Do you know your clearances?

Do you know your clearances?

On Behalf of | Oct 22, 2021 | Entertainment Law |

If you work in the tv and film industry, you may know that there are multiple intellectual property (IP) rights in a single work. If a producer uses an author’s work without their permission or without being allowed by the law to do so, the author can sue them. Because of that, you must know for which works you need a license and which ones you can use without doing paperwork.

The anatomy of a movie or episode

Producers tend to focus more on the shooting or editing of a work than on its legal aspects. This is a big mistake that can result in the failure of the sale or distribution of a work. One of the many things that a producer must ensure is that all the IP elements they use in their work are cleared, even the smallest ones. Having clearance means that they have the necessary permissions or legal backup to avoid facing costly IP infringement lawsuits from third parties.

When you need clearance

As a producer, you must have permission to use the works owned by third parties. You must identify each element that makes up your film and determine for which ones you might need a license, written permission or nothing at all. The three main types of clearance that you’ll need are:

  • Trademark clearance: you’ll need to have permission from a company if you use or show their trademark in your movie or episode, especially if you show the brand in a bad light.
  • Copyright clearance: the production must have the rights or permission to use all the creative works that will appear on the final product, including the script, the musical recordings, photographs and audiovisual works.
  • Right of publicity: using a person’s identity without their permission is illegal. Because of that, everyone who is recognizable in a scene must sign a consent before the film’s or episode’s release. Otherwise, they could sue the production for defamation if they misuse their identity.

If the film or episode includes a third party’s work, the production must ask permission to use the work or establish a licensing contract. The licensing contract must specify for how long and where the production will display the work and how they will credit the original author.

When permission is not required

Every work of art needs clearance, but producers don’t have to ask for permission for certain elements. If they hired someone to create a work for them, and that person signed a consent form to give them the work’s rights, then the right of the work belongs solely to the production. In other circumstances, the producers can use the unlicensed copyright of a protected work. A person can use the rights of a work without permission from the right holder if:

  • The use of copyrights is for criticism, comment, news reporting, teaching, scholarship and research
  • The use of copyrights is not of a commercial nature
  • The use of copyrights will add something of purpose or new to the original work
  • The use of copyrights does not harm the existing or future market for the copyright’s owner original work
  • The production uses a small portion of the copyrighted work

You must know that the court evaluates different factors to determine if the use of rights is legal. Every case is unique, and the producers must talk to an attorney to ensure they have clearance for their work.

Legal protection

Producers must make an inventory of all the literary, visual and auditory elements that they will use in their final project and ensure they have the rights or permission to use them.  If they don’t do this, they could face a costly suit in the future. Producers must comply with the law. Otherwise, they risk suffering a great monetary loss.