This section addresses many topics including the various ways to obtain a script, an overview of the permission process, public domain, fair use and parody. For documentary filmmakers, we’ve included a discussion of the ominous clearance culture. Finally, we explain how to protect your work with the Copyright Office and the Writers Guild.
There are four ways to obtain a script: 1) you can write it yourself, 2) you can co-write it with one or more people, 3) you can hire someone else to write it or (4) you can buy it. Below, we focus on the first three options.
1. Writing Your Own Script
Writing your own original script tends to avoid some copyright law issues that arise when you co-author a script or when you hire someone else to write a script. By “original script” we mean physically writing — using paper, electronic media or other means or devices — an idea you came up with on your own.
If your script is not “original,” but is inspired by or based on another person’s copyrighted work (e.g., a poem, novel, short story, movie, etc.), you will most likely need to obtain the copyright owner’s permission. Why? Because when you create something inspired by or based on another person’s copyrighted work, you are making what is called a “derivative work” — which is one of the exclusive rights granted to copyright owners.
2. Writing Your Script with Someone Else
Co-writing a script usually does not result in legal problems. However, collaboration agreements are useful because disputes are inevitable (and necessary) even when the co-writers are old friends. And the copyright law does not always coincide with how authors view their collaborative relationships. A well-crafted collaboration agreement anticipates problems and allows the co-writers to avoid ugly misunderstandings.
Exactly when and how do collaborators become joint authors for copyright purposes? A “joint work” is a work prepared by two or more authors with the intention that each author’s contribution will combine to form a unified end product (the script). When this happens, the law gives each writer what is called “joint ownership” in the copyright of the script. Each writer has an equal share of the copyright, meaning he or she has the same rights as all the other co-writers with respect to the script.
Joint ownership of a copyright has the potential to cause problems. Each co-writer can independently and without consent from the other co-writers 1) exploit the copyright of the script, 2) license the script and 3) transfer his or her ownership rights in the script to another person. And unless there is a written agreement stating otherwise, each co-author is entitled to an equal share of the money generated by the work, just like a husband and wife each own 50 percent of their house.
3. Hiring Someone Else
You may decide you want to hire someone else to write the script for your film. If you take this approach, who will own the copyright? A work of art usually is owned by the person(s) who wrote it. But there are important and common exceptions to this rule of thumb, which make the person/company who paid for the work, not the writer, the “author.”
The exceptions come into play when works are created by employees within the scope of their employment OR when a work is created by an independent contractor (often called a freelancer) and qualifies as a “work-made-for-hire” (sometimes shortened to “work-for-hire”).
For a work created by an independent contractor to be considered a work-made-for-hire, ALL of the following conditions are required: 1) the work must be specially ordered or commissioned; 2) the work must fall within one of nine categories listed in the copyright statute, which (thanks to the powerful Hollywood lobby) include “part of a motion picture or audiovisual work”; and 3) there must be a written agreement — in advance — between the parties specifying that the work is a work-made-for-hire.
Filmmakers often are inspired to make a film after reading a book or short story, seeing a play or being exposed to some other type of source material or underlying work. They also are users of other creative works, especially music. Usually, permission is required to use the creative works of others, but copyright law strikes a “cultural bargain” between creators and the public interest by limiting the scope of the copyright holder’s monopoly through the fair use doctrine and the copyright’s eventual expiration. So, in some circumstances, permission is not required.
As Nolo Press author Stephen Fishman notes, you should ask two questions to determine if permission is needed. 1) Is the material protected under law? 2) Would your use of the material violate the law? Of course, there is no simple answer to these questions. What follows are brief summaries of public domain and fair use law, including the parody doctrine. We then outline the basic steps involved in getting permission to use a protected work and describe the standard permission tools (licenses and releases). Finally, we provide a sample permission letter and form.
Music clearance is covered in depth elsewhere on this site.
Works in the public domain can be used freely without permission. Examples include works created by federal government employees as part of their jobs and works in which copyright protection has expired. Determining the copyright term for a work created before 1978 can be tricky, but if the work was published or registered before 1925, it is probably in the public domain. You may want to consult a chart that outlines copyright terms.
It is important to note that there may be valid copyrights in derivative works based on works that have fallen into the public domain. New versions include musical arrangements, adaptations, revised or newly edited editions, translations, dramatizations, abridgements, compilations and works re-published with new material added. Derivative works are independently copyrightable. However, the copyright in the new work does not affect or extend the protection, if any, in the underlying work.
You may be able to conduct your own public domain research following the guidance offered in the resources listed below. If you cannot find a clear answer, consult a qualified attorney.
For more information on public domain rules, check out Stanford’s Copyright & Fair Use site.
The Public Domain by Stephen Fishman
The Copyright Handbook by Stephen Fishman
There are certain situations when you won’t be punished for using another’s copyrighted work without permission or clearance. The fair use doctrine, which has a close counterpart in trademark law, is based on the belief that the public should have some access to copyrighted works for purposes of comment (including parody), criticism, teaching, scholarship and news reporting.
Fair use doctrine is both flexible and unpredictable. Congress wrote the fair use doctrine into the Copyright Act of 1976. That’s both good news and bad news for anyone wanting to use another person’s work without permission. It’s good because the law says you can “borrow” so long as it’s fair to do so. It’s bad because determining what is fair is subject to interpretation.
The distinction between fair use and infringement is often unclear. There is no specific number of words, lines or notes that may be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. The statute does set out four factors to be considered in determining whether or not a particular use is fair:
• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the copyrighted work.
These four factors, plus a fifth — are you using the work in good or bad faith? — are all explained in more detail on the Stanford Law School site.
Increasingly, documentary filmmakers are relying on A Documentary Filmmakers’ Statement of Best Practice in Fair Use to determine what constitutes fair use. For more information on this topic, please see our section on the clearance culture (below).
ParodyParodies are a form of creative criticism, and are often protected by fair use and free speech. A parody ridicules or provides social commentary on another work, and it is understood that this cannot be done without conjuring up the original. Beware: using another’s creative work in a humorous way does not automatically mean the work is a parody. You can’t just change the title of a song or have an impressionist sing the lyrics in a funny way. To be safe, ask a copyright lawyer whether or not you can proceed without obtaining permission.
For a more detailed discussion of parody and fair use, see Parody: Fair Use or Copyright Infringement by Lloyd L. Rich. For a discussion of parody and free speech, see Parody and Satire by Kyonzte Hughes.
The Clearance Culture & Documentary FilmmakersDigital technology and the Internet are democratizing filmmaking. Today, anyone with a video camera and movie-editing software can make a documentary. But can the aspiring filmmaker afford to make it legally? Just a few years ago the answer often was “no.” Now, thanks to a best practices fair use statement developed and disseminated by their peers, documentary filmmakers are dramatically lowering clearance costs while also respecting copyright ownership.
Clearance costs — the licensing fees paid to copyright holders for permission to use music, text, archival photos and film and news clips — are known for turning low-budget films into very expensive projects.
Consider the critically acclaimed autobiographical documentary Tarnation (2004). Filmmaker Jonathan Caouttee used Super 8 footage, family photo albums, phone messages, DV diaries along with references to 1980s pop culture to tell the story of his chaotic upbringing, focusing on his relationship with his mentally ill mother. Famously made on a $218.32 budget and edited on iMovie software, the distributor spent an additional $400,000 on sound, print, score and music clearances to bring the film to theaters.
In a poignant scene in Mad Hot Ballroom, the 2005 documentary that follows elementary-school children in New York City as they learn ballroom dancing and prepare for a competition, a mother’s cell phone rings. The ring tone is “Gonna Fly Now,” the theme from Rocky. Sprint, which owns the ring tone master rights, readily granted permission to use the tone because the company considered it a product placement opportunity. But EMI, the song’s publisher, wanted $10,000 for the six-second ring. Eventually, the filmmakers negotiated a fee of $2,500. In all, they spent $140,000, or 45 percent of their total budget, to clear music rights.
Eye on the Prize, the award-winning 1987 documentary series about the civil rights movement, was produced on such a small budget that the filmmaker could only purchase five-year licenses to the archival material. When those licenses expired, the acclaimed 14-hour series could not be broadcast. Happily, in 2005, the Ford Foundation and a New York-based philanthropist provided the funds necessary to renew the rights to the hundreds of copyrighted film clips, images and music used in the films.
This clearance culture — which assumes that no material, even a snippet, can be used without permission from the copyright owner — eviscerates a fundamental component of our copyright system known as fair use.
Fair use is the right, in some circumstances, to use copyrighted material without asking permission or paying for it. Grounded in the First Amendment, this free expression “safety valve” is probably the most significant limitation of a copyright owner’s exclusive rights to reproduce, distribute and perform their works and to allow others to do so, usually for a fee or royalty.
While courts define what constitutes fair use on a case-by-case basis using the four factors in the 1976 Copyright Act (the purpose and character of the use, the nature of the copyrighted original, the amount of the portion used in relation to the copyrighted work as a whole, and the effect of the use on the market or value for the original work), criticism and comment, news reporting, research and scholarship, parody and limited classroom use usually are considered fair.
However, for filmmakers and other creators, the distinction between fair use and infringement is often unclear. There is no specific number of words, lines or musical notes that may safely be taken without permission.
But don’t despair! Thanks to efforts spearheaded by the Center for Social Media at American University, documentary filmmakers now have access to legal guidance that is lowering production costs, reducing frustration and promoting creativity. The Center began its successful scholarship-in-action journey in 2004 by interviewing 45 independent, professional documentary filmmakers. Its findings and recommendations were reported in Untold Stories: Creative Consequences of the Rights Culture for Documentary Filmmakers. The findings were not surprising:
• Rights clearance costs are high, and have escalated dramatically in the last two decades.
• Gatekeepers, such as distributors, grantmakers and insurers, enforce rigid and high-bar rights clearance expectations.
• The rights clearance process is arduous and frustrating, especially around movies and music.
• Rights clearance problems force filmmakers to make changes that adversely affect and limit the public’s access to their work, and the result is significant change in documentary practice.
• Filmmakers, while sometimes seeing themselves as hostages of the “clearance culture,” also are creators of it.
• Filmmakers nonetheless exercise fair use, and imagine a more rational rights environment.
The report’s recommendations included:
• Developing and disseminating models of “best practices”;
• Establishing legal resource centers to support filmmakers; and
• Developing learning materials to build awareness of filmmakers’ fair use rights.
In 2005, following up on the Untold Stories recommendations, the Center for Social Media collaborated with five filmmaker associations on A Documentary Filmmakers’ Statement of Best Practices in Fair Use. The 8-page document articulates shared values around fair use and then outlines the most common situations in which documentary filmmakers believe they have the right to use copyrighted material without licensing it.
What are those situations? According to the easy-to-understand and reasonable Statement, they are:
“Employing copyrighted material as objects of social, political or cultural critique.” Whether the documentary comments directly on the copyrighted material or parodies it, fair use generally applies as long as the producer isn’t just taking the opportunity to use much of the material for free.
“Quoting copyrighted works of popular culture to illustrate an argument or point.” The producer uses the material for a new purpose with proper attribution and does not take a free ride on the merits of the original, does not use more of it than is necessary, and does not use it simply to avoid the time and expense of coming up with something else.
“Capturing copyrighted media content in the process of filming something else.” The producer unintentionally catches incidental sounds or images, such as pop music playing on the radio in the background or a family singing “Happy Birthday.” Fair use can’t be used as an inexpensive method of creating a soundtrack.
“Using copyrighted material in a historical sequence.” The producer must show that a certain image, music or speech is crucial to telling the story, that there is no suitable substitute and that getting permission to use the work is impossible or excessively expensive compared to the film’s budget. The producer can’t simply build a documentary around the material to exploit it, use more than necessary to make a point, use it without attribution or rely disproportionately on a single source.
While the underlying purpose of the Statement is to encourage filmmakers to rely on fair use when appropriate, the Center and their collaborators had two additional goals — to persuade gatekeepers, particularly insurance companies that sell the errors and omissions (“E&O”) policies required for broadcast or commercial release, to accept well-founded assertions of fair use in place of affirmative rights clearance and to provide filmmakers with free or low-cost legal assistance in the unlikely event of litigation.
Much to the surprise and delight of all those involved, the Statement has already changed industry practices. For example, the four insurance companies most commonly used by documentary filmmakers — AIG, AXIS PRO, ChubbPro and OneBeacon — have all announced programs that cover fair use claims. Better yet, Kansas City-based AXIS PRO, the nation’s largest provider of media liability insurance, made a groundbreaking arrangement with Stanford University’s Fair Use Project and a panel of entertainment lawyers including Michael E. Donaldson, author of Clearance and Copyright. AXIS PRO now offers E&O insurance policies for filmmakers who make use of unlicensed copyrighted material, but comply with the Best Practices. So now filmmakers have access to affordable insurance that permits them to exercise their fair use rights. The Fair Use Project, in turn, has gone a step further. Stanford’s project will provide pro bono legal services to pre-certified films. If Stanford is unable to provide free services, then Donaldson’s law firm will provide referrals to a number of media lawyers who will provide representation at a reduced rate.
Donaldson also spearheaded the successful effort to exempt documentary filmmakers from the Digital Millennium Copyright Act. Under the exemption granted by the U.S. Copyright Office in July 2010, documentary filmmakers and film students are allowed to rip short portions of material from DVDs, even when that material is behind encryption and other digital locks. For more information, including the critieria, read the International Documentary Association’s Documentary Filmmakers Win Exemption from Digital Millennium Copyright Act.
VLAA encourages filmmakers to assert their fair use rights. We also recommend Bound by Law? published by Duke University School of Law. This entertaining comic book on copyright law features a filmmaker named Akiko who is planning to shoot a documentary in New York City. She is confused about which aspects of city life — from Broadway marquees to songs played by street musicians — can be included in her film under the fair use doctrine. Authors Keith Aoki, James Boyle and Jennifer Jenkins explain the basics of copyright in plain English, while using the arts to educate the arts community.
“Clearance” is a general term used to describe the process in which permission is granted to incorporate outside materials into your film. A licensing or permission agreement authorizes you to use a protected work for a specific purpose, generally in exchange for a fee. If you use a protected work without getting permission, you may be infringing on the copyright or trademark owner’s rights and could face legal action.
When someone signs your release form, he/she is relieving you from legal liability. In other words, the other party is promising not to sue you for legal claims such as invasion of privacy, unauthorized use of name or likeness for commercial purposes (right of publicity), or defamation. These terms are sometimes used interchangeably. What is important is the content of the agreement, not its title.
The permission process is not overly difficult and in some instances fees are nominal. For example, Stephen King, author of numerous best-selling horror novels, is well known for granting student and aspiring filmmakers permission to make Dollar Baby noncommercial adaptations of his short stories in exchange for a one-dollar licensing fee.
As outlined on the Stanford Copyright & Fair Use pages, getting permission is a five-step process:
1. Identify the owner. A good place to start is the copyright notice. But sometimes more research is required. Consult the books below for guidance. And remember, music usually involves multiple owners (e.g., publisher and record company).
2. Identify the rights you need. You don’t want to ask (or pay) for more than you need now or in the future.
3. Plan ahead. Permission should be obtained before you use the work. The permission process may take several months, so don’t bank on hope. Start early. Be polite and be persistent.
4. Negotiate to determine whether or not payment is required. Fees vary. The likelihood of payment and the current rates for common uses are discussed in our recommended books.
5. Get it in writing. Relying on an oral agreement can be a mistake (see contracts). Plus, you will need documentation if you enter a contest, submit your film to a festival, or land a distribution deal. (See deliverables.)
We recommend the following books:
• Copyright & Clearance by Michael Donaldson
• Getting Permission: How to License & Clear Copyrighted Material Online and Off by Richard Stim
• The Permission Seeker’s Guide Through the Legal Jungle by Joy R. Butler
When you’re writing the letter to get permission to use another person’s creative work, think about the kinds of information you would want if you received such a letter. Who is writing? What is the nature and scope of the project? What is the request? Specifically, which work? How much of the work is going to be used? What is the proposed fee? Although permission letters tend to be informal, you should be polite and professional.
In many cases, a copyright holder or his/her representative will furnish their own permission form (a contract) for you to sign. Please, never sign a document that you do not understand. Getting legal advice before you sign on the dotted line is far less expensive, traumatic, and time-consuming than trying to repair the damage at some future date.
Should you need to generate your own form, you may want to use our sample. It gives the filmmaker fairly unrestricted use of the material: it gives you the right to use the material for this film (but no others), for any future remakes, for any future distribution, and for advertising. When possible, you should specify how you want to use the work, knowing that if your plans change, you may need to obtain a new permission form.
Protecting Your Screenplay
Although there have been some high-profile infringement cases (e.g., Twister, Amistad, Broken Flowers) chances are your screenplay is not going to get ripped off by another filmmaker or producer. But you should seriously consider including a notice on your title page and filing a registration with the Copyright Office and/or the Writers Guild. Similarly, you should protect your finished film.
As discussed elsewhere on this site, your script is copyrighted once you fix it into a tangible medium of expression, i.e., when it ceases being an idea in your head and you write it down or record it in some other way. Remember, copyright does not protect your ideas; it protects the expression of ideas. So themes and settings will not be protected. You cannot protect matters of historical or contemporary fact. Titles of works and short phrases are not protected by copyright (but they may be protected by trademark law).
Use of the copyright notice is optional, though highly recommended. Why? Use of the notice is recommended because it informs the public that work is protected by copyright, identifies the copyright owner, and states the year of first publication. In the event that a work is infringed, if it carries a proper notice, the court will not allow a defendant to claim “innocent infringement” – that he or she did not realize that the work is protected. The notice should contain the following three elements: Copyright symbol “©”; Name “Jefferson Smith,” and Year “2015.” The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission or registration with the Copyright Office.
Although registration is not required to secure copyright, there are certain advantages to registration:
• Registration establishes a public record of the copyright claim;
• Before an infringement suit may be filed in court, registration is necessary;
• If made before or within five years of publication, registration will establish prima facie (Latin for “on its face”) evidence in court of the validity of the copyright; and
• If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions.
To register, visit the Copyright Office’s website and follow the easy-to-understand instructions. In most cases, you should be able to prepare the form without the assistance of an attorney.
Mailing Yourself a Copy or “The Poor Man’s Copyright”
You may have heard that a cheap way to prove a work is copyrighted on a certain date is to send yourself a copy of the work through the mail in a sealed envelope. The postmark date is supposed to prove that your script was copyrighted on or before that date. WRONG! While this is often referred to as “The Poor Man’s Copyright,” please do not waste your time or money! If want to establish the public record, register your work with the Copyright Office.
Writers Guild Registration
You may have heard that you can also register a script or treatment with the Writers Guild of America, West. The WGAW registers more than 55,000 pieces of literary material each year and is available to members and non-members alike. Registration provides a dated record of the writer’s claim to authorship of a particular literary material. If necessary, a WGA employee may produce the material as evidence if legal or official Guild action is initiated. You may want to consider registering treatments or drafts of your work-in-progress with the Registry prior to registering your final draft with the Copyright Office. Registration for non-members costs $20 for five years.
For more information, read Protecting Your Script by Evan Smith.