Clear It or Ditch It!

BY:  Tifanie Jodeh

The script, all script revisions, and every item to be used as a prop and/or set dressing must be cleared.  

Rule of thumb:  You either clear it or ditch it!  This rule of thumb should be applied to each and every clearance issue and item under review for use in a film.  It's best (and cheaper) to do this BEFORE you start shooting.  If you aren't able to get it cleared, then you know not to use it.

I recently conducted clearance review on a film (already shot) and identified for the producers some items which had clearance exposure and risk.  One particular troublesome issue was the use of a major airline's webpage in a scene.  The use of the website was a key point in the scene.  While I was successful in obtaining permission for the use, it took approximately 1 month to get all the required approval from the airline and a volume of correspondence regarding the use of the airline's logo in the scene and in the film.  

“Clear” means:  for script elements (discussed below) that, following legal review and research, that there are no legal issues, or in the case of other items (as discussed below), that proper written authorization has been obtained for the use. 

Below, find a list and examples of the most commonly items cleared in a film:

Literary Works:  Literary works, which include books, short stories, film, television programs, art work, fine art, still photos, among other things, must be licensed.  

The Script:  All drafts of the script and any material revisions needs to be researched by a professional script clearance company and reviewed by your attorney who will provide recommendations for changes to the script in order to avoid exposure. 

News and/or Stock Footage:  News organizations can license the footage that they have shot at press conferences to other entities.  But, any people who appear in the shot, for example a news anchor, will have to be separately cleared.  

Locations, Buildings, and Installations:  Examples Include:  Parks, cemeteries, office buildings, promenades, and homes.

Photographs:  Still photos fall into several categories:  These include:  Publicity Photos (photos for publicity in a film); Production Stills (photos taken on behalf of the production on the set of the motion picture or TV); Film Posters; Paparazzi Photos; and Magazine Covers, Website Front Pages, Book Covers involve three layers of clearance: 1) the magazine, 2) the photographer who took the photo and 3) the person who appears in the photo.

Music:  Hire a good music supervisor!  No on-camera use of music in any form (including humming, whistling, reciting of lyrics in dialogue or otherwise) can be used unless it has been cleared.  To the extent non-original music is used, the music supervisor or whomever may be required to obtain two forms of licenses:  Synchronization license and Master use license. 

Apparel/Products/Logos:  Featuring a product, service logo or trademark (a Nike logo on a shirt) must generally be cleared.  If a product has not been cleared, then caution must be exercised as to how it is used in the film, it cannot be featured or used or referred to in a derogatory manner.  Items such as groceries (Coolwhip), candy (Willy Wonka), chips (Doritos), drinks (Red Bull), health (Advil) and beauty products (Maybelline) should be cleared or created as something original by the props department. 

Props/Production Design:  Examples include: Publications (magazines, newspapers, book, articles); Paintings and Fine Art; Posters, Record Covers and CD Covers; Graffiti and Tattoos; Games, Weapons, Vehicles and Toys; Logos and Trademarks.

Motion Picture/Television Clips:  It is recommended that any excerpt from a feature film or television show must be licenses from the copyright holder and an agreement negotiated for payment for use of the clips(s).  Note here that special consideration must also be taken for SAG/AFTRA and/or DGA reuse rights of any actor appearing in the clip.  

 Youtube/Online Clips/URLs/Websites:  It is a misconception that because these online sites are public, that the content is open and free to use.  In fact, this is not true and permission should be obtained.  

Contact our office with any questions or production legal needs you may have.  We are available for phone consultations by appointment.  Contact us at asst@entlawpartners.com

COPYRIGHT & DISCLAIMER

Tifanie Jodeh is Partner at Entertainment Law Partners dedicated to corporate, business and entertainment affairs.  You may contact her at Asst@entlawpartners.com.

Tifanie Jodeh grants column recipients permission to copy and distribute this column and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.

DISCLAIMER: Readers should consult with a lawyer before solely relying on any information contained herein.