Do You Have to Blur a T-Shirt Logo in Your Film? (and 4 More Useful Legal Tips for Indie Filmmakers)
We constantly try to find ways to ignite our creativity, give birth to projects, stories, and films; and that in itself feels like a pretty high mountain to climb. So naturally, we tend to push out of focus the legal aspect behind our actions.
In 2009 I took a low-budget filmmaking night class at UCLAX with Duncan Roy and the first advice he gave was: If you’re going to spend money on one thing, make it a lawyer. (I am paraphrasing, my memory is not that good).
It always feels like every penny (and then some) is needed to make a film, but with time and mistakes, I can now say that an Entertainment Attorney is someone you want to have a conversation with, whatever your country, if you’re planning to pour months or years of your life into making a creative project named film.
With that in mind, until you get the budget for, or if you want to start educating yourself a wee bit now and for free, Film Courage just released a series of very interesting and useful interviews with entertainment attorneys Lisa A. Callif & Michael C. Donaldson, who are specialized in representing Indie Filmmakers and just so happen to have released a book on Clearance & Copyright.
I haven’t read it yet, but would in a blink if I was working on a U.S. based project at the moment.
Here are a few selected legal tips:
#1 – Do You Have to Blur a Logo on a T-Shirt?
You know this unpleasant feeling when you watch back footage you shot and start wondering about this little Logo on your friend’s t-shirt? Well, no need to panic, you can leave it there, nobody will ask you money for that.
Here is what Califf says: “You may want to [blur the logo] because maybe you want that brand to give you money for product placement, but legally, you have every right to use that trademark in a manner in which it’s intended.”
#2 – Does Everybody Need to Sign an Agreement?
Anybody who holds a camera, anybody who has arguably any kind of creative contribution to the film owns the copyright to that contribution unless there’s a writing that says otherwise.
Yes, yes, and yes. What Donaldson & Califf stress out is that the main mistake filmmakers/producers do is not ask every person who is attached to the project to sign an agreement. It’s particularly tempting to avoid doing it when you shoot a film with friends over the weekend, but wait until the film gets selected to Festivals and you have to clear rights to start seeing problems arise.
Califf’s input: “Anybody who holds a camera, anybody who has arguably any kind of creative contribution to the film owns the copyright to that contribution unless there’s a writing that says otherwise.”
So it’s not just about the actors. Anyone whose actively participated to help making your film owns a bit of your copyright, unless they’ve signed a For Hire paper. To keep in mind.
#3 – If I Use Under 30 Seconds of Footage or 6 seconds of Music, I Can Avoid Paying Licensing Fees Because It’s Fair Use, Right?
Turns out there are two answers to that: no and maybe. Basically, Fair Use is not about the length of what you are using, but is about the justification behind your usage.
Maybe let’s start first with Fair Use’s definition. Califf says that Fair Use is “A person’s right to use a limited amount of copyrighted material without permission from the copyright holder. And that word limited I think is really key, and also it needs to be used for the purpose of comment or criticism.”
To take a practical example, Tony Zhou, Kevin B. Lee, Kogonada or any video essayist can use extracts from films and avoid paying licensing fees because the videos are for educational purposes, and fall under Fair Use. And not because they have used less than 30 seconds of images. In other words, Fair Use is much easier to use as an argument for documentaries and essays than fictions.
Donaldson & Califf also mentioned that when well used, Fair Use can save filmmakers thousands of dollars. So if you are making a documentary and wondering if your budget will cover all your licensing fees, consider meeting with an entertainment attorney and see what could be waved under Fair Use.
#4 – Do I Need to Have a Legal Agreement with My Co-Writer?
Pay attention friends from all over the world, this advice is likely to apply to everybody, everywhere. And the answer is: Yes. Clarify the business side of things before you start putting one word on the paper.
I know that’s really easy to say, but having had legal troubles with a ‘friend’ turned megalo, I was very happy to have a contract and a lawyer, and I can only confirm what Donaldson & Califf say here.
When you start co-writing a screenplay, you often just worry about making a good script and the legal aspect of the partnership seems like a detail that will be solved when the time comes.
But here are a few reasons why you might want to consider taking care of it: you might disagree on where to take the story during rewrites, you might disagree on whose name should appear first on the credits, you might disagree on a possible deal with a company, you might disagree on whose idea it was first, or how much each of you ‘own’ of the script etc.
So there are a lot of ways a creative friendship can go south, and there are two ways to either reduce or eradicate those risks and they are:
- by putting it down by email. It’s not a legal agreement, but having everything written down and acknowledged by both parties is a step toward easier conversation in the future. (= reducing risks)
- by having a legal agreement. (= eradicating risks)
Here is Donaldson’s advice on how to kickstart this conversation:
“Before we actually start writing, maybe we should talk about the business side of our relationship. Whose name will go first on the script? Are we going to be fifty-fifty owners? etc”
#5 – Do I Need to Get Life Rights to Work on a Based on a True Story Screenplay?
Ha. Now that half of the films are “Based on a True Story”, this one might interest many of you. The answer is a two-stops one.
From a legal point of you, you don’t need to acquire Life Rights:
“Legally, no. You do not need to get those rights. There are a whole host of good reasons to get them, to get what we call Life Rights, or even a release from that person, but legally we all have a right under the first amendment to tell a truthful story. So if that story is truthful, which, if you don’t have the rights from that person, we have to make extra special care to make sure that it is, you don’t need any rights from that individual.”
But here are the three reasons why Califf adds you should still get them:
- “To reduce liability. Just because the law is on your side doesn’t mean people won’t get upset about something or think that they should have gotten their rights acquired.“
- “A delivery issue. If you plan on delivering it to a big Studio they like to see those types of agreements in place. Again, because of the risks.“
- “Also you might want to have access to that person. They might have journals and pictures and access to other people that you want to interview or conduct research with, and they can provide that access. So there’s a lot of good reasons to get Life Rights. But legally you don’t need to.“
If you found those tips useful, I encourage you to watch all the videos below and also to check out the fifteen tips about Distribution, that very much complement this conversation.