Checklist of Clearance Issues

The following checklist can help you spot clearance and permission issues in your media production. By necessity, the discussion within the checklist is cryptic. The checklist refers you to subsequent sections of this book for greater explanation. The checklist is not an exhaustive list of every clearance issue relevant to your production.

Is the production based on real life?

If the production is based on a true story, there may be issues of defamation and right of privacy. (Sections 6.2, 8.1, 8.2 and 10.2) Consider a life story rights agreement with your subject if he is still living. (Section 25.3)

Is the production based on an underlying work or on pre-exist¬ing material?

If developing your production from a pre-existing story, image or musical piece, your production may be a derivative work. If the pre-existing material is protected by copyright, and you are not the owner of that copyright, you may need permission to base a new production on the pre-existing material. (Section 17.2)

Did you employ or commission someone to prepare the production?

If the creator is your employee, you own the production as a work made for hire. (Section 19.3.1) If the creator is a freelancer you retained, the freelancer should transfer rights to you through a written work made for hire, assignment or license agreement. (Sections 17.3 and 19.3.1)

Does the production include a depiction of any fictitious characters from other productions (e.g., Scarlett O’Hara, Donald Duck, James Bond)?

Fictitious characters can be protected by copyright and trademark. (Sections 3.3.3 and 21.4)

Does the production include characters based on real people?

Even if the character is only loosely based on a real person or is a composite person, a successful claim is possible if people reasonably identify the character as a depiction of the real person. (Section 5.3)

Does your music production include samples (or clips) from any pre-existing songs or recordings?

Samples normally require the permission of both the copyright owner of the song and the copyright owner of the sound recording. (Section 12.2)

Is the title of your production similar to or the same as another production’s title?

Normally, the title of a single production is not protectible as a trademark and you can use a title even if it is similar to another production’s title. An exception applies if the title has acquired secondary meaning. (Section 4.4.1)

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3.9.4. Works in the Public Domain

People sometimes use the term public domain incorrectly to signify that a work is available to the public. Any book at the store is avail¬able to the public. That does not necessarily mean that the book is in the public domain. For purposes of copyright law, being in the public domain means that the copyright in the work has expired – or that no copyright ever existed in the work. While there is no official list of works in the public domain, there are unofficial lists, a few of which are listed in the Appendix.

Federal Government Works. Works created by federal govern¬ment employees or commissioned as works made for hire are in the public domain. This includes the text of speeches and official papers by federal officials while in office. State and local government works may be protected by copyright. There are a few caveats to the use of federal government works as public domain works:

• If the insignia of the government or an office such as the seal of the President, the seal of the FBI, or the Seal of NASA is integrated in the work, the use may be prohibited by applicable federal regulations.
• If the federal government licensed a freelancer or contractor to create the work, the freelancer or contractor retains the copy¬right unless there is a written agreement that says otherwise.
• An organization that appears to be part of the federal govern¬ment may actually not be. Some agencies are only quasi-gov¬ernmental entities.
• The federal government works are free for use for copyright law purposes. However, depending on the specific material and how you plan to use it, there may also be privacy, publicity and other rights issues that you need to address.

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18.1. Identifying the Rights Owner

Finding the appropriate person to ask for permission is often the most difficult part of clearing rights. Sometimes, you do get lucky and finding the proper rights owner simply requires reading the CD cover, the book title page, or the film credits. At other times, the search for the rights owner leads you smack into a brick wall.

Making the process more difficult is the fact that use of some material may require permission from multiple parties. I refer to those as items with stacked rights. Here are some examples:

• If you use a recording of a song, you need permission from the owner of the recording and from the owner of the song.

• If you use a photograph of artwork, you need permission from the artist who created the artwork as well as permission from the photographer who took the photographs of the artwork.

• If you use a film clip, you need permission from the film pro¬ducer as well as actors, directors, writers and other creative people whose work appears in the clip.

This chapter includes general guidance for identifying rights owners for all categories of media. Part Five provides more detailed guidance specific to the category of material for which you seek to identify the rights owner.

If you use the techniques discussed in this book and still are un¬able to identify the rights owner, you may want to give the project to a rights clearance company or enlist the aid of a copyright search company. If it is impossible to locate the rights owner, here are the alternatives to which producers commonly turn. Starting with the least risky option, your alternatives include the following:

• Use something else. Hopefully, you give yourself enough time for the rights clearance process so that this option is available.

• Rely on fair use. If the material is crucial for your project, try to re-format your use so it is a fair use of the material. Of course, this is not possible for all productions. Consider working with an attorney in re-formatting your use of the material. As dis¬cussed in Section 3.7, application of the Fair Use Doctrine is subjective and fact-specific. There is no guarantee a court will view your use as a fair use. Also, if there are other entities in¬volved with your project – like distributors – they may not be comfortable with reliance on fair use.

• Use it anyway. Some people use the material anyway and set aside an amount for a license fee in the event the rights owner shows up. Currently, there is no good faith exception to the Copyright Act. There is nothing to say that if the rights owner materializes, he has to accept the amount of money you have set aside as a license fee or that he accepts your use and will not sue for copyright infringement.

Note that being unable to locate the rights holder is a different situation from the case in which a producer locates the rights owner, submits a request, and simply does not receive a response from the rights owner.

18.2. Preparing the Request

There are no absolute rules for a permission request. Many large organizations offer instructions or even a form - sometimes on¬line - for your submission of permission requests. Follow those instructions and use the forms when they are available. If you need permission from an organization or individual that offers no such guidelines, you can prepare your own form of request. At a minimum, your permission request should include the following:

• a description of your production (title, producer, short synopsis, etc.)
• identification of the material you want to use
• a description of the scope of rights you need (formats, territories, languages)

23.3. News Footage

Even though news footage typically focuses on public events, the footage is copyrightable and requires a license for use unless your use qualifies for one of the exceptions to copyright protection. See Section 3.9 for a discussion of when permission may not be required to use copyrighted works.

News programs obtain their footage from a variety of services and sources so it is possible that the station or network on which you saw the footage does not own the footage. The station should be able to tell you who does own it. If the news item concerns a widely covered current event, you may be able to find similar footage easily from another stock footage house.

If you have seen specific news footage you want to use, you can begin by contacting the station that aired the footage. A national office or central library may administer and license the footage of all its affiliates. For example, most of ABC’s news footage is licensed through ABC Videosource. These central libraries operate like other large stock footage companies discussed in Section 23.2.