Copyrights on the Set
Watch out for props and set dressing. Remember, mere ownership of a particular copy of a work of art does not give you any copyright rights to it. Even though you bought a poster, sculpture, painting, prop, and so forth, you still need to get the permission of the owner of the copyright to that item.
If you are unable to get permission to use a particular piece of art, you may be better off removing it from the scene. If that’s not possible, make sure, at a minimum, that the artwork is not featured in the scene, and if it’s depicted at all, such depiction should be fleeting and incidental.
Of course, you may be able to defend a copyright infringement lawsuit on the grounds that your use constituted fair use under copyright law. However, as a practical matter, relying on fair use is probably a pretty bad idea. People assert a fair use defense after they’ve already been sued and have had to pay a lawyer to defend them. That being said, what exactly is fair use of a copyright?
Fair Use of a Copyright
Fair use is a defense to copyright infringement. It allows the taking of some part of a copyrighted work without need to secure the author’s permission. Examples of fair use include news reporting, criticism, comment, teaching (including multiple copies for classroom use), parody, scholarship, or research.
In general, a court is more likely to find fair use when the use has been transformative. To determine whether the use is transformative, the court will ask: does this new work add anything to the original, or recast it in a different light? Or, instead, does it merely copy and compete in the same marketplace as the original?
How Do Courts Decide If a Use is Fair Use?
The federal copyright statute says that courts must give weight to the following four factors in determining fair use under copyright law:
- “The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.”
Unfortunately for the producer, it is up to the court to decide—after the fact—whether the taking was excused because of the fair use doctrine. This means that the filmmaker has already been dragged into court by the copyright holder, something clearances are designed to avoid altogether.
Documentary filmmakers may have a bit of an advantage over narrative filmmakers when it comes to fair use. In general, a copyrighted work that just happens to appear fleetingly in the background in a scene in a documentary should not cause infringement.
Example:
Penelope producer is shooting an interview with Dr. Matheus Liebeenhög, world’s foremost authority on dryer lint, for her documentary “Dust Bunnies and their Furry Friends.” On a side table behind the good doctor is a small copyrighted sculpture, which is partially obscured by his elbow. If she was sued for infringement by the sculpture’s copyright owner, a court would probably side with Penelope. Note however, that Penelope could still be sued for infringement. The better practice would be to move the sculpture.
One helpful resource for evaluating whether your use of a copyrighted work is fair use is the Documentary Filmmakers’ Statement of Best Practices in Fair Use, created by American University’s Center for Social Media (AUCSM). You can find the report here.
AUCSM has created a helpful website to help artists negotiate the often rough waters of fair use.
For more on copyright and fair use, including some helpful examples, see my book: The Pocket Lawyer for FIlmmakers.
Architectural Copyright
Architecture is a special case under copyright law. Even though architecture is protected by copyright, an exception to the law allows you to photograph buildings which are located in or visible from a public place, without first securing the permission of the copyright owner. However, there is an exception to this exception... stay with me here... special local rules may protect local landmark buildings, requiring you to obtain permission. If you routinely shoot in a particular area, it might be helpful for your attorney to compile a list of any local state or historic landmarks that your camera crew should avoid.
The Artwork License
If you really need to include a particular work of art in your film, and you can’t hire an art director to create a satisfactory original work as a work made for hire, try obtaining an artwork license. This license grants the production company the right to use the art in all versions of the motion picture.
