Wait! Don’t close the page yet. We know what you are thinking: legal advice? That’s boring stuff!
While the legal side of making a movie doesn’t sound as exciting and magical as other parts of filmmaking, it is of crucial importance. If you don’t protect your project and your ideas, you live in the constant threat that someone will swoop in and steal your hard work!
Just trust us: grit your teeth, and keep reading.
- Mum’s the word!
Did you know the Eddie Murphy comedy Coming to America was sued for copyright infringement by Art Buchwald because of unauthorized use of his abandoned project called It’s a Crude, Crude World?
Let’s start from the basics: copyright stops others from copying your work without permission. In the US you can register your creative work by submitting an application online to institutions like the Writers Guild of America or the US Copyright Office. Outside the US, the registration of copyright is a free-standing duty.
A movie is copyrighted when it has been created and fixed in a tangible object, so basically when it is finished being filmed and edited and before it even gets a release. It does not need to be registered with the U.S. Copyright Office to receive copyright protection, because copyright starts with the act of creation.
The ideas do not have to be new, but the way they are expressed must be an original creation. For example, Bradley Cooper`s hit movie A Star Is Born, starring Lady Gaga, was actually a third remake of the original movie. Cooper did not have to buy the rights because even though he kept the original storyline, he made enough changes for it to become an original creation, for examples by adding completely new songs like the Oscar winning Shallow. Great, now that’s gonna be stuck in everyone’s mind for the rest of the day.
Still, if you want to protect your film in front of a court of law be sure to keep the script to yourself until you can prove that you came up with the idea! If you want to protect it in the United States, register it, even if it is just a working draft. Better be safe than sorry.
2. Check the expiration date
You probably know that you cannot exploit other’s works covered by copyright without a prior written authorization. Even the giants at Warner Bros. had to buy the rights for Harry Potter from J.K. Rowling, author of the original novels.
A plethora of moral and economic rights surrounds each creative work, but the only rights that can be transferred to a filmmaker are the economic ones, which include copying or reproducing the work; performing the work in public; making a sound recording of the work; making a motion picture of the work; broadcasting the work; translating the work and adapting the work.
The moral rights are referred to as inalienable rights, and they are the right to be considered as the author of the original work and the right to modify the original work. These belong to you, the original creator forever and they cannot ever be transferred or sold.
Of course the film industry, like any other creative industry, is constantly fueled by artist’s inspired by others. So to guarantee creativity, economic copyright protection lasts 70 years after the death of the author or after the publication or creation of the work (in the U.S. copyright for employee-created works and specific commissioned works last 95 years from publication or 120 years from creation).
Figuring out the actual term for copyright can be quite complicated, depending on when the work was created. Here’s a great chart that should help sort things out a bit. For example, if you are passionate about cartoons, Mickey Mouse’s copyright will expire in 2023 after 95 years from his first premiere. Once a copyright term expires, the work becomes public domain and everyone is free to use that without authorization. If your research doesn’t give you a clear answer on the status of the copyright of the work you want to use, don’t be afraid to contact the author of the work or whoever currently owns the copyright.
Do you need right now some inspiration for your next film? In 2020 many works have entered the US public domain like George Gershwin’s Rhapsody in Blue, silent films by Buster Keaton and Harold Lloyd, and books such as Thomas Mann’s The Magic Mountain, E. M. Forster’s A Passage to India, and A. A. Milne’s When We Were Very Young. This means that you can create a film based on these works without purchasing the rights.
3. Find creative solutions for obtaining rights
We call it fair use when, in some exceptional cases established by law, the user can use the work protected by copyright without paying the copyright owner. These are special cases in which using someone else’s work isn’t in conflict with the author’s exploitation of the work, and it does not unreasonably prejudice the legitimate interests of the author.
For example, Vampires Suck, directed by Jason Friedberg and Aaron Seltzer, is a parody of the famous Twilight saga. While the storyline and the characters clearly reference the author’s, Stephanie Meyer, work it does not represent copyright infringement for using the use of some of the content. Parody is one of the cases in which fair use is considered, and since in Vampire Suck the new work does not deprive the right holder of commercial gains, it is considered legitimate.
But don’t be afraid to use some bolder strategies. Take the example of our friend Jim Cummings, who directed the Best Non-European Dramatic Short Film Award winner at ÉCU 2016.
His winning short film, Thunder Road, is based on the Bruce Springsteen classic by the same name. Committed to his vision, Jim Cummings wrote an open letter to the musician to ask for music rights for free. And guess what? Springsteen actually liked the film and gave him the rights of the song for just a thousand dollars. They don’t call him The Boss for nothing.
Feeling lucky? Give it a go as well!
4. Actor release forms: your new best friends
An actor release form is the legal agreement that undeniably certifies that an actor has granted you the rights of using their image, voice and performance in your film. You need one for each person appearing on screen because without it, you cannot sell or distribute your film.
Commonly, an actor release form authorizes you to put the actor in every part of your project, also allowing you to create promotional materials with your actor’s name, face, and voice. In some cases, like news or documentary purposes, a release is not necessary if the person understands he/she has been recorded. But once again, if you have a signed talent release you can defend yourself and your work in a court of law, and that is always the best solution for you.
It is always better to obtain a release if you have any concerns over the legal ramifications of showing or hearing a person you are recording. And it is surely quicker and less painful than getting involved in some tedious legal battle!
5. Safety first
A location agreement is a license that gives the whole production permission to use a location in a way in which they would not otherwise be legally entitled to do. This is, for example, the document that allowed Gary Ross’ Ocean’s 8 to shoot its most spectacular scenes inside of the Metropolitan Museum of Art in New York.
Location agreements should always be sought from the right holder, i.e. rightful land or home owner when shooting on private property, and from the appropriate government entity when shooting on public property; otherwise you could be accused of trespassing.
Filming or photographing private property from outside, such as from an adjacent property or from the air, may still be problematic in some circumstances. For example, filming from the air can amount to trespass where the intrusion into the property’s airspace interferes with the occupier’s use of the land; such as through prolonged hovering in a helicopter. Furthermore, if the filming involves recording private conversations this will be an offence in most States and territories.
Shooting public or government property like public streets and public sidewalks, or government buildings do not generally require a location release. But a permit may be required if your production causes any disruption to the normal traffic flow of people or vehicles. If there is a large crew, a need for cleanup, security, or closing on streets or sidewalks, a permit will likely need to be obtained.
Shooting on public property where a private business sign is clearly visible to the public, will not generally require a location release from the business. But shooting various aspects of the private property can cause problems without a release. The same goes for shooting on private property or inside a private building. You will always need a release to cover yourself in these situations. Noticed a trend? You’re always better off asking for permission and protecting yourself legally than risking the wellbeing of your project.
To sum up, the final ingredient of a great film must necessarily be the suitable legal protections that allow filmmakers to work without any risk to their most precious asset: their work.
Can you imagine a situation in which everything you created goes to waste because of a missing form or a background actor that has changed his mind? Look after your masterpiece also under the legal point of view, and with the same care and attention you would put into your creative effort.