Intellectual Property + Creatives & Industry Issues
Common Legal Issues
for creatives and the creative industry.
We recently sat down with Matt Rogers at FilmLaw.co to discuss legal issues he sees with creatives specifically around industry issues. Below you will find the conversations that were had between CORE’s Christian Brim and Attorney Matt Rogers of FilmLaw.co
Christian Brim
What is the most common issue that you have to solve with your clients?
Matt Rogers
Their number one intellectual property issue is licensing other footage from other films or news or even music and other copyrighted works. On one hand, there's the straightforward process of just going forward and licensing the material from whoever owns the copyright. That has a lot of benefits because you can get the high-definition file from them, you don't have to record it off the Internet. To the extent that a filmmaker can do what is known as fair use of otherwise licensable copyrighted material is often a big question.
Christian Brim
Okay, so what is fair use?
Matt Rogers
Fair use is not my main practice focus, but I know enough to get in trouble. I usually work with filmmakers on issues like corporate entities and business decisions and employment and distribution deals, and on financing agreements. I also work with them on the IP issues and the fair use concerns. However, there are attorneys who only focus on IP and fair use. Their whole practice is to go through every clip on the film and determine whether something is fair use or not.. With that caveat, I've been through the process quite a few times and just went through it on a film that I just produced. From my perspective, and this is just the very basics of what fair use is.
So, fair use is a statutory addition to copyright law. We first need to answer the question of what is a copyright?
A copyright is the ability to have the exclusive use of a copyrighted material. Copyrighted material being anything and any work that is original and put into a fixed format. You can register your work with the US Copyright Office, which gives you many benefits, but the minute you come up with your script or book or article or blog post or whatever, that's technically copyrighted and that's yours to use exclusively..
Christian Brim
That's anything written, recorded, audio, video, anything like that?
Matt Rogers
Exactly. The distinction though, is that you can't just copyright an idea. It has to be a specific fixed format, production or creation.
Christian Brim
What about comedians? Like a live performance, is that copyrighted?
Matt Rogers
Yeah, that's definitely copyrighted!. There' would be several copyright holders. There's the comedian's actual performance, the words of the jokes, and then there's the recording of it, like perhaps that's owned by Netflix. If there's any music in that production, that's another copyright as well, potentially.
What you can’t : You can't just copyright is an idea, for example, the idea of a guy walks into a bar, right? Or in the terms of film ideas, like, Boy meets Girl and they fall in love. So an idea is not copyrightable. It has to be in a fixed, original idea form. Filmmakers love copyright because that's what allows them to make money on their film. You make a movie – you don’t want anyone to be able to and then anyone can’t go and record it and listen to it or watch it without paying you.
Obviously, that happens anyway with piracy and stuff.
Now, back to fair use. The idea about fair use is and it's a concept that is written into the Copyright Act. It’s really about the First Amendment and the fact that, as a society, we would like to have individual freedom of expression. Here’s an example: If I were a film critic, and I wanted to say I had my own TV show, and I said I wanted to talk about this film where a boy meets girl and I wanted to talk about how good it is or how bad it is. In order to be able to fully discuss the movie, I’d want to use those some clips and stuff other material to illustrate my thoughts about the movie.
Technically, those clips are copyrighted, but because you're I as this fictional movie critic would be discussing it and you're talking about the ideas in the film and you're giving your my opinion about the film, you I can use the clip without a specific license from the filmmaker. The same thing happens with other ideas & formats.
For example, if you're making a movie about cycling doping in sports (as I just did! Check out Enter the Slipstream for VOD release and screenings near you) and you talk about how certain people were doping in sports, and you have a viewpoint on that, and you're using news transforming those images in a way that through your commentary and your ideas about doping and sports, and you happen to show a thing clip about of Lance Armstrong going across the film, that's fair use, because you're talking about the concept and how you're transforming the use image. You're participating in a free exchange of ideas about a particular topic that this particular image happens to be elucidating. There are several factors that go into determining whether something is fair use.
And we could go into those. I think the best thing for filmmakers to read is the Center for Media & Social Impact’s Codes of Best Practices for Fair Use. American University has best practices for documentary filmmakers about fair use. If you can read that and then familiarize yourself with that framework, then you'll be a large percentage of the way there.
Christian Brim
Anybody that's creating content, whether it's for public distribution or not, has to be aware of this issue?
Matt Rogers
Yes.
Christian Brim
So, if I wanted to produce an in- house training video and I've got clips from The Office, I've got to technically license that?
Matt Rogers
Technically, yes. But practically, iIf you're just ushaving it in- house and you're not distributing it to the rest of the world, you can take cuts of The Office for your one’s own personal use all the time. It's a matter of whether you want to distribute it or not and get paid for it in the broader marketplace.
Christian Brim
Okay, so what if a content creator is creating it for someone else's in house? Like they're doing training videos for Campbell’s?
Matt Rogers
Technically, unless you're commenting on or transforming The Office clip in some way like you're commenting on it. If you were saying workplace harassment on the basis of sexuality or national origin is a problem, and then you show a terrible example from The Office like anything from Michael Scott talking to Oscar for whatever reason, that's an example in the media of a problem. You might be able to use that as an example in a various kind of way, but it would be irresponsible of me to say you can use this every time and it’s going to be fair use in every situation. I'm not going to say every time. It's kind of a gray area and it's very specific to the format and the context in which it's being used.
Christian Brim
Does that apply to why they can only use a certain amount or time of a song before they have to get copyright? Like, I'm only going to play 3 seconds of it. Is that the same concept?
Matt Rogers
Well, one of the factors in the fair use is that you only use the amount you need to make your point. There is a common misconception out there that, as long as there's a specific time cut-t off that you can use, and that you're always able to use that amount of footage, no matter what. But that's not actually true. To the extent that you're commenting on a particular clip or a copyrighted piece or to the extent that it's just incidental to your shooting a film, it determines whether it's fair use or not.
For example, in this film I just produced, we have some people driving a car and a song comes on the radio.
They're like, oh, this song is so great. I love this song. They BOP along with it. It was completely random. It came on and they're commenting on it. Now, if we were to take that film and use that song with the original recording and then use it to extend into the next scene or use on the credits or something, then that would no longer be fair use, we would just be using it for the sake of it being a popular song.
When it comes up in real life and people are actually talking about it or reacting to it, then that's within the fair use. It always is like super context- specific, though. You can't really just say always if it's this amount of time, or always if it happens to come on. That could be abused too. For example, A guy comes on in the first scene and merely says, “I love the Beatles’ White Album, it's the best album and it's affected me deeply.” You cannot just play the whole White Album for free in your film, because that would not be limited to the specific kind of commentary that you are providing on that piece.
Christian Brim
Is fair use the thing that gets creatives, most in trouble as far as getting cease and desist from lawyers or is it highly litigious?
Matt Rogers
For sure. Yeah, especially with the way that content i, it's all online. It's easier for law firms and companies to find out whether you're using material or not. If you're really looking to sell your film, you have to represent that everything is above board. It's either licensed or fair use. You get an insurance policy called Errors and Omissions Insurance. What goes into that is an attorney writes a letter saying X, Y and Z in this film is fair use. And here are the reasons why. X, Y and Z are instances of fair use. Your E&O You get this insurance policy that will defend you either on the basis of the license that you have or the particular instance of fair use of copyrighted material. that will go to trial.
Christian Brim
Besides fair use, what common problems do you run into working with filmmakers from a legal standpoint?
Matt Rogers
There's two issues. One is from an IP perspective, like your collaborators, your camera people operators, your editor or whatever you need in your employment agreement or contractor agreement. Their agreement should have what's called a “work for a hire” provision, which means that everything they are putting into the film is in the name of the film company or the person who's going to own the film. Now, because otherwise there is case law existing that says that anytime you're working on a collaborative project, like a film, then the IP is owned by the producer it's automatically work for hire. But you don't want to necessarily have to go and litigate that - if you can, you want to have it in your written agreement.
Christian Brim
How does that work if they're contractors and not employees?
Matt Rogers
Same thing. It doesn't make any difference, really. In your employee agreement you want to have a work for our provision and same with a contractor.
Christian Brim
Anything else that someone thinking about getting into this business needs to consider from a legal standpoint?
Matt Rogers
Another area is releases for the people appearing in your film. One, if you're making a film about one particular person. You want to have what's known as a “life story” or “life rights” agreement, which basically says that you can portray them in your film and that they won't come after you on a legal basis. You want to be protected from their claiming that you are portraying them in a false light or another kind of negative or slanderous way. Life rights agreements also gives you an exclusive kind of monopoly on that person's story -so that if another larger production company comes along and thinks it's a great story, and then they try to pay them to use the story, you have an exclusivity to work with that particular subject.
Christian Brim
Would that apply if someone was an extra in a film or maybe just like in a documentary, they're just incidental, they just happen to be in the scene. Do they have any rights as to their name, image, and likeness or whatever that is?
Matt Rogers
It depends. You want to have releases for everybody that shows up in the film, but the torts that you can be sued for. A tort is if you do a wrong to someone, generally speaking, either invasion of privacy, false light or slander issue.
If you're in somebody's house and you're filming and you don't have a release, then they have an expectation of privacy and you're invading that privacy if you don't have their permission to use that footage.
The other idea is slander. Everybody knows what slander is. If you say, Matt Rogers is a liar and a criminal and should never be trusted to do anything, I could hopefully prove that's not true, and then that would be slander or defamation. The other idea is false light. A law school example that I remember, is like, say you're doing something about prostitution. You're doing an article about or a news piece about prostitution, and you have somebody just randomly walking in front of a house of ill repute or something, right?
They just have to be walking by. There's no expectation of privacy because they're out in public. If you're doing something about legalized prostitution, and this person happens to be walking by, the thing the false light is that you're assuming that they're part of this organization or talking about these services.
If it's a public place where it gets dicey is if you're filming inside in a school or an auditorium where you have to have a ticket to get in there. It's a quasi- public space, but you have to have permission to get in there. In those cases, you want to have a posted release saying, by your being here, you can leave if you want to, you're free to leave, but we're going to be recording this. By your being here, you consent to be in this film. Those are some of the big stomachache concerns that a lot of filmmakers have.
Matt Rogers
Attorney at Law
FilmLaw.co
I have focused my practice on motion pictures and branded content, representing award-winning filmmakers, scriptwriters, producers and content providers making great work over a variety of platforms. After working for a large firm for a few years, I’m happy and lucky to be able to work as an independent attorney with independent filmmakers in NYC.
I’ve been immersed in the Brooklyn filmmaking world for many years, where, in addition to my legal practice, I’ve worked with a variety of organizations important to filmmakers. Recently, I’ve been honored to be pro bono general counsel of the Video Consortium. I’ve been on the Board of Directors of the Brooklyn Film Festival since 2010, where I also co-founded the BFF Exchange, linking Brooklyn filmmakers with each other and the larger New York film community since 2015.
I’ve spoken on legal issues related to independent filmmaking at the Camden International Film Festival, the Hot Springs Documentary Film Festival, Brooklyn Filmmakers’ Collective, FilmShop, and the Made in NY Media Center (RIP!).
I’m admitted to practice in New York State, the Federal Courts of the Southern and Eastern Districts of New York, and am a member of the New York City Bar Association. Fordham Law (J.D.) and Brown (A.B. in Comparative Literature and Italian).
Outside of my law practice, I serve on the board of directors of Bike New York, which is a great organization you should learn about and support.
I’m also producing a documentary about the cycling team EF Pro Cycling’s 2020 Tour de France season.