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Question: I am getting ready to shoot a script I have written (this is a
self financed project) and one of the scenes involves a character watching
a movie at home. The movie I would like to have playing has two very
famous stars in it but would only be shown for about 10 seconds or less on
screen. Do I need to get legal permission to have this movie playing
on the TV in my scene?
Answer: Without knowing all the facts and circumstances of your use,
including the type of film you are producing (narrative or documentary),
whether the film you want to borrow from is in the public domain or not,
and whether the actors are alive, it is difficult to know whether you can
safely do this. Assuming
the movie has not gone into the public domain, it would be risky to
include it in your motion picture without a license.
Movies are a form of work protected under copyright, and you cannot insert
them into your film without the permission of the copyright owner. The only
exception might be under the fair use doctrine. This doctrine protects
the right of the public to draw upon copyrighted works to produce separate
works of authorship under the fair use doctrine. Such uses include fair comment
and criticism, parody, news reporting, teaching, scholarship, and research.
Thus, a movie or literary critic does not need permission to include a small
quote from a work being reviewed. It is sometimes said of writers that if
you borrow extensively from another’s work, you are a literary thief;
but if you borrow bits from thousands, you are considered a scholar. Of course,
the scholar adds value by synthesizing information from prior works and creating
something new. In determining whether the use of a copyrighted work is fair
use, courts weigh four factors: 1) the purpose and character of the work;
2) the nature of the copyrighted work; 3) the amount and substantiality of
the portion borrowed in relation to copyrighted work as a whole; and 4) the
potential adverse effect on the market for, and value of, the copyrighted
work. In applying these factors it can often be difficult to predict
whether a use will fall within the doctrine. Generally speaking, a greater
amount of material may be borrowed from non-fiction works than from fictional
works.
Moreover, the use of the actors' images in your movie may violate their
rights of publicity, invade their privacy or defame them. I don't know whether
these actors are alive or deceased (if they are dead you don't need to worry
about defamation or invasion of privacy), and what state they were domiciled
in if alive or when they died (state law determines the right of publicity).
—Mark Litwak (www.marklitwak.com)
Mark Litwak is a veteran entertainment attorney and Producer’s Rep
based in Beverly Hills, California. He is the author of six books including:
Reel Power: The Struggle for Influence and Success in the New Hollywood,
Dealmaking in the Film and Television Industry, Contracts for the Film and
Television Industry, and the recently published Risky Business: Financing
and Distributing Independent Film. He is the author of the CD-ROM program
Movie Magic Contracts, and the creator of the Entertainment Law Resources
website at www.marklitwak.com. He can be reached at law@marklitwak.com.
Disclaimer-Any
material sent to or provided by Mark Litwak is for illustrative and educational
purposes only and should not be relied upon as legal advice, or be considered
confidential or the basis of an attorney client relationship. This
material may not be suitable for your particular situation and different
legal advice may be appropriate depending on your jurisdiction or circumstances.
Therefore, you should not rely on this material, or any part of it, without
the advice of competent legal counsel.
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