February 3, 2012

Cinema Law: Old Footage, New Media

by Suann MacIsaac | Published September 30, 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: An obscure actor appears in a 30-second TV commercial in 1966. In 2009 he wants to put the long-forgotten commercial on his Website. Any reason why he shouldn’t be allowed to do this?

A: Like posting a copyrighted work on YouTube, the actor’s posting of the TV commercial on his Website would likely violate copyright law. Accordingly, the actor should attempt to obtain written permission from the copyright holder before posting the commercial on his Website.

As most actors know, the Copyright Act protects audiovisual works, including television commercials. Assuming proper initial notice and registration, works published or registered between 1964 and 1977 are automatically protected for 95 years. Thus, the fact that the commercial was made in 1966 does not exempt it from copyright law.

Because the commercial is likely protected by the Copyright Act, the copyright holder (which may be the producer or production company that made the commercial) has the exclusive right to control the reproduction and display of the work. Posting the commercial on the actor’s website would violate both of these rights.

Moreover, the actor’s posting of the commercial on his Website is not a “fair use” of the copyright simply because the actor appeared in the commercial. Instead, to assess whether the actor’s use of the commercial is “fair” under the Copyright Act, a court would consider a number of subjective factors, including (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the copyright work used; and (4) the effect of the use upon the potential market for the work.

While some of these factors may favor the actor, courts have not generally recognized a “fair use” defense to an infringement claim in this type of commercial context. Thus, there is a real risk that a court would find that the actor violated the Copyright Act by posting the commercial on his website. Such a violation could give rise to a claim for statutory damages and for the attorneys’ fees incurred by the copyright holder in enforcing the copyright.

Not withstanding the above, given the obscurity of the actor and the “long-forgotten” nature of the commercial, it may be unlikely that the copyright holder would ever discover the violation, let alone seek to enforce the copyright. Moreover, the actor could always remove the commercial from his website if the copyright holder were to object. However, given the above law, the actor does face some risk from posting the commercial on his website and should attempt to get written permission from the copyright holder before doing so.

Suann MacIsaac is a Partner at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, and specializes in the areas of entertainment, intellectual property and general business litigation. She has successfully prosecuted and defended numerous cases involving claims for copyright infringement, trademark infringement, trade secret misappropriation, unfair competition, fraud and breach of contract. In addition to representing actors, studios, producers, photographers and others within the entertainment field, Ms. MacIsaac also has significant experience litigating matters within the video game industry, where she has represented both large video game publishers and independent developers. She was a central part of the litigation team that recently won a $13 million judgment in favor of Ubisoft Entertainment. Ms. MacIsaac has also handled a number of matters involving partnership disputes, and most recently helped settle a case on behalf of a Los Angeles real estate developer for a payment over $15 million based on an approximately $2 million investment.

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 Arleen Anderson on 11/07/09 at 4:44 pm: I don’t know that much about copyright laws, but I believe that it’s very important to ask for permission first before doing it. However, I don’t know if it’s still relevant to the issue cause like what you’ve said, it’s a long forgotten commercial already.
Comment by Mark@School Grants on 1/07/10 at 10:07 am: Infringement has been one of the main problem we have right now especially in the entertainment industry. You’re absolutely right that it’s not advisable to something for your own benefit. Otherwise, it’s a violation of copyright law. All of us must be aware of it.
Comment by Andrew Davis on 2/25/10 at 11:04 pm: Not because he’s the actor on that commercial, he has all the advantage to use it to his website. He needs to consider the rights of company who hired him to make that commercial. We need to make sure that before we use something, we need to make sure that we won’t violate the copyright law.
Comment by Sheds on 3/23/10 at 5:07 pm: I don’t think that the actor have the right to actually claim or use the commercial for his own benefit. He was paid for it, so he can’t make any demand to the company for his right. Maybe he could just ask for a permission.
Comment by Jane on 5/07/10 at 12:26 am: Never ever use something for your own benefit, unless you get a permission from the owner. Otherwise, you’ll just put yourself in a big trouble. Just embrace lawful acts to avoid any problem.
Comment by Sam Jones on 6/01/10 at 11:38 pm: He doesn’t have the right to make use of it. Of course, the company who has legal rights of the commercial still have the control of it. Unless he can obtain permission from that company.
Comment by Real estate chennai on 7/05/10 at 6:52 am: You are absolutely right that it’s not advisable to something for your own benefit.Otherwise,it’s a violation of copyright law.
Comment by Van Leasing on 9/21/11 at 11:29 am: I think that retrospectively believing that you are within copywrite to publish any material on the ground that you are ‘involved’ is naive at the least. The best way forward is to observe the legal channels and submit a request for permission. The consequences for ignoring this could be disastrous to a one-man-band business.
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