of a body double, dubbing, outtakes, and nudity. Body doubles may be under less scrutiny if specialty or stunt performers. Actors, who speak foreign languages, or for whom English is not their first language, may insist on performing their own dubbing. Actors require prior, written consent for the use of outtakes, which are not shown in the film. Finally, there is a laundry list of consent items to consider when actors perform scenes requiring nudity or sexual acts. The Screen Actors’ Guild Minimum Basic Agreement requires actors receive written notice of such scenes prior to the first audition or interview, approve the appearance in writing, and approve any body doubles to be used in writing. Finally, the writing must include a general description of the depiction and sexual acts to be performed in the scene. In the event the actor has a change of heart then a body double may be used without the need for further consent. During shooting, actors require no still photography of the scene be permitted without their prior, written consent.

This concludes our overview of The Players. The next section will address The Production. Specifically, we will discuss permission to film on government and private properties, use of animals, and consent to film crowds, people, and protected elements on props. We will also take a look at telephone communications and what the law says in Georgia versus the rest of the United States.

[1] 17 U.S.C. 101

[2] Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).

[3] Garcia v. Google, Inc., 743 F.3d 1258 (9th Cir. 2014).

[4] Community for Creative Non-Violence v. Reid, supra at 752.

[5] Aymes v. Bonelli, 980 F.2d 857, 861 (2d Cir. 1992).

[6] 17 U.S.C. 204

[7] 17 U.S.C. 205

[8] 17 U.S.C. 203

[9] 17 U.S.C. 106A

[10] Gunnar Erickson, Harris Tulchin, & Mark Halloran, The Independent Film Producer’s Survival Guide 216 (3rd ed. 2010).

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