Guide Through the Legal Jungle

What Does It Mean to Clear Rights?

Clearing rights is an activity conducted by authors, visual artists, musicians, website owners, and film and television producers. Rights clearance issues have even led to embarrassing situations for some well-known politicians.

When you clear rights, you verify that there’s no material in your production that is going to get you sued or prevent distribution of your production. There are other terms used to describe the process of clearing rights. Those terms include vetting the production, getting permission, and licensing.

Even though the process can sometimes be frustrating and time-consuming, there are at least five good reasons why you should clear rights properly. Clearing rights properly involves considering copyright, trademark, privacy, publicity, defamation, and other laws. There are many questions you might ask yourself as you clear rights in your production. Here are a few of them (with links to some blog postings on subjects related to those questions) :

• Can your production mention or feature brand-named products?
  
• Can you mention real people or real events?
  
• Do you need to clear the title of your production?
  
• Do you need a personal release for those appearing in your production?
  
• When you obtain permission, do you need a formal written agreement or can you use a more informal method?
  
• When and how can you quote from text?
  

For more detailed information on rights clearance, I recommend my book, The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions.

Blogger’s Common Legal Questions – Part III

This is the final posting summarizing questions I addressed during a recent panel discussion on Blogging Basics. See Part I and Part II for a discussion of other legal issues that interest bloggers.

Do I Need Permission to Use Other People’s Material on My Blog?

As a general rule, you should obtain permission before using another person’s material on your blog unless you determine there’s an applicable exception to needing permission such as one of the following:

• Use of Material in the Public Domain. Once a copyright expires, the work falls into the public domain and can be used without the copyright owner's permission. Listen to my one-minute explanation of determining whether material is in the public domain.
  
• Use Covered by the First Amendment. If the material is the only source of information and that information is vital to the public's understanding of certain events, the material can be used without the copyright owner's permission.
  
• Copyright Fair Use. The fair use exception to copyright protection allows you to use a reasonable portion of a copyrighted work without permission. There is no bright line rule in determining what qualifies as fair use. Read some examples of how the fair use doctrine is applied.
  
• Parody. A parody is a form of commentary that borrows liberally from the original work in order to make fun of it. In order to qualify as a parody, the work must be a commentary on the original author's work.
  
• Federal Government Works. United States government works created by federal government employees or commissioned as works made for hire are in the public domain. State and local government works may be protected by copyright.

Finding Trouble-Free Material for Your Blog.

When you want to incorporate outside creative material into your blog, consider the following sources:

• Content owners and social networking sites that allow you to embed video and other content into your blog.
  
• Material available under a Creative Commons License.
  
• Stock houses that license images, video, and music at inexpensive rates.

You can find extensive information on exceptions to needing permission and sources for trouble-free materials in my book, The Permission Seeker’s Guide Through the Legal Jungle.

Lessons from Louis Vuitton on the Risk of Unauthorized Product Placements

With all the media attention on the settlement reached between Sean Combs/P. Diddy and Louis Vuitton, I thought this would be a good opportunity to blog about the potential risks of unauthorized product placements.

General Rule about Product Placements

Putting brand name products in your films and other creative products raises trademark questions. Several court rulings say the unauthorized appearance of a brand-name product in your production is okay as long as the appearance does not (i) tarnish the product’s reputation, (ii) draw on the goodwill associated with the product, or (iii) mislead people to believe that the product manufacturer has endorsed or sponsored the production.

However, even if you meet those standards, it doesn’t mean the trademark owner will not still initiate legal action against you if it views your treatment of its trademark as negative.

In the Sean Combs case . . .

Louis Vuitton objected to the appearance of its products and trademarks in videos and album art for Danity Kane, a group released through Combs’ Bad Boy Records label. As part of the settlement agreement, Combs agreed to remove all visual references to the Louis Vuitton trademarks from future releases of the videos and album

A Few Unknowns (at least to me) and Caveats about Louis Vuitton/Sean Combs Case:

• I have not seen the Danity Kane videos and album art so I can’t comment on the extent to which they feature Louis Vuitton products.
  
• The case was filed in France. I haven’t located a copy of the original complaint so thanks in advance to anyone who wants to forward me a copy or link. Anyway, I presume that the case would not have been decided under United States law.
  
• Since Combs decided it was more advantageous to settle, we won’t find out whether a court would have ruled that the use of the Louis Vuitton products was improper.

So while the Louis Vuitton-Sean Combs settlement is not authoritative, the lesson for creative types to take away is that using other people’s trademarks can carry consequences. While, in many circumstances, you may have a First Amendment right to use the trademark, you do want to consider the risks and perhaps seek legal guidance before incorporating trademarks into your music, films, domain names, and other creative endeavors.

Politicians Need Lesson on Proper Licensing and Rights Clearance Procedures

Some embarrassing – and preventable - copyright and licensing issues sprung from the recently-ended presidential campaign. They include Hilary Clinton’s poor selection of stock footage for her red phone ad and Shepard Fairey’s battle with the Associated Press over the inspiration for Fairey’s now famous Obama posters.

The most recent rights-clearance fiasco highlighted in the media involves Senator John McCain. One of McCain’s political commercials used Jackson Browne’s song and recording, Running on Empty. No one asked for Browne’s permission; no one paid him a licensing fee.

It turns out Browne is a huge supporter of the Democratic Party and President Barack Obama and has even performed at rallies for Democratic Party candidates. Needless to say, Browne was not thrilled with the use of his song. In addition to suing McCain and the Republican National Committee for copyright infringement, Browne also sued them for violation of his right of publicity contending that the commercial falsely suggests that Browne sponsors McCain and the Republican Party.

A federal California court denied McCain’s anti-SLAPP motion to get this case dismissed so the case may be headed for a trial. If ultimately decided on the merits, the outcome will be instructive. While political speech – including presidential campaign commercials - enjoys very broad First Amendment protections, there are few authoritative guidelines on the extent to which political commercials may borrow from copyrighted works. The outcome of this case may ultimately tell us that political speakers don’t get a free pass just because a particular work “fits” their message.

In the meantime, operatives from both major parties may want to brush up on proper licensing and rights clearance procedures. Perhaps I’ll contact the Democratic and Republican National Committees about bulk purchases of my book, The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions.

Can You Use Real People in Your Book or Film?

I’m often asked by writers and producers if it’s okay to talk about real people in a book, film, or other creative project - if the names are changed.

 

Changing the Names Is Not Sufficient

 

“Do the names need to be changed?” is not the best question.  The more relevant question is whether the real people mentioned in your creative work are identifiable.  You can identify someone even without using the person’s real name.  For example, your readers or viewers might be able to identify the person through your mention of a nickname, geographic location, physical description, personality trait, or real-life events in which the person was involved. 

 

If readers and viewers can identify the person discussed in your work, there is potential risk for defamation, privacy, and related claims.  You should assess that risk and make your best efforts to minimize it.  

 

Calculating the Risk of Using Real People

 

Your risk assessment will depend on several factors such as

• How did you acquire the information about the person?
• Are you adding fictional elements to any of  the real-life events discussed?
• Are the portrayals flattering?
• Are the portrayals accurate?

Your risk assessment also depends on whether the people in your story are public figures or private individuals. Public figures have fewer privacy rights but stronger publicity rights. Also, to make a successful defamation claim, public figures must prove you made the false statement with actual malice. In contrast, a private individual need only prove you were negligent in making the false statement. While the distinction between actual malice versus negligence may sound like legal gobbledygook, the distinction often plays a pivotal role between winning and losing a defamation lawsuit.

 

My book, The Permission Seeker’s Guide Through the Legal Jungle, offers an in-depth discussion of defamation and privacy issues from the perspective of authors and other creative producers who want to stay out of trouble. The book also offers guidelines for minimizing the  risk of defamation, privacy and similar claims through the use of annotated manuscripts, disclaimers, releases, and life story rights agreements.  You can view the full table of contents for The Permission Seeker's Guide Through the Legal Jungle here.

Marketing & the Law: Operating a Contest for Original Videos and Other User-Generated Content

While perusing the online Wall Street Journal, I came across a top story in the small business section: “Online Video Contest Gets People Talking” by Simona Covel.  It relates the marketing success of Interwrite Learning, a maker of classroom technology tools, at using an online contest.

 

Interwrite invited teachers and students to send in videos of themselves performing their favorite songs, rewritten with new lyrics expressing the importance of technology in their classrooms.  As a result of the contest, Interwrite received more than 200 videos which it posted online for comment, collected 27,000 leads, and increased its website traffic from 7,000 hits a month to 7,000 hits per week during the six weeks of the contest.

 

While the Wall Street Journal article discusses the federal and state sweepstake/contest rules applicable to the Interwrite promotion, there are some additional legal issues not mentioned in the article of which companies hoping to emulate this marketing technique should be aware.

Tips for Naming Your Film, TV Programs and Books from Hari Puttar vs. Harry Potter

Warner Brothers, which owns the rights in the Harry Potter motion pictures, unsuccessfully tried to block release of the Bollywood film, Hari Puttar: A Comedy of Terrors.  While Warner Brothers succeeded in delaying the originally planned September 12, 2008 release in India, a New Delhi court ultimately dismissed the lawsuit.

Even though the Hari Puttar lawsuit was decided under Indian law, the case provides a good excuse for me to discuss selecting titles for your films and television programs.  Your title can raise objections from a producer with a similarly titled media production or from a trademark owner whose trademark finds itself in your title. 

Borat Producers Know the Importance of Personal Releases

Say what you want about the 2006 film, Borat, and its low-brow, often vulgar humor. You have to admit the Borat attorneys know their way around a personal release.

Numerous people who appeared in the film have sued for right of privacy and similar violations. To my knowledge, the Borat producers have triumphed in every lawsuit. That’s because each participant signed an apparently bullet-proof written release waiving the right to sue in connection with their appearance in the film. You can read one of the most recent Borat court decisions here.

Did the Borat Producers Play Fair?

Is Permission Via Email Okay?

It’s the internet age and many permission seekers wonder if it’s okay to get permission via an email exchange rather than via a more formal document. All contracts do not have to be in writing. Many oral agreements can be binding. In cases where an oral agreement would suffice, I would be comfortable relying on an email.

The grant of a non-exclusive license does not need to be in writing (although there may be circumstances in which you still want the non-exclusive license in writing). When you seek permission to incorporate third party music, text, artwork or other material into your production, you are usually – but not always – seeking a non-exclusive license.

There are other contracts that by law must be in writing in order to be effective. They include contracts for things such as:

• the grant of an exclusive license in a copyrighted work
• the transfer of a copyright, and
• the creation of a freelance work as a work made for hire.

For those contracts that must be in writing, I advocate a more formal agreement than an exchange of emails. There is at least one court that has ruled that an exchange of emails does not satisfy the requirement that the transfer of a copyright must be in writing. As we become more reliant on digital communications, that court attitude may change - but I wouldn't want to be the test case.

Using Quotes to Open Book Chapters

Book authors often like to use a quote from another literary work at the opening of their book chapters  The question is whether using quotes in this way is a fair use. There is no bright line rule to determine what qualifies as fair use. Instead, courts use a four-factor test to make the determination. No single factor is determinative.

Using quotes at the beginning of your book chapters has to go through the same four-factor fair use analysis as any other material you want to use without authorization. Here’s my attempt at a fair use analysis for quotes used to open book chapters. This analysis is “generic” and will not apply to every quote to be used or every work in which an author wants to use a quote. An actual fair use analysis will differ according to the specific circumstances of each given case.

Factor One. How are you using the copyrighted work?  For example, is your use for-profit or non-profit? Is your use transformative?  Your use of a copyrighted work is transformative if your use is creatively different from the way in which the copyright owner used it.  If you’re using the quote to illustrate a point in your instructional publication or commentary, that might qualify as a transformative use.  On the other hand, it may hurt your chances for fair use if a court concludes you are using the quote only as a method of “ornamenting” your book.

Factor Two.  What is the nature of the copyrighted work?  Not everything is eligible for copyright protection. For example, there is no copyright protection for extemporaneous speech (that’s not recorded) and public domain material. Fact-based works like an encyclopedia have a lower threshold of copyright protection. At the other end of the spectrum, very creative works like song lyrics, poems, and feature films receive the maximum amount of copyright protection.

Factor Three. How much of the copyrighted work do you use?  There is no set amount of a copyrighted work that guarantees fair use. However, it is true that the less of a copyrighted work you use, the more inclined a court will be to view your use as a fair use. A quote of ten words may be a significant portion of a song or a poem but a relatively insignificant portion of a ninety-minute movie or 250-page book.

Factor Four. Does your use harm the copyright owner's ability to market the work?  The use of the quote at the beginning of the chapter is unlikely to stop anyone from going to see the movie, reading the full book, or purchasing a copy of the song. However, courts also often look at whether you have deprived the copyright owner of the license fee that it could have obtained from granting a license for the use of the quote.

Yes. I know the analysis is wishy-washy – but that’s the nature of fair use.  Often, the decision of whether to rely on fair use comes down to a judgment call and/or risk assessment.  There is always some level of risk when using someone else’s copyrighted work without authorization.