Copyright and its Place in Film
Jul 11, 2024 | Law Student Blog,
By Z’necia Hall, Saint Louis University School of Law, Juris Doctor Candidate, 2025
Copyright law protects original works fixed in any tangible medium of expression which includes but is not limited to literary works, musical works, dramatic works, pictorial works, motion pictures and other audiovisual works.
Copyright is very important in film because the potential copyrightable works in a film are nearly endless. There’s the script, the concept art, potential choreography, the score, the actual video, that random improv scene and much more. The list can go on and on. So, as a producer, production company or filmmaker, how do you ensure that all the copyrightable works belong to one owner? And, why is having one owner important? That is what will be discussed in this article.
Licenses
The use of copyrightable works that do not belong to you will likely require a license of some sort to use the work. One example is a synchronization license. In short, this license can allow one to use someone else’s song in synchronization with film.
Work Made for Hire
One way to help ensure that all the copyrightable works created in the process of making the film belong to one producer, production company or filmmaker is through the concept of work made for hire. Having a copyrightable work as a work made for hire essentially transfers the copyright rights to the employer or person who commissioned the work.
There are two ways one knows that a copyrightable work is a work made for hire. The first way is if the work is made by an employee within the scope of their employment. It is not necessary to have language in a contract expressing that the work is a work made for hire if there is an employee-employer relationship. But who really wants to go into the legal specifics of whether someone is or is not an employee? Or, who wants to have to dissect the meaning of “within the scope of their employment?” What if your craft services worker comes up with an amazing line that you add into the script? Is that within the scope of their employment? Most creatives just want to create and make sure they have their copyright rights. Don’t worry, there is another way.
Under the second way, a work made for hire is a work that was commissioned or ordered through a written contract and falls within at least one of nine different categories. Works made as a part of a film or audiovisual work is one of the nine categories. Under this approach, one must expressly state that the work was made for hire in a contract signed by both parties. This is great for the film industry because then one does not have to go into the specifics of whether someone was or was not an employee and if the work was or was not within their scope of employment. This is why it is really important to have it in every contract concerning a film.
There are many copyrightable pieces in a film. There needs to be a level of certainty that all rights belong to one person or business entity to use such copyrightable works. Therefore, to avoid hiccups, appropriate work made for hire language should be in all contracts concerning a film. This way, you know that whether the person is an employee or not, that all potentially copyrightable work connected to the film belongs to the producer, film production company or filmmaker.
Contribution Agreements
Contribution agreements are also important because they capture all relevant works created and licenses acquired before the film has become its own business entity. When making a film, it is common for some pre-production/development to happen before the production becomes its own limited liability corporation (LLC) that owns all the rights to the film. When that part of pre-production happens, the copyrightable works and licenses are likely owned and held by different people. This may be the director, screenwriter, producer, etc. A contribution agreement essentially takes all of the things made before the creation of the LLC or other business entity and transfers them to that business entity. This agreement will usually be between people who are considered part owners of the film, not employees or independent contractors.
Importance of One Copyright Owner in Film
Having one owner and or licensee, whether that is a business entity or a person, who can prove chain of title is crucial in the film industry for three specific reasons: Ownership rights, insurance and distribution.
Ownership Rights
When people co-create an inseparable copyrightable work, each person essentially has the one hundred percent right to unilaterally do whatever with the work. This includes but is not limited to unilaterally distributing, copying, and granting non-exclusive rights without the permission of the co-creators unless provided otherwise through contract. If for example you and an acquaintance create a script together, both of you would own one hundred percent of the rights to that script. That means either person could give it away for free or license it out without discussing it with the other. Note that this would not negate the duty to split any profits acquired if a contract is not in place that states otherwise.
What if an independent contractor creates all the art for your movie without work made for hire language in their contract? That independent contractor would likely own all rights to the artwork and could choose to do with it whatever they like including holding you up from using it.
What if you make a film based off a script that you are still waiting to get the rights to? That could throw a huge wrench in your plans once you’ve wrapped and want to release the film.
These are just a few of the ownership rights that could get in the way of your vision and goal of your film.
Insurance and Distribution
Errors and omissions (E&O) insurance generally covers things such as accidentally using copyrighted works without the proper permission. This type of insurance is important for investors to feel comfortable that the rights are in order. To acquire E&O insurance, every part of the film must be owned by one person or business entity and/or the right licenses must be in place for works that do not belong to that person or entity. This is often done through clearances and releases.
Film distribution will also require proof of copyright clearance and/or proof that E&O insurance is in place. Everyone is essentially trying to protect themselves from a copyright infringement suit and other potential bad situations down the road. Also, distribution companies want to make sure that they truly have the rights to distribute the film in its entirety. Obviously, mistakes may happen and that is what insurance is for.
As most filmmakers want to get their works out for people to enjoy, it is essential that copyright rights are thoroughly dealt with in advance. Now you know several ways to help you do that through licenses when needed, work made for hire language in your contracts, contribution agreements, and E&O insurance.
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