"The industry custom of obtaining 'clearance' establishes nothing other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits."If there's an issue which is often confused by producers, actors, and the general public...it's copyright vs. trademark.
The point being: producers clear a lot of stuff they don't need to through - among other things - ignorance or false assumptions regarding their First Amendment rights of expression, the Fair Use principles which follow from the Constitution, and a failure to differentiate between Copyright and Trademark issues.
This costs productions money, time, and establishes a culture where clearances become the rule... rather than following from an understanding of fundamental rights of expression, and correct analysis of risk.
So let us differentiate a bit here. I was fortunate to attend a special seminar on Fair Use principles for CLEAR, Inc. (association of research and clearance pros) here in LA, with special guest Alonzo (Al) Wickers, of Davis Wright Tremaine. As an entertainment lawyer who consults on a variety of hit TV shows and high profile film projects, Mr. Wickers has his pulse on a lot of the copyright and trademark issues of greatest interest to producers and their business and support staff. I want to sum up a few of the salient points from that seminar (and add a few of my own).
Copyright is a Constitutionally granted right, which flows from Article 1, Section 8: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
What's copyrightable:
Writings
Visual art
Music
Choreography
AV works
Maps
Not copyrightable:
Ideas
Single words
Short phrases
Corporate logos (trademark)
The above tells you not only what you need to "clear," therefore, but what you don't.
Where it comes to Fair Use in copyright, there are no bright line tests (eg "less than 10 seconds"). There must be a case by case assessment.
Some of the principles involved are:
Purpose of use - Commentary, criticism, parody, reporting
Nature of work -
Published vs. unpublished - unpublished have greater protection because creator is supposed to have right to first publish
Creative vs. factual - anything that took creative effort gets greater protection
Amount used
Effect on market
A great website for Fair Use is the one created by the American University Center for Social Media, which relates to documentary fillmmaking, primarily. Nonetheless, their analysis points and codes of best practices apply to all Fair Use arguments, and it's a great resource. I believe that most producers would do well to spend some time studying the general principles of Fair Use, particularly in light of some recent cases where it's been successfully and poorly argued - one would think they would know better. (Carol Burnett v. 20th C Fox case, the former...Hangover 2, the latter... both cited in this blog).
Bottom line: You do your analysis and decide whether you have a Fair Use argument before you decide to reach out, or not, to seek a permission or license.
Trademark protection is established primarily by the Lanham Act in the US, "a piece of legislation that contains the federal statutes of trademark law. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising."
There are some important distinctions between copyright and trademark violations, from a producer standpoint. A key one is that copyright violations are subject to injunctive relief by courts. That means that a big picture can be shut down, fail to open or release to DVD as planned by a court action granting that relief to a plaintiff.
It may not happen often, but it can happen. See the recent "Hangover 2" story on this blog for an example of threatened injunction… needless to say it makes the producer position for negotiation a bit strained when the possibility of an injunction is hanging over the studio's head.
Conversely, trademarks appear on products to be seen…. they are a protection for the owner, but they are also a perpetual ad for its products: the Nike swish, the Starbucks logo, the apple of Apple proclaim the product as what it is. And further, "buy me!"
A key factor in using them in expressive works, then, is whether they appear for their intended use or one that is not intended. Thus, fair uses of products in TV and film would include such things as:
newspaper or mag titles in dialog
cars in car chases
clothing, shoes
appliances, electronics
ipods, ipads
As long as only enough of the mark is shown as is reasonably necessary (or incidental) to establish that it is a "coke", for example, and that no implication of sponsorship or endorsement is present… such uses are protected by the First Amendment in expressive works (NOT commercial uses, like T-shirts or other merchandise).
Tarnishment of the mark - using it in a defamatory way, or one which creates an unfavorable association, is one way to dilute a trademark. Blurring a mark, causing it to lose its unique identification, is another way to dilute it.
The Trademark dilution act of 2006 - limits dilution to primarily commercial cases, not expressive works.
Hence, this artistic commentary on "Barbie" - Stir Fry Barbie - is protected, as an expressive work.
Furthermore, exemptions exist (as in all Fair Use) for parody, comment, criticism. In the case of Carol Burnett v. 20th C Fox, the plaintiffs alleged not just copyright infringement but a violation of the Lanham Act, as regards trademark infringement. (Burnett lost):
"An episode of the TV cartoon "Family Guy" made fun of comedian Carol Burnett's image and signature characters from her 1960's comedy variety show. In Carol Burnett v. Twentieth Century Fox, the court ruled that the show's use was fair, in part because the "Family Guy" episode was designed to parody Burnett as a public figure, using a relatively small percentage of copyrighted material, and would not substitute for the original in any market."
The case was dismissed under the "Anti-SLAPP" laws here in California: "A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition."
Here's a summary of the case from the California Anti-SLAPP Project's website: "In response to this Family Guy clip, plaintiffs Carol Burnett and Whacko, Inc., filed this suit against defendant Fox for: (1) copyright infringement; (2) violation of the Lanham Act, 15 U.S.C. § 1125; (3) violation of California’s statutory right of publicity, Civil Code § 3344; and (4) common law misappropriation of name and likeness. Defendant now moves to dismiss plaintiffs’ claims. Defendant also brings a special motion to strike Burnett’s supplemental state law (claims) under California’s anti-SLAPP statute, California Code of Civil Procedure § 425.16." Whacko, indeed, as it turns out.
Product Placement has changed the trademark landscape to a degree, because the public (and producers, and trademark owners) now may grow to assume that the casual appearance of a product implies an endorsement. This might relate back to the over-clearance argument which opened this discussion. It has its downside.
However, ad sales departments of networks are often far more conserned about keeping national brands out of its shows (to avoid alienating potential advertisers) than Legal departments at the same networks. Again, these trademark issues have more to do with relationships and not stepping on toes than on actual legal infringement.
Producers tend to know who the really obnoxious trademark holders are, and tread carefully.
Circling back to the quote from Polydoros v. 20th Century Fox Film Corp:
"The industry custom of obtaining 'clearance' establishes nothing other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits."
As long as Wisdom exists, then….one can reasonably expect that Clearances will never go away, nor should they. Having a diligently laid paper trail, knowing the comfort for risk of the production team or studio or distributor on the project, and having a savvy legal and clearance team - all can save a lot of cost, unnecessary clearances, and a possible injunction that would be the nightmare no producer wants to ever experience.
Producers, ignorant of their rights, who then "clear everything..." help establish a climate where everyone expects everything to be cleared, always.... driving up costs.
Real wisdom (as opposed to acting out of fear, or superstition) in clearances would begin with an understanding of some of the basic principles which govern our expressive rights. Knowing the difference between Copyright and Trademark infringement is a good place to start with such wisdom, and I hope this blog article helps shed some light therein.
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