Digital Video - November 2007 - (Page 64) CAMERAS & COURTROOMS BY THOMAS A. CROWELL, ESQ. LIGHTS, CAMERA, LAWSUIT AVOIDING INFRINGEMENT ON THE SET. hen the director yells “action,” what the camera captures can spark lawsuits. All it takes is one suddenly inspired art director to place an uncleared Warhol print on the wall of the hero’s apartment or the Coca-Cola logo on the mirror that the drug-addicted villain uses to cut his cocaine. Unless the producer has the permission of all of the respective copyright and trademark owners, cinematography can lead to infringement. In this article, we will explore the most common problem areas filmmakers face with intellectual property (IP) on the set and give you ways to avoid infringement. W THE PROBLEM: IP IS EVERYWHERE IP-protected materials are all around us: posters, sculptures, product labels, makeup designs, even the tinny music playing over the radio held by an extra. All of these should be cleared for use in your film. And clearance doesn’t just start and stop with the copyright to artwork and music. Unauthorized trademark use can often bring the unwelcome attention of the trademark owner’s lawyer—especially when the trademarked goods are shown in a negative light. Famous trademarks may be tarnished if they are placed in a vulgar or slanderous context, and the trademark owner can sue. mission of the owner of the copyright to use that item. Mere ownership of a particular copy of a work of art does not give you any copyright rights to it. Don’t fall into the trap of thinking that just because you have a valid location release from a homeowner that you also have the right to photograph any of the copyrighted materials in his or her home. The homeowner may no more have the right to authorize the photography of the Warhol print than your art director does. If you are unable to get permission from the copyright owner to use a particular work, you may be better off removing it from the scene. 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? A brief shot of a product bearing a wellknown trademark is often okay. But including a copyrighted painting in your scene could land you in legal hot water. ALL’S FAIR? Fair use allows the taking of some part of a copyrighted work without securing the author’s permission. Examples of fair use include news reporting, criticism, comment, teaching (including multiple copies for classroom use), parody, scholarship, and research. The federal copyright statute (17 U.S.C. §107) says courts must give weight to the following four factors in determining fair use: “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.” Courts are increasingly placing a lot of emphasis on whether or not the unlicensed use is of a transformative nature. A transformative use “adds something new, with a further purpose or different character, altering the first with a new expression, meaning, or message.” So, if instead of merely slavishly copying the film clip, a producer modifies it by using digital effects—and uses the clip to comment upon its original source, creating new expression or meaning—the court may be more likely to find fair use. COPYRIGHTS ON THE SET Copyright protects expressive works, like art, writing, music, film and sculpture. With few exceptions, a copyright owner has the exclusive right to authorize any duplication, distribution, performance or display of the copyrighted work. As a result, copyright can be the bane of the conscientious art director. Watch out for props and set dressing: even though you bought a poster, sculpture, painting, prop, and so forth, you still need to get the per64 dv november 2007 TRADEMARKS ON THE SET Trademarked logos are found on product labels, billboards, and clothing insignias. But trademarks can also be sounds, like NBC’s three-tone network chime. Trademark rights can also protect a particular and distinctive way a store is decorated, called trade dress (think of the design This article has been prepared for educational and information purposes only and is not legal advice or legal opinion. Only your attorney can advise you which laws are applicable to your specific case and situation. www.dv.com http://www.dv.com
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