We’re not in Kansas anymore.  Or maybe we are, just streaming in the stratosphere, right above the clouds.  It’s no secret that there are new and beyond ways to reach the world now.  This is for artists, influencers, filmmakers, video makers, producers, entrepreneurs, internet content creators and all who create without boundaries.

Every artist has their own creative process: A mixture of inspiration, influence, experience and even the subconscious.  Storytelling is frequently influenced by genres of fiction, true stories, science, and musicals. In this levitating stage with less geographic borders, the audience might be global. Don’t look down now, but the last thing you want is legal exposure.

Whether something is created by you or with others (living or alive), the capabilities of how far you’ll go will depend on the U.S. federal laws of copyright, trademark, and other intellectual property as well as state personal rights. At certain lengths, international treatises may also apply.

You still need to do what you feel like doing; I get it. But, if you want to create and use other’s materials subject to these laws, there are some rules to follow.  The goal here is to get it right without setbacks, or at least to show responsibility for your work.  This procedure is called “Clearance of Rights”.  Jump in if you want to go for a ride. It’ll be quick, I know we don’t have a lot of time. 

 

1. Start with the big picture

First, consider the big picture or the final version of your work as a whole to determine if it is “copyrightable”.  Before we begin, it’s a good idea to cover some ground rules before we get to the fun stuff like fair use.  A work is “copyrightable” if it is an original work of authorship that is fixed in a tangible medium of expression.  In other words, it must be independently created by a person and creative enough to meet the requirements.  Oh, and very important, it must be “fixed”.  This means real, brought to life and concrete.

The following are excluded materials and not “copyrightable”.  Facts and discoveries, abstract ideas, functional works, useful items, words, or phrases.  These are excluded because they do not meet the originality requirements.  However, some of these may still be protected under trademark law or another personal right.

A word about registration formalities and notices.  Although registration formalities are not what makes for protection, it is what entitles enforcement.  For full enforcement of your final work, consider its registration and deposit with the U.S. Copyright Office online.  Regarding notices, remember this sample notice with its three elements: (c), Name, and Year.  This next phrase may be also added for additional protection as we enter other territories: All Rights Reserved.  Don’t worry about the order, what matters is that the placing be reasonable and understandable.

A work as a whole may be considered a “copyrightable” element.   Often, the final work in its entire form will be referred to as “the can”.  Similarly, individual elements that are incorporated within may also be considered “copyrightable”.  Once this is down cold, let’s proceed to the next step.

 

2. Separate the individual protectable elements

From start to end or top to bottom, label the types of elements by a) Text; b) Photography; c) Characters; d) Wardrobe; e) Video; and e) Music.  This second step is to dive in and separate each individual element incorporated that is “copyrightable” or protected by other intellectual property rights.

1. Text.  Identify language, quotes, articles, books, newspapers, or excerpts from any third-party authored material that was not written by you.  Remember, facts and discoveries are excluded material because they are discovered, and therefore not created.  However, just like your interpretation and expression is protected, so are other’s “word by word” impressions.  This is what we’re separating.  Also, identify if your work presents or portrays another work, person (living or deceased), entity or character.
2. Photography.  Identify all photography, still images, and illustrations. Particularly, anything appearing in the visual elements in which others may claim rights to.  For example, these may show identifiable products, artwork, services, location, and people.
3. Characters.  For all characters, line them up.  Consider whether they are fictional, real, a combination of, or portraying unique features (e.g., the Batmobile).  This is about more than a general abstract idea, a common theme, or a stock character.  For the close calls, ask whether the character constitutes the story being told or whether the expressive details delineate a sufficiently original character. If so, it’s a “copyrightable” element and we’re separating it.
4. Wardrobe.  The question for wardrobe clearance is if a logo or copyrighted artwork appears as worn.  If so, ask whether the use of it either misleads an association or discredits a brand’s reputation. While it’s safer to establish a blanket rule that prohibits all logos or images that could be susceptible to copyright, the use is not so much a problem if the clothing is being used in the way it was designed. It’s an unclear line.  Unless you have permission or a product integration agreement, this could be problematic.
5. Video.  Repeat parts a) through d) above. In addition, consider talent, actors, directors, producers, underlying rights holders for the life story or book adaptation, choreography dances and properties displayed that may be subject to intellectual property protections.  Don’t forget, titles are excluded copyrighted material but may still be protected by trademark law.
6. Music.  Identify the music and separate each song by composition, lyrics, the master, arrangements, and third-party derivatives. Determine whether it’s being performed by you and/or third parties.   Account for the separate copyright owners and secure appropriate permission from all composers, songwriters, performers (vocals and instrumentals), and record labels. Generally, the permission required will vary on the use (e.g., public performance, reproduction, distribution, adaptation, and/or promotional). Alternatively, you can create and use original music.

 

3. Determine the copyright ownership

For each identified element, determine the ownership. Copyright ownership vests in the author(s). That is, whoever creates the work. This is the person who translates an idea into a fixed, tangible medium of expression entitled to copyright protection.

If more than one author worked together, this will be a joint ownership. However, all participants must have intended for those contributions to be merged as joint ownership. In such case, each joint owner receives an undivided interest in the work. As a result, each can then use or license the entire work with an obligation to share profits. Consequently, all co-owners must consent for full and exclusive transfer of the joint work.

If the author(s) were hired or contracted to create the work, this is a work made for hire or a commissioned work. In these cases, the employer or the independent contractor will be the copyright owner. However, this is not the default. For this to be in effect, it must be in writing.

 

4. Clear out the other rights

Hang tight, we’re almost there. The remaining intellectual property rights owned by third parties as well as the sources must still be established.

If your mark’s use involves a new mark or an existing mark, conduct a trademark search and clearance.Identify the source and ensure that the use is consistent with the permission granted and with any guidelines.

For third-party uses, consider whether a license or permission is not necessary because the use constitutes a trademark fair use by way of either: (i) Nominative use, i.e., news reporting, and product or service identification; (ii) To describe; or (iii) For comparative advertising.Ensure any use here is proper and that the mark is not being used in any way that misleads association, endorsement, or damages reputation.Use adequate disclaimer as well as attribution lines as needed.

1. Contributors.  Sometimes, people will work or provide help on your work with creative contributions. This is how some of the best works come to life. But a word of caution: Be very careful here. In the case where individual “copyrightable” elements have been contributed and ownership is not clear, here’s what can happen to your capabilities. Since this may result in an undivided interest, a non-exclusive license right as well as reasonable compensation rights in favor of the third-party contributor may be forfeited. To avoid this from happening, clear this with written agreements and language that ensures that you retain all the rights (unless otherwise expressed, of course).
2. Identifiable products and brands.  Identify all trademarks used in the work. This includes logos, taglines, product designs, and other source-designations.
3. People’s name, image, and likeness.  The right of publicity prohibits the unauthorized commercial use of an individual’s name, likeness, or other identifying aspect of one’s person (living or deceased).  Check this with the state(s).  In Florida, for example, the right of publicity is a property right held by a person, heir(s), or assignee(s). It protects a person’s name, portrait, photograph (still or moving); and likeness. The duration is for life, plus 40 years after a person has deceased.  For persons identified in a work such as advertising, marketing, or other materials, determine whether the use requires permission based on how identifiable or incidental those persons are.  Remember that this also applies to any uniquely identifiable trait (e.g., voices, phrases, and even professional athlete’s jersey numbers).
4. Privacy rights.  Consider common law privacy rights when clearing materials, including protections under state law. These rights protect the personal invasion of privacy and integrity in the use of an individual’s name and likeness. Unlike the right of publicity, privacy rights apply regardless of commercial purposes. Exceptions apply for news reporting but may still be limited to some capacity. Even then, always consider any disclosure of private facts, or false light that could be offensive to the person.
5. Numbers and license plates.  Personal privacy rights apply to phone numbers, addresses, license plate numbers and other personal, business, or confidential data. Consider blurring or removing from the screen.

 

5. Obtain the appropriate permission and secure documentation

Lasty, for all the protectable elements and sources identified, evaluate the required permission for the intended use.  Maintain written records of all permissions, licenses, and agreements with the important terms and restrictions monitored, as well as legal basis for concluding a permission was not required.

Generally, works owned by third parties require appropriate license, permission, or release.  The steps are to locate the rights holder(s), negotiate a deal, and send it out in writing. These must typically give you the right to the intended use as well as to edit material, fictionalize people portrayed and to promote in all media.

However, consider if the license or permission is unnecessary because either the materials have been previously licensed; the work in use is in the public domain; the material is excluded from copyright; or it qualifies as fair use. It’s always better to err on the side of caution and ask for permission unless you are completely certain it will not be necessary. Even then, there are times that it may be better to ask and document the “no” on record. 

If evaluating fair use for fiction and/or non-fiction creations, consider the (i) Purpose; (ii) Nature of the “copyrightable” element in question; (iii) Amount used; and (iv) Market effect.  Remember, follow the rules and guidelines: Transform your work; show the purpose of your own contributions; limit the use to the extent necessary and avoid competing with the original.

 

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Maria Jose Rivera is Counsel at Parlatore Law Group, and an entertainment lawyer, focused in the areas of copyright, trademark, litigation, international intellectual property, and business-related matters. For more information about Maria Jose Rivera, click here. She can be reached at MariaJose.Rivera@parlatorelawgroup.com and 305-537-9322