Cinema Law: Is it Too Late to Deal With Copyrights?

by Chad Fitzgerald | Published July 6, 2009

Welcome to “Cinema Law,” MovieMaker.com’s all-new blog where you ask the questions of our resident team of legal experts and, each week, they’ll provide the answers to your production queries. Have a burning question yourself? E-mail it to and your question may just be on next week’s blog! Cinema Law is presented as general information only and is not meant to take the place of professional legal advice.

Q: I’m a recent college graduate who made a student film that used clips from movies and music that may be copyrighted, not thinking that it would go anywhere. It ended up gathering good buzz at the school and among the professors, who suggested submitting it into film festivals. What are the copyright laws for using clips from other films and music and how could I either get the rights or find places that would screen it regardless? Should I just let that film rest and keep it as a private item?

A: This is a good question that comes up often in moviemaking, from student films to studio productions.

First, let’s get a common misconception out of the way. You say your film uses clips from movies and music “that may be copyrighted.” The fact is, they almost certainly are copyrighted. Whether a work is protected by copyright does not depend on whether the symbol “©” is affixed to the DVD or CD case, or even whether it is registered with the Copyright Office. In a nutshell, copyright law gives creators of original works of authorship the exclusive rights to do, and authorize others to do, certain things with their creations, including reproducing them, making other works based on them and performing them publicly. Any original work of authorship (such as, in your example, a motion picture or sound recording) fixed in a tangible medium of expression (i.e., not just existing in the creator’s head, but put down on the page, on film, in a phonorecord, etc.) is protected under the Copyright Act from the moment of creation. While registering the work with the U.S. Copyright Office confers certain benefits, it is not mandatory—the work is protected by copyright law as soon as it is created and made tangible.

It’s safe to assume that the clips and songs you used are protected by copyright. Unfortunately for you, you may be liable for copyright infringement for using these clips and music without permission, no matter where or how often you screen your film. In a perfect world, this permission would be obtained before you started filming, but here we are. Your next steps are (a) determine who owns the copyrights to the films and music that are in your film, (b) seek permission from the copyright holders to use their materials, (c) prepare to pay them for the right to do so and (d) prepare to re-edit your film to remove the clips and music that you don’t obtain permission to use. Without seeing your film, I don’t know how integral these clips or pieces of music are, but you definitely don’t want to face an expensive lawsuit in federal court—one that you would almost certainly lose without permission to use the copyright holders’ works. Unless you can obtain permission or re-edit your film, you should keep it on the shelf.

For the film clips, you need to obtain a license from the copyright owner of every film that appears in yours. You can review the records of copyright registrations on the U.S. Copyright Office’s Website, www.copyright.gov, in order to determine who owns the copyrights to the films you used. That’s fine as a first step, but I recommend hiring an experienced lawyer to help you through both that step and the next one: Contacting the copyright holders to obtain licenses. Since you only need a non-exclusive license (meaning the copyright holders can license the right to use clips from their films to others), such a license need not be in writing. In reality though, a studio will insist that any license to use clips from its films be in writing and be drafted by the studio’s lawyers. Also, be aware that if the clips you use contain recognizable actors, you may also be required to obtain their permission to use their voices and likenesses in your film. Of course, you will have to pay for both of these licenses.

Securing the rights to use prerecorded music in your film is even more complicated because there are two distinct copyrights in any one song: The composition (the music and lyrics) and the master recording (the version of the song that you know, recorded by a distinct artist or band). You need to obtain licenses from both the owner of the copyright in the musical composition (referred to as a “synchronization license” because you are “synchronizing” the composition with your film) and the owner of the master recording that embodies the particular performance of the song that you want to use (a “master use” license). You will have to pay for both of these as well.

I hope this is helpful. Good luck and next time, lock up those clearances early!

Chad Fitzgerald, an attorney at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, specializes in entertainment and business litigation as well as transactional matters for entertainment industry clients. He has represented actors, musicians, professional athletes, and production and distribution entities, as well as clients in the toy, apparel, yoga, and diamond industries, entertainment guilds, personal and business managers, and talent agents and agencies in disputes in California and federal courts as well as before the California Labor Commissioner and the guilds. Mr. Fitzgerald handles contract, profit participation, financing, distribution, copyright, and trademark disputes in the entertainment industry as well as business litigation matters involving contracts, sales, employment, partnership and franchise disputes, fraud, trade secrets, rights of privacy, and defamation. He also negotiates agreements for intellectual property rights holders, entertainment industry executives, producers, and independent filmmakers.

The answers to legal questions provided by the lawyers of Kinsella Weitzman Iser Kump & Aldisert, LLP ("KWIKA") are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in the articles is not intended to create a lawyer-client relationship between KWIKA and you. The opinions expressed in the postings are the opinions of the authors and do not reflect the opinions of KWIKA, its employees or agents.

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Comment by Daniel Ferranti on 7/06/09 at 7:44 pm

Or, you can assert their use under ‘fair use,’ depending on how the clips are used.

Comment by LohanP on 7/09/09 at 3:22 am

Economic crisis has affect the situation of cinema industry.There is a case for walking away from enormous debts, as there is always the option of filing for bankruptcy. Bankruptcy isn’t something to be taken lightly, as it isn’t like buying postage stamps and you will have be consulting with bankruptcy attorneys and determine whether or not filing would be good for you. Unemployment is one of the biggest causes for filing, and foreclosure is one of the usual precursors. If you file for chapter 7, the most common filing, you will have to undergo a means test, to determine whether a person can pay all or a portion of their debts. If considering bankruptcy, make sure you have some quick cash for emergencies and talk to bankruptcy attorneys.

Comment by Peter Roos on 7/09/09 at 8:20 pm

The best practice for filmmakers is (a) to get clearances early on and (b) for that purpose, retain an entertainment attorney early on as well who can guide you through the process.

Fair use is a defense indeed, but that is a tricky one - it is a defense, and whether it will hold is a legal issue. To get distribution, you need insurance, and insurance companies require written confirmation - preferably by an attorney - to the effect that all rights are cleared.

That said, let’s give this college grad a break. Why bother with retaining attorneys and clearing rights if you’re not even sure whether the film is going to end up anywhere beyond the walls of the classroom?

Comment by Leigh Harrison on 7/10/09 at 8:33 pm

The problem with Daniel’s suggestion that you can assert “fair use” is that one of the usual forms of “fair use” is in education. For example, teachers may make (limited) numbers of copies of copyrighted material for educational purposes, but the minute you take your film out of the context of the school or class for which you created the “student film,” you are subject to copyright law. Public viewing of your work is rife with copyright infringement, even if you do not charge a fee for viewing, and “fair use” does not apply
in either situation—for a fee, or for free.

Comment by Roger Wilco on 7/11/09 at 3:31 pm

One can cut out the middleman by using media covered by an alternative copyright regime, such as a Creative Commons license

http://search.creativecommons.org/

Comment by Andrew Norton on 7/14/09 at 8:19 am

Wow, incredible. That Chad COMPLETELY failed to even mention Fair use shows what many of us have known for years - copyright lawyers don’t care one whit what the law says. Fair use is defined via Copyright Act of 1976, 17 U.S.C. § 107

Generally, if the clips and music are used for the purpose of comment and critique of those pieces, it’s acceptable. Similarly in an education construct as Leigh, BUT ‘education’ is a broad term, and doesn’t soley require inside a ‘classroom’, just as education concerning chemistry will require you to step away from the blackboard-based mechanisms, and into the lab to actually mix chemicals first-hand.

Unlike Chad, I’m not a lawyer, I used to be one of those people that did the initial investigations and then called people like Chad. however, most people that that job do not do due dilligence in the investigations, and once the lawyers get it, they don’t care, they will attack. even if the accused was dead before the alleged infringement (yes, that’s happened), bceause it’s money. I’m not saying Chad has no ethics, just that 95% of the people I’ve had experiance with, that have his job, do not. The failure to even mention fair use does make me lean in that direction though. This is one reason why the Pirate Party has been a success around the world.

Andrew Norton
Head, Pirate Party International
Former Chairman, Pirate Party US

Comment by Leigh Harrison on 7/19/09 at 12:02 am

I was delighted—momentarily—that Mr. Norton had seemed to agree with what I mentioned about “fair use”
(being mainly the realm of teachers) until I realized that he somehow blithely extended the meaning to include almost any situation he felt was a learning experience, even if it was not in a “classroom.” (All life is for learning, but that doesn’t mean any person so inclined can make illegal copies and claim “fair use.") Let me reiterate that the concept of “fair use” is for teachers, and let me clarify that to be “professional teachers,” not someone who abuses the concept of “fair use” so they can ullegally copy any work of art they choose, as with pirating of movies, CD’s, pr other copyrighted intellectual property. If Mr. Morton would care to know what I think of people who do that, he should read the Open Letter I mailed and copied onto the “Upcoming CD” page of my website, http://www.leighharrison.com, to get the detailed overview of what pirating of our work means to most of us who are artists, writers, or other creators.

Like many other artists, I struggle to survive, cannot afford to buy a house, or car, own no stocks or bonds or have other investments (except my guitars, which are some of the tools of my trade), and basically try to get by from month to month, sometimes week to week. It is not the wealthy record companies that suffer due to piracy—it is the small business-people like myself and thousands (millions?) of other creative artists
who suffer from the blatant theft of our work.

When people like Mr. Morton create paradigms online whereby stealing our livelihood is not only possible, but condoned—nay, expected—it bespeaks a society that has lost sight of the just and fair rights of artists and all creators, in the pirates’ greed to possess what is not theirs. Lest it was not clear from my comment about “fair use,” allow me to condense my Open Letter in simple terms: piracy is theft.

Comment by Rafael on 7/25/09 at 9:56 am

Copyright infringement has always been an issue now. Maybe because of an economic crisis that results to the downfall of cinema industry. Situation is much worsened by high rate of unemployment in this industry.

Comment by Edie on 7/29/09 at 11:05 am

regarding copyright. Not only do you need the permission and to pay the fee for the usage you must get releases signed for these aspects as well: Director’s Guild of America, Music rights, brands or sponsors in the shots/clips, actors release and permission, Screen Actor’s Guild....clips from movies can be complicated.

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Comment by Mike on 2/22/12 at 2:36 am

If you use a popular piece of music in your video and it becomes popular, you can bet that the Record Companies and artistes are going to breathe down your neck on copyright issues. Be prepared to be sued if you continue using someone else’s licensed music for your own profit.