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MOVING
IMAGES
FREQUENTLY ASKED QUESTIONS
DEVELOPMENT
PRODUCTION
COPYRIGHT REGISTRATION AND PROTECTION OF A COMPLETED MOTION PICTURE/VIDEO/PROGRAM
I
am planning to make a film/video/television program based on a copyrighted
work such as a book, magazine article, etc. What rights do I need and
from whom should I obtain them?
If the underlying work is copyrighted, you must obtain an assignment from
the copyright owner of exclusive or non-exclusive rights to make a movie,
video or program based on the work. It is not always easy to determine
the proper copyright owner. If the underlying work is a book, a good place
to start would be to contact the publisher to obtain information. A copyright
search of the Copyright Office database, by the Internet or through an
outside copyright service could also be helpful in providing this information.
You then need to determine who held the movie rights under the publishing
agreement. When you acquire an assignment from a copyright owner, it is
a good idea to obtain a short form assignment and record it in the Copyright
Office to put others on notice of your rights.
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How
do I know whether a work is in the public domain and I am free to use
it without permission as the basis for my motion picture/video/program?
Unless the work is old and the copyright has expired you cannot assume
it is in the public domain. It is not often easy to determine whether
an older work is in the public domain. In most European countries, the
term of copyright is life of the author plus seventy years. Works first
published in the U.S. before 1923 would be in the public domain in the
United States. The only sure way to obtain accurate information is to
conduct a copyright search using an outside search service. You should
also make sure, through the search service, that a work is in the public
domain throughout the world, since it is possible for some works to be
in the public domain in the United States and protected in other countries.
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I
am hiring a writer to write a script or treatment for a motion picture.
How do I make sure that I own the copyright?
You must have a Work for Hire Agreement signed by the writer confirming
that you own all rights in the script, including all copyrights, to cut
off statutory termination rights, or in the alternative you should have
a written assignment of copyright in the script from the writer. In the
absence of such a written agreement, the script writer could make a claim
of copyright ownership in the script. However, if all you need is a grant
of exclusive movie rights, you do not need a Work for Hire Agreement.
An exclusive licensee is a copyright owner too, as to those rights.
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I
have a great idea for a film, video or program. Is it possible to protect
this idea or to copyright it in order to prevent others from using it?
Ideas and concepts are not protectable by copyright. You can obtain copyright
protection only for specific expressions of the idea, such as dialogue,
developed characters and possibly, under some circumstances, specific
plot elements. Protection might be possible outside of copyright, for
example by contract or a confidentiality agreement. It would be advisable
to prepare a detailed treatment with the specific plot elements and characters
and/or a script and to register this in the US Copyright Office. Also,
put a copyright notice on all copies with your name so that others are
aware that you are claiming copyright ownership. You should limit the
distribution and disclosure only to such parties that you feel are necessary.
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I
want to use certain copyrighted material such as props, music and film
clips in my film/video/program. When do I need permission and when is
it fair use to use these elements?
If you are using copyrighted elements in your motion picture, it is almost
never fair use and almost always requires a license from the copyright
owner.
Props
In any type of commercial film (as opposed to a news program or documentary),
use of props, posters and other material that are copyrighted as part
of sets, should be cleared with the copyright owner if they are recognizable.
The only instance in which rights would not have to be cleared is if the
material is unrecognizable.
Film Clips and
Photographs
If film clips or photographs from motion pictures, television programs,
or other sources are used, consent is required from the copyright owner
to use clips or photographs in a motion picture, no matter de minimis
or short. There is a common misconception that usage of clips of less
than a certain length may be fair use and permission is not required.
This is not the case. Certain news footage which you may wish to include
in your film, may be usable without consent, but it would be advisable
to check with a copyright attorney or other expert to determine this before
inclusion. Much news footage is protected by copyright. There are stock
film libraries which will furnish film clips and photographs for use in
films for which permission is not needed. If you are looking for a generic
type of film clip or photograph, it would be advisable to obtain these
from a stock film or photograph library.
Music
Use of any copyrighted music that previously exists in a film, no matter
how short (even if only a few notes), as long as the song is recognizable,
must be cleared with the copyright owner. A synchronization license must
be obtained from the copyright owner of the musical composition to use
it, or any part of it, in a film, video, or motion picture. If you are
also using an existing record or sound recording, you must also obtain
a master use license from the copyright owner of the sound recording in
addition to a synchronization license from the copyright owner
of a musical composition. These licenses must be obtained no matter how
incidental the use of the music or recording. Even if someone sings only
a few notes or there is a radio playing in the background of a scene,
it is an infringement of copyright to use a musical composition or pre-existing
recording without the consent of the copyright owner.
If original music
is being used, there must be a written agreement with the composer that
provides that the user has permission to use the music under a grant or
rights of through a Work for Hire agreement and that the music is owned
by the owner of the copyright in the film. Absent a written agreement,
the copyright owner of the motion picture will not have permission to
use the music. As with film clips and photographs, there are stock music
libraries that will provide background music for motion pictures for a
fee and license the right to use it. This will save the expense of hiring
a composer to write and record original music.
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How
do I protect my film under copyright?
First, place a copyright notice on the titles of the film containing the
owner of the copyright, the copyright symbol © and the year of copyright.
Second, it is advisable to register the motion picture with the United
States Copyright Office using a form PA within ninety (90) days after
the film is first released or otherwise published. The information and
instructions for doing this can be obtained from the US
Copyright Office Website. Of course, copyright exists regardless of
notice and registration, as said below.
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When
is my film protected by copyright and what is protected?
As soon as your film is completed, it is protected by copyright automatically,
whether or not it is registered. Registration gives you certain rights
to stop third parties from pirating or infringing the film's copyright.
In order to sue a third party in court for either piracy or other copyright
infringement, you must have registered the film with the US Copyright
Office. Copyright in a motion picture covers all original elements of
the picture, including the script, any original music and all visual and
audio elements of the film. It protects the owner from anyone else making
copies of the film or from broadcasting, exhibiting, distributing or publicly
performing the film or any part of the film without consent.
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