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.

Endorsement Deals- What is a Morals clause?

It is an ongoing newsworthy story when scandals relating to stars, such as Paula Deen, Lance Armstrong, and Tiger Woods, who make high amounts of money in endorsement deals simply by being public figures, are ripped away from their endorsement deals in the blink of an eye. Many of you may wonder how it is so easy for product placement companies to legally bid "adieu" to endorsement deals with their celebrities.  

Endorsement agreements between companies (such as Walmart, Macy's, Verizon, and Nike) and celebrities can be high profit, high volume business ventures.  These companies rely on the persona and high profile image of their endorsers to positively attract attention to their products.  This could be either endorsements of a particular product, say, Taylor Swift for Diet Coke, or for an entire company such as Adam Levine for Proactiv. 

One of the most important tools for any company to have is the ability to protect their brands and intellectual property.  In order to achieve this protection, companies include very specific clauses in any endorsement contract which are intended to give companies the ability to terminate the endorsement and even possibly recoup payments previously rendered to the celebrities.  Morality clauses are deeply negotiated because, on one hand, the celebrity wants as much specificity as possible when having their behavior judged while companies want to judge and interpret the contract in a fluid, sole discretion manner.  A well drafted morals clause clearly delineates the standards of conduct and what the repercussions will be if the endorser's actions are out of line.  Clear trigger points and adherence to the company's code of conduct and/or company policy is a good starting point to drafting the morals clause in an endorsement contract.     

What happens if a company feels that their celebrity endorser breached the morality clause?  A company's course of action not only affects its current business but its societal position. After evaluating the violations that took place, it is up to the company to decipher termination vs. reaction from the public.  It could be as small as doing nothing and letting the incident die off to as much as making a public statement against the celebrity and terminate the agreement. 

An entertainment attorney can play a crucial part in the negotiation and administration of a deal.  The deal making process needs to be understood by knowing what the company needs from an endorser and having a practical handle on what a celebrity can deliver.  

Marketing is an integral piece of both a celebrity and company's success.  It is in the interests of both parties to maximize their brands and add value in order to gain a high presence in public commerce.  Neither party wishes to have the morality clause triggered, but if it does, the clause should be specific, clear and encompass the company's best business practices and protect the celebrity's persona. 

COPYRIGHT and 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.