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February 2017 - The Clearance Lab, LLC
Monthly Archives

February 2017

Feb 28
0

What Is a Review of Film Clearance Procedures?

By | copyright, Film and Television, Film and Television Lawsuits

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At the end of your film project—after the foley, the music, and the final renders—it’s time to give your film the final legal touch that will protect you and your work of art: a review of film clearance procedures.

Having your film clearance undergo scrutiny can be the difference between a film with a firm legal standing and a film that’s at risk for a lawsuit.

In this article, we’ll cover why you need a review of clearance procedures, what it gives your film, and the risks associated with skipping this important step.

Why You Need a Review of Film Clearance Procedures

You may be wondering why you need a review of clearance procedures when you’ve already completed a title review, script clearance, and chain of title review. That’s a fair question.

Think of the entire clearance process and your film together like assembling a car. The script is the engineering blueprint, the chain of title is purchasing all the parts. At each step, you perform due diligence to ensure that everything is properly completed.

The final step in assembling a car is the test drive, the last bit of quality assurance to see that all the individual components come together as designed. In the same way, the review of clearance procedures compares what you planned to do (production script) to what the actual finished product.

Let’s face it: a lot changes over the course of a film project. Locations get altered, a different song is chosen in post-production, and more. It’s very, very easy to have legal exposure creep into a project as complex as a film.

What a Review of Film Clearance Procedures Provides

When you obtain a review of your film clearance procedures, you’ll gain valuable insights into where your film invites litigation and controversy. An attorney will sit down with your completed film and compare it to your legal paperwork. The goal here is to look for inconsistencies between the expected documentation and what was executed.

Here are some examples of potential discrepancies:

  • To make the set seem more authentic, additional props were brought in, some of which have visible trademarks.
  • Artwork is present in the museum scene. You have permission from the museum, but not from the artists to show their work.
  • You licensed a song for use but not the actual recording, so your license doesn’t cover the way you used it.
  • You’re missing paperwork from a supporting actor.

After the review is complete, you will receive an attorney opinion on your legal risk as well as recommendations for fixing any issues found. Armed with this information, you can take steps to defend your film before the litigation starts.

Risks from Skipping a Clearance Procedure Review

In the film industry, inadequate film clearance can cost filmmakers not only dollars but lost distribution or significant delays with their film. As your film reaches the masses, the smallest copyright infringement, trademark infringement, or other violation can have huge implications.

To see some real-world examples of the risks (and lawsuits) that resulted from poor legal caution, check out these examples:

Your E & O Insurance carrier knows these risks as well, which is why every insurance application asks if an attorney has reviewed your clearance procedures.  It’s the final form of protection you can give yourself and your film.

Order your Attorney Review of Clearance Procedures so you can spend more time promoting your work instead of worrying about defending it in court. 

Feb 28
0
copyright infringement lawsuits

Why Copyright Infringement Lawsuits Can Cost Millions

By | copyright, Film and Television, Film and Television Lawsuits

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copyright infringement lawsuits

Filmmakers can become complacent about their exposure to copyright infringement lawsuits, especially if they focus on cases that are dismissed or settled out of court. However, a lawsuit can end up ruining a project, or a producer, with extravagant awards.

Last November, an appeals court upheld the damages awarded to Warner Bros. in their copyright infringement lawsuit. The victory was against a marketing and licensing agency that had used copyrighted images owned by Warner Bros.

The judgment was for over two and half million dollars.

Here are the details about the case from the Chicago Law Bulletin:

Art & Vintage Entertainment Licensing Agency (AVELA) lifted images of Warner Bros. characters from promotional material. The characters were classic—and copyrighted—figures including Dorothy and the Tin Man from the Wizard of Oz, Scarlett O’Hara from Gone with the Wind, and the animated archenemies Tom and Jerry.

AVELA then used the characters on lunch boxes, playing cards, t-shirts, and more without the consent of Warner Bros., which—unsurprisingly—landed the agency in court.

While it’s obvious that AVELA was treading on dangerous ground, this legal battle is important for filmmakers to consider. You may not produce t-shirts with copyrighted material. But your film may use the artwork, music, or ideas of another, creating costly legal risk.

In light of this case, here are a few important takeaways for filmmakers and production houses alike:

The Scope of Copyright Infringement Lawsuits

If your film has appropriated the intellectual property of another, the amount of financial risk can be huge.

Since Warner Bros. owns the copyright to the mentioned films and cartoons, AVELA had no legal right to reproduce the characters, much less profit from licensing them. Had AVELA licensed the characters from Warner Bros., there would have been no issue.

According to the Chicago Law Bulletin, the case was originally decided in Warner Bros. favor in 2009, but AVELA appealed on the basis that the award was too high. Even at $2.57 million, the appeals court didn’t see it that way.

As the article explains, AVELA had infringed on 257 individual copyrights. At $10,000 per infringement, the damages quickly added up.

And they could have been more.

The article explains that the circuit judge noted how poor recordkeeping kept the court from determining a more accurate figure and how the damages were within the range given by the Copyright Act.

Under this law, damages could have reached well over $7 million.

The lesson is clear for filmmakers. A copyright violation can leave you multiplying the costs of your damages instead of the amount of your profits.

The Types of Damages for Copyright Infringement Lawsuits

In this lawsuit, Warner Bros. collected on statutory damages from AVELA’s copyright infringement. However, it’s important to note that the media giant could have collected damages in a drastically different way.

According to U.S. copyright laws, Warner Bros. was entitled to two forms of monetary awards to choose from:

  1. Statutory damages. In the words of the copyright law, this allows the owner of the copyright to collect “damages for all infringements involved in the action, with respect to any one work.” This was the option chosen by Warner Bros.
  2. Actual damages and profits. This means the owner of the copyright can collect for the infringed copyright as well as for any profits made from the copyright infringement. The plaintiff only has to show the gross profits, and the burden of calculating that profit (deducting expenses and what portion isn’t attributable to the copyrighted material) falls on the infringer.

In other words, your film may suffer less quantifiable damages if the owner of the copyright chooses to demand the second option. This means that if your film is found to profit from copyrighted material, then a significant chunk of that profit could be subject to forfeit.

So, while it may seem comforting to read all the examples of copyright lawsuits that did not have a dire financial impact, your risk remains the same: the potential loss of an unknown amount of revenue.

Rather than roll the dice and hope for the best, protect yourself and reduce your exposure to copyright infringement lawsuits.

A film Clearance Package provides a comprehensive review and analysis of the risks associated with your project.  We have numerous packages to fit every project’s needs and budget.  We’ll help put you in the best possible position to profit from your success.

Feb 21
0

Defamation without Words? The Lawsuit against Katie Couric for Under the Gun

By | defamation, Film and Television, Film and Television Lawsuits, Script Clearance

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defamationThe documentary film Under the Gun, narrated and executively produced by Katie Couric, premiered in January 2016. In September of that year, it was hit with a defamation lawsuit.

According to the Hollywood Reporter, the suit centers around eight seconds…of silence.

The article states that the film shows Couric asking several members of the Virginia Citizens Defense League about background checks, but they are shown in silence as if unable to formulate a reply.

As another article in the Hollywood Reporter explains, the people in question are claiming defamation on the basis that they did answer the question and that the eight seconds of silence “were misleading and misrepresented” the plaintiffs’ views and expertise in the subject.

If you’re a filmmaker with a work that’s likely to create heated debate, here are a few things to consider before you release your film.

Playing with Fire(arms)

Documentary filmmakers have never shied away from controversial subjects. In fact, it is generally their desire to weigh in on a controversy that gives rise to the film in the first place.

That controversy comes with a cost, however. When you have real individuals on the record about a highly charged subject matter, your exposure to legal claims, such as defamation, rise.

In today’s socially connected world, strong opinions—especially unfavorable ones—can have a very real financial impact on people. Think back to the dentist who closed his practice after lion hunting in Africa brought him unwanted attention.

The consequences of having your reputation tarnished are increased when the medium is film. And if the offended party believes that damage has occurred because of false and misleading statements, you may have a defamation lawsuit on your hands.

You Say It Best (When You Say Nothing at All)

Before you think avoiding defamatory statements is an easy matter, it’s important to know the legal definition. Defamation is essentially a catch-all term for any statement that hurts someone’s reputation.  As this case shows, you can actually be sued for defamation without actually making a verbal statement.

The crux of the defamation lawsuit hinges on whether those eight seconds of silence intentionally misled audiences about the competency of the Virginia Citizens Defense League members.

Consider the Hollywood Reporter’s own review of the film after its premiere at the Sundance Film Festival:

A group of blustery members of the Virginia Citizens Defense League, however, suddenly remain painfully quiet when Couric asks them the hard questions.

The lawsuit claims that, in portraying the members as unable to respond, the film gives the impression that they are unfit to weigh in on matters of firearms law (including background checks).

As the Hollywood Reporter explains, since one of the members is a licensed firearm dealer and the other is a lawyer specializing in Second Amendment claims, the claim is that their reputations have been tarnished in a material way. As this case demonstrates, you need to carefully consider how your film can be interpreted in order to assess your lawsuit risk.

Defamation and Actual Malice

This case also serves as a timely reminder of the legal landmines surrounding defamation and how guilt is determined.

Defamation claims don’t have to show that you deliberately intended to harm the person in question. In fact, defamation claims aren’t required to prove that you knew the statement was false.

The law provides for claims when the accused has acted irresponsibly with his or her statements (or choice of editing).

You can risk this kind of defamation when you…

  • Act with reckless disregard for the truth, which means you had doubts about your statement’s veracity but went forward anyhow.
  • Act with negligence, which means you didn’t bother to check whether what you presented was true.

The rules for defamation can be tricky based on whether the person in question is a public figure, and the laws vary from state to state.

The best defense is a solid legal analysis of the risks before your film exposes you to lawsuits. A script clearance report does exactly that by examining your script for defamatory references as well as other forms of liability, such as trademark and copyright infringement.

Order a Script Clearance Report today, and rest easy about what your film has to say…and what it doesn’t say at all.

Feb 13
0
copyright infringement clearance procedures

PBS under Fire for Copyright Infringement in Navy Seals

By | copyright, Film and Television, Film and Television Lawsuits, Legal Review of Clearance Procedures

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copyright infringement clearance proceduresCopyright infringement is a real risk for every film that is produced, and infringement lawsuits can hit your film—whether it’s big or small.

Recent news shows that even media heavyweights can face a legal battle over infringement accusations.

As Current reports, Pacific Coast Video has engaged in legal combat with PBS, accusing the public broadcast giant of copyright infringement. According to Pacific Coast Video, when PBS aired their documentary Navy SEALs: Their Untold Story in 2014, it included footage shot—and owned—by Pacific Coast Video.

For filmmakers, PBS’s lawsuit holds valuable lessons for copyright infringement, lessons this article will analyze. In the spirit of Sesame Street, this review is being brought to you by the letter “C.”

“C” Is for Courts

As Current explains, PBS and the film’s producer, fleisherfilm, now find themselves in court facing a copyright infringement lawsuit.

According to the complaint, filed in November of 2016, the PBS program used footage that was owned by Pacific Coast Video, and the footage in question is included in several films produced by the organization, all concerning the Navy SEALs.

As the complaint states, the PBS documentary directly competes with Pacific Coast Video’s films, both through the former’s broadcast across the nation on PBS affiliate stations and through secondary distribution channels, such as Amazon and iTunes. Pacific Coast Video is asking the court to award both damages, from lost revenue and loss of reputation, and punitive damages under California law.

“C” Is for Copyright Infringement

Another lesson drawn from this case is how easily copyright infringement can accidentally occur.

Assume for the moment that Pacific Coast Video’s copyrighted video is included in the PBS film without permission (which still must be proven in court). And assume that PBS and fleisherfilm did not intend to infringe on anyone’s copyright.

There are still several ways the copyrighted video could have ended up in Navy Seals: Their Untold Story:

  • A third party may have provided the video for the producer. For example, it may have been part of promotional material the Navy uses (with permission). Even if the Navy agreed to let the PBS film use their promotional material, they wouldn’t have the legal right to assign the copyrighted material over to the producer.
  • The producer may have mistakenly believed the material was governed by the “fair use” doctrine.
  • The producer may have attempted to license the footage from a company who did not have the authority to license it.

Whatever the cause, PBS and fleisherfilm may now be on the monetary hook for a mistake.

“C” Is for Costly

In the complaint, Pacific Coast Video claims they spent years of effort in acquiring permission from the Navy, shooting large amounts of raw footage, and editing to produce their films. Any revenue generated from that video rightly belongs to them.

At a minimum, PBS and fleisherfilm have unplanned expenses associated with their documentary in the form of legal fees as they prepare to mount their defense.

They may come to an agreement with Pacific Coast Video to settle out of court, which will almost certainly cost much more than if PBS and fleisherfilm had licensed the material.

In a worst-case scenario, they could be liable for all revenue collected as part of the documentary’s distribution—plus potentially be responsible for Pacific Coast Video’s legal fees. On top of all that, the court could levy punitive damages if they find that either PBS or fleisherfilm acted maliciously or negligently.

“C” Is for Clearance

Whatever led to Pacific Coast Video’s copyright infringement lawsuit, there’s no mistaking that a legal review of clearance procedures could have helped identify this issue before Navy SEALs: Their Untold Story was released.

A Legal Review of Clearance Procedures from The Clearance Lab provides you with legal insight and analysis of any potential copyright issue in your film, like the one plaguing PBS.

Order your Legal Review of Clearance Procedures today before your film exposes you to costly and time-consuming legal battles.

Feb 07
0
Title Opinion for Film and Television

Legal Crash Course: A Title Opinion and Your Film

By | E&O Insurance, Film and Television, Film and Television Lawsuits, Title Opinions, Title Opinions

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Title Opinion for Film and TelevisionAs a filmmaker, there’s nothing like knowing the end is in sight for your production. As you complete any final steps, obtaining E & O Insurance will be an important part of ensuring distribution for your film.

Your E & O Insurance carrier will probably ask you for a Title Opinion as part of the application process. This document will help them assess the likelihood of a trademark lawsuit against your film’s title.

The Title Opinion is also for your benefit, as it gives you the information and advice you need to make a strong—and legally defensible—choice when selecting a name for your film.

In this article, we’ll give you a crash course that explores the basics of Title Opinions and how they can help save you time and money.

Here Be Dragons

Popular lore has it that medieval cartographers would mark unknown areas of the world with the ominous warning Here Be Dragons. It stood as a warning to travelers and seafarers that they were entering a potentially dangerous area.

The legal status of trademarks and movie titles can be as blurry and intimidating as the unknown parts of the world. Consider this article from Los Angeles Lawyer, which delves into:

  • the different classes of registration available for film titles,
  • whether certain classes of registration are legal, and
  • how registration might proceed at the federal, state, and international levels.

The legal nature of trademarking a film title may be uncertain, but how trademark infringement can affect your film is not.

By the time you’ve been hit with a lawsuit, you are deep into marketing and promoting your film. The cost of changing your film’s title is huge, and the plaintiffs know it. They have your feet to the fire and will attempt to leverage that into a settlement.

Even if you believe you have grounds to defend your film, the litigation could be tied up in court for years, delaying or even canceling your film’s distribution.

Explore a Title Opinion

Trademark infringement lawsuits can come from companies that are not in the film industry. So while you may have diligently searched IMDb for potential conflicts, that’s not enough to be sure you’re protected.

A Title Opinion is a comprehensive search for all prior uses of the same or similar titles used in films, television shows, or other multimedia projects. It includes not only registered trademarks but unregistered ones as well—which might easily be missed if attempting to research on your own.

Moreover, a Title Opinion includes a legal opinion on the strength of claim for your current title and recommendations on how to proceed.

Charting a Clear Course

With a Title Opinion in hand, you will be able to assess any potential trademark infringements and make changes if necessary, before you start spending on marketing and promotion.

As a filmmaker, you are already adept at balancing the creative and the practical. A Title Opinion helps you make a clear, informed choice on how to name your film, and what risks may be associated with that choice.

Generally, Title Opinions are required by your E & O Insurance carrier before they will issue a policy. Ordering one early gives you time to brainstorm alternatives, if needed, and avoid costly and time-consuming rework on your marketing and promotional material.  Bear in mind, however, that most insurance carriers will require delivery of a title report and opinion no older than six months.

Secure your Title Opinion today and be confident in the long-term protection of your film’s title.