Legal Ease Live!
Can you use that popular song in your film? Can you write a script about someone living? And what about contracts — does that scribbled note on a napkin count? When it comes to the art of filmmaking, the legal road is paved with questions. Legal Ease, our advice column on legal matters pertaining to the entertainment industry, seeks to answer some of these questions.
Entertainment attorneys Matt Galsor and Ken Basin from the firm Greenberg Glusker recently brought their legal expertise to Film Independent members live and in person, giving an interactive talk to a room full of filmmakers which included producers, directors, writers and even lawyers. Here are some legal tips from the conversation:
My fictional script features real living people. What should I be mindful of?
“The artist mentioned can only sue you if you defame them onscreen,” said Galsor. “If you make something up that is realistic and believable that involves living people, then you may get into a defamation case. But a public person can be referred to as long as you’re not defaming them.”
Basin added, “it’s only defamation if you’re saying something untrue and damaging to their character. For example, you could just say, falsely, that someone collected stamps. Even if that’s untrue, it may make them seem dull, but it’s not damaging to their character, so it isn’t defamatory.” Additionally, if you’re writing a story about a living criminal, “and a lot of information is on public file, it’s probably okay to use that information,” Galsor said.
My script is based on a historical figure. What are the boundaries of artistic license when it comes to deceased historical figures?
Be careful of what historical information you use and how you use it. “Famous historical figures have hundreds of books written about them and you can’t lift dialogue and descriptions or chapters from a book without the copyright,” said Galsor.
Basin continued, pointing out that “facts are fair game, but if a historian fills in the gaps or embellishes or uses his own unique take on historical research, then lifting that material from a book is not fair game, and the author may try to claim some proprietary interest.”
What if a producer joins a project without a contract and things take a bad turn?
“They can talk to their therapist or their friends about it,” Galsor joked. “But what legal recourse do they have? Not a lot. Unless you have worked with the team before and know whom you’re dealing with, and even then there are no guarantees,” then you are setting yourself up for trouble. These kinds of cases are unfortunately “very common and very difficult to pursue,” said Galsor.
“Contracts can be formed in an email, on a napkin, etc. You can have a breach of contract without a signed document,” Basin added. However, he emphasized that “it’s another question whether you have the time and money to fight it.” Basin recommends protecting yourself while also avoiding seeming mistrustful to your colleagues, such as by sending casual confirmation emails. Another way of covering yourself is always taking notes. “After you have an important conversation about a project, write a note on a napkin, date it, and stick it in a drawer,” said Basin.
What if a writer provides creative contributions to a script without a contract?
According to Basin, “the most important factor is who controls the rights. If you have been working on the script and doing re-writes, then you can say that they can’t use your creative contributions. Unlike other contracts, contracts that transfer an interest in a copyrighted work have to be signed and in writing,” Basin added.
When using brand products, what are the legal pitfalls?
“Does what you’re doing get to the point where people will wonder if you got permission, or are sponsored or endorsed by the brand?” Basin asked. For example, if a character is drinking Coca-Cola in a cafeteria, there is no cause for legal concern. But, “if the whole story revolves around a character who is a scrappy worker in a Coca-Cola factory who rises to the top of the company, then you may have some problems.” Many brands are trademarks, so using a trademarked product is not breaking copyright.
Basin added that copyright clearance can be a lot more demanding than trademark clearance, and that a poster can be onscreen for “literally two seconds and lead to a lawsuit. You’ve got to be really careful with copyright.” In today’s world of digital postproduction, there are some solutions to covering up unwanted branding. If filmmakers are “shooting on the street and a billboard is there, they will often replace it digitally,” says Galsor.
By Lee Jameson / Film Education Coordinator
December 18th, 2012 • 1 Comment