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

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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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