“I just want to make a little independent film. Why do I need to know about intellectual property rights? Who cares about copyright, trademark, and right of publicity? I’m to small for anyone to notice me.”
Sorry, friend. That’s really not going to be true. Once you put your creation out into the world, all kinds of eyes will be examining your work to make sure that you didn’t copy or use their work illegally. Even if you are just planning on going to the film festival stage (or posting on YouTube), you will need to make sure that you secured the rights to use any external works.
Also, your little independent film may be better than you think, and other people may want to profit off of your ideas. So you need to know how to protect your creation.
This site is basically intended to be a resource site with some information so you don’t have to go through reams of links to get started. It is not intended to be a be-all and end-all declaration on matters of intellectual property in film.
A lot of these resources are from law firms. Law may not seem exciting, and it’s not something that a lot of people associate with film. But if you’re making a film, you will need to have some idea of the ins and outs of intellectual property rights and licensing. And you if you continue in your journey as a filmmaker for any period of time, at some point you will need to consult with an attorney.
You will need to prove to the people financing and distributing your film that you have the correct intellectual property rights clearances before you start shooting. The film producer typically is the person who is responsible for protecting the film through securing all of the agreements to use external sources of intellectual property, the so-called “chain of title documentation”. Also, it helps you to protect you from people stealing your work without compensating you, in addition to enabling you to reserve your rights for a distribution deal. And, it helps to define who owns what rights for their own work within the group of people creating the film, from the director, to the screenwriter, to the soundtrack composer, to the actors. In other words, the more you know about intellectual property rights, the more you can avoid problems in your filmmaking career! Intellectual property rights protect creators. For a more finely-grained overview of intellectual property in film, see “From Script to Screen: What Role for Intellectual Property?” from Cathy Jewell, Senior Information Officer of the World Intellectual Property Organization.
The intellectual property rights that are involved in creating a film include:
- Copyright
- The film itself
- An original story or screenplay
- Adaptation of a copyrighted work – gaining the rights to use the story for your work from the original creator
- Licensing music to use in your film
- Getting rights to show clips from another movie in your work, or using fair use doctrine
- Contract law
- Employment agreements with performers
- Releases
- Trademarks
- There are definitely rules about whether you can display known trademarks in film.
- They may be less strict than many people believe.
- Right of Publicity
- Using someone’s likeness is a multi-faceted issue that complicates the ability to take advantage of things like public domain material.
- Postmortem rights of publicity are also determined by the laws of the state where the person died, so this is an extra complication.
However, there are also exceptions for some of the above rules, so that you don’t have to ask for permission or pay to use every piece of material that was ever created. The major exception is fair use, which is a series of factors that allow use of material for certain purposes of commentary and criticism. Also, copyright doesn’t last forever. As of January 1st, 2025 most material that was published in the U.S. before 1930 is in the public domain. This means that it is freely usable for new works. Some creators also dedicate their material to the public domain. And, the Creative Commons organization created a series of licenses to allow creators to distribute their materials with fewer restrictions than full copyright. Video producer and podcaster Ron Dawson gives a good overview of these points in “The Ultimate Guide to Fair Use and Copyright for Filmmakers”. (He also goes over the topic of fan films, where the validity of the claim of fair use is ambiguous to non-existent. But the use may or may not be given free rein by the studios to create a good relationship with the fan base.)
If you do wind up wanting get permissions to use intellectual property that is owned by someone else, you have to be prepared to do some work. For example, if you wanted to option a copyrighted work, you may wind up doing a fair bit of research to find the copyright owner. There may be multiple copyright owners. They may or may not be willing to work with you. If they do, you will need to enter in to legal contracts before getting to work. Communication and persistence will come in to play. Independent film and television producer David Kaufmann gives some more insight in “From a Producer’s Perspective: How to Find and Acquire Intellectual Property”.
One example of the type of thing you want to avoid with regards to protecting your own intellectual property is what our friend George Romero had happen. His 1968 movie Night of the Living Dead wound up being public domain because of a copyright mistake, and he was never able to make much money off of it. His production company decided to change the name from Night of the Flesh Eaters at the last minute, to avoid confusion with another movie called The Flesh Eaters. But then after that change happened, their distribution company failed to put the © symbol and copyright information under the title at the beginning of the movie on the actual film prints. In 1968, U.S. copyright law required that the copyright ownership be displayed this way. If it wasn’t, the film was considered to lack copyright and immediately fell into the public domain. But in a way, his loss is the gain for many indie filmmakers. This is since Romero’s archetype for the zombie, and most of the film itself, are usable for free for filmmakers. Please see “How a Copyright Mistake Created the Modern Zombie” from copyright and plagiarism consultant Jonathan Bailey for the whole story. (You might still want to be careful about using the images or voices of the actors because of publicity rights, though. Sometimes those are still in effect after the actor has died. In fact, someone made Night of the Living Dead action figures, and did have to ask for permission from all of the actors.)
Copyright is much easier to get these days. (Technically you own the copyright to anything with original content that you create in a tangible form.) But going about formal processes of gaining intellectual property rights for your work and external works can help you avoid future heartbreak, financial insolvency, and legal tangles.
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