Clearance of Rights
The film is in the can and you are ready to see your DVD in Wal-Mart’s across the country. Not so fast. Prior to inking that distribution deal you must face the dreaded clearance of rights. Many first time filmmakers do not think about clearance issues until they receive an E&O insurance quote with a laundry list of requested legal documents. From there, the barrage of questions begins. What’s a script clearance report and how is that different from a copyright clearance report? I need a title clearance report and a chain of title – isn’t that the same thing?
Savvy producers know that clearance issues are best dealt with early and often. Here is a quick primer on the various clearance issues at play and the documentation necessary to satisfy those insurance brokers.
Script Clearance Report – This report is produced during the pre-production stage. An entertainment lawyer (or other qualified party) will review the final shooting script looking for any and all potential clearance issues, such as possible copyright or infringement areas, and highlight those for the production company. The goal of this report is to put the production company on notice of any potential issues so they can be resolved in advance. No rights are actually cleared or secured as this stage, but the report provides the producer with a list of what needs to be cleared, such as film clips or artwork. The report also may identify potential trouble spots. For example, if your main character is a prostitute named HILDY BOTTOM and she lives in Cleveland with a phone number of 216.222.2222 and there just happens to be a HILDY BOTTOM living in Cleveland with a similar telephone number, you have a problem. Having this kind of information up front allows a producer to make smart, creative decisions with the script.
Film Clearance Report – This report is similar to the script clearance report, but here the review is of the final cut of the film, rather than the script. The report identifies locations, logos, film clips, artwork, etc. that need clearance. As a general rule of thumb, releases are not necessary when the property is considered “incidental background” or is non-identifiable. Sometimes this requires a judgment call, with the most prudent practice to be to error on the side of obtaining a release.
Clearance of film clips can be particularly laborious given the range of needed permissions. These include releases from the copyright owner, to all people appearing in the clip (union vs. non-union), and potentially musicians, or underlying rights owners to the musical compositions.
Chain of Title –A film’s chain of title is the unbroken record of ownership in the legal rights to the film, including copyrights. A chain of title identifies the origination of the copyright in the film and underlying property (such as the screenplay) and any transfer or assignment of those rights. The report helps to identify any breaks in the chain of title. Insurance providers, distributors and others will require a complete chain of title.
Good documentation on the front end helps ensure that the production company does not hit any roadblocks as it nears the finish line. In other words, make sure all necessary documentation is in place before the cameras roll. This includes (1) tracking down all copyrights in any source material; (2) drafting and executing proper contracts, assignments and IP transfers; (3) registering the script and film with the United States Copyright Office; and (4) recording copyright transfers and assignments with the Copyright Office.
Copyright Clearance Report – A copyright clearance report recaps and expands upon the information found in a chain of title. The report will include copies of all relevant agreements, assignments, transfers and registrations as proof that the film has a clear title and that copyright ownership is vested in the production company. The copyright clearance report also will include an opinion by an entertainment lawyer that based on all of the information provided, the copyright in the film is clear and there are no breaks in the chain that need to be addressed.
Title Report – This report identifies all of the films, books, songs, plays and other works, that bear the same or similar titles to yours. Thomson CompuMark provides a comprehensive U.S. Full Title Search for $750 (with a three-day turnaround). Often times, insurance providers will require a legal opinion to accompany the report that states whether the title is available for use.
Many producers believe that when they register their film with the U.S. Copyright Office, the title is protected too. Not true. Titles to single creative works, such as films and books, are not copyrightable. Like other short phrases, slogans and names, titles do not have sufficient original content to necessitate protection. Titles, however, may find protection under trademark laws. For example, a title that has achieved “secondary meaning” in the marketplace may seek registration with the United States Patent and Trademark Office.
If you are a signatory to the MPAA, you can register your title and preclude other MPAA registrants from using the title. The MPAA only affords protection to those who have signed the agreement which includes all the major studios and many of the larger independent production companies. Although the MPAA provides protection for signatories, there is reason for smaller production companies to abstain from registration. The MPAA is funded by major studies and the arbitration panels that decide disputes are largely comprised of arbiters from the major studios, thus creating a potential bias for the studios.
For assistance in preparing any of the above reports, or if you have any questions, please contact Stacey Davis at The Law Firm of Stacey A. Davis, LLC, 205.777.9906 or firstname.lastname@example.org.