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Copyright Clearance – An issues list, and “fair use.”

Whether you are a producer, director, screenwriter, novelist, or photographer, it is imperative you stay focused on copyright, privacy and publicity clearance issues.

Having an unlicensed piece of footage in your film may mean the difference between a sale or distribution deal, or not. Making a person the subject of your story without having the appropriate signed releases or agreements may mean you are working on a story that someone else can stop you from selling or publishing.

Here is a partial list of issues to be mindful of as your production moves forward:

Does your story involve real people or real life events? Have you obtained their life rights or story rights through a well drafted, signed agreement, in writing? Is the person “recognizable” in your story? Is the person a “public person” or a “private person?” If a public person, has the subject signed a well drafted agreement pertaining to their right to publicity? Does any of the information or points in the work invoke issues of defamation, libel, slander or product defamation?

Have you written into your story any intellectual property of another – words, characters, songs, song lyrics, images, quotes, etc.? Are any of these elements in the “public domain?”

Note that the “public domain” does NOT mean “publicly available” or “out there on the internet.”

And “fair use” does not mean that simply because something can be easily grabbed off the internet that it becomes “fair use” material in a new creative work. Possibly, but very possibly NOT. Nor does “fair use” allow use of the works of another simply because your project is low budget, or not intended for commercial distribution.

Producers and Directors, Photographers and Graphic Artists
Are you certain your writer had clearance for everything that made it into their script or story? If not, the mistake becomes your problem as you take the writing into the next medium.

Is your director, cinematographer or anyone else involved in capturing the images of the shoot under contract – a well drafted contract? Have all of the on-mic and on-camera talent signed well drafted releases or contracts? Does your audio or video contain any work that may be the copyright protected material of another? Do you have a release or license for such materials? Are any of those elements in the “public domain?” Do any elements of the work relate to real people or real life events? If so, see the relevant questions for the writers above.

Does your work contain any images or clips from radio, tv, studios, networks, the internet, songs, performances, photographs, paintings, etc.? Do you have releases or licenses for such works? Are any of these in the “public domain?”

Few of these questions offer bright line answers, and most involve a tricky and complicated analysis of the law and the facts particular to each situation and instance.

Overlooking or ignoring these issues could mean finishing the project only to find that it cannot be optioned, sold, released or distributed because an inherent clearance problem is imbedded into the work. Worst still could be the potential for a lawsuit because of something contained in the work – irrespective of whether it has been optioned, sold, released or distributed.

All of these issues are best dealt with early on, and by involving an attorney knowledgable in these areas.

The project and fortune you save may be your own!

As an entertainment attorney, my focus is protecting and advancing your project. Please contact me at your convenience if I may be of assistance.