MAKING A FILM
Now that you’re up and running, your film is taking form, but the legal considerations will keep coming.
The product of your creativity and hard work, your film is your brainchild; it needs significant safeguarding, long before you release it into the world.
Copyright law was not, despite popular opinion, initially created to protect artists, but, rather, to protect the public’s right to new ideas, expressions, and art. Today, it aims to strike a delicate balance, acknowledging that new stuff wont be put into the world—and the public won’t benefit—unless its creators are protected and compensated. But this can’t be so strict such that new creators feel restricted in their ability to create.
Certain things aren’t copyrighted—either because the copyright lapsed or because it was never copyrighted at all. The latter category includes works by the U.S. government (e.g. the Constitution), as well as general plot ideas (divorce stinks) or stereotypical characters (nosy neighbor). All are part of the public domain.
Your documentary about Chadwick Boseman includes a clip from a 2003 episode of All My Children. Could you run into trouble? Courts will examine four factors—these are enumerated in the Copyright Act—to determine if this is a new use (aka fair) or if your film constitutes an infringement (a copyright violation).
Depending on the nature of your film—and the way subjects are portrayed—you may want legal protection against potential lawsuits on defamation (false statements), rights of publicity (how someone controls the commercial use of their identity), and invasion of privacy (publicizing derogatory facts that a “reasonable person” would find highly offensive). Remember: you may think your film can’t possibly cause controversy, but producers and distributors may still insist on life rights.
If you’re going to pay people to do things—edit scripts, hold cameras, apply makeup, find locations—you’ll need a work-for-hire contract, which stipulates compensation and services to be delivered.
A copyright gives its owner a bundle of time-limited, exclusive rights over their creative work. While a copyright automatically attaches, it’s always best to register it – and registration is necessary before you can sue for infringement.
Before you submit creative content—whether it’s a solid screenplay or a finished film—the reviewer may ask you to sign a submission agreement. Beware: these generally protect the reviewer—not you—and despite their restrictiveness, you may have to sign. You will, for example, likely be asked to relinquish your rights should the reviewer pass on your idea but wind up producing something strikingly similar to what you shared.
If your film contains any protected creative content—film clips, music, photographs, imagery—you may need third party permission to use it. Distribution companies may not even consider your work unless you’ve got the paperwork to prove you’ve secured proper permissions, rights, or licensing agreements.
Get a big binder. To prove that you actually own your film—and that you’ve secured all the necessary permissions—you’ll need a number of documents to establish chain of title. Together, these will demonstrate that you’ve collected all the requisite proprietary rights to protect your eventual distributor from expensive lawsuits.
* No attorney-client relationship has been created by your access to this website. This website does not provide legal advice and the Filmmakers Legal Clinic is not acting as your attorney.