Hi,

Ive just made a short film (my first, but it has come out quite well and Id like to enter it in some small festivals). Iv been through hell trying to tackle music copyright (so expensive!), but now Im worried Ive hit another copyright barrier. I realised that the fact that I have a TV in my film in probably going to be an issue. There are a few scenes where the camera pans across the scene and a TV can be seen on (in one shot a sitcom is playing, another time it is tennis, another time it is Doctor Phil, and also the video game Crash Banidcoot). The shots are generally quick (u see the TV for 1-3 sec or so). Unfortunately I didnt even think about this being copyright when I filmed, but now Im worried - have I breached copyright? And is there anything I can do apart from removing the shots or getting permission (I dont want to imagine what itd be like trying to get permission to use Dr Phil)?

Thanks very much to anyone who can shed light on this issue,

Josef

btw, in case it is relevant, Im from Australia

I don't think they'll care on the small pan segments, Charlies Angels 2 had Final Fantasy 8 in it, but they focused on it. A pan is fair I think but I don't know much about copyrights. Music copyrights, yeah, those are the tough ones, remember the Rocky cell phone ring story? Yeah, good luck man. All I can recommend is find an entertainment lawyer or one trained in entertainment law as well. That's all you can do if you haven't done so already. =(

In the U.S. it would depend on what kind of film yours is and how how much what you see and hear on the TV is central to the action/story. If a documentary you might have a fair use defense, if your film is a commercial narrative the issue would be different.

Take a look at: http://www.centerforsocialmedia.org/fairuse.htm

Of course if you live in Austrialia it's a whole different legal system with different laws, rules, and precendents.

Incidental reproduction (which is the applicable doctrine) law in the U.S. is unsettled and contradictory. Note, too, that you also need to be concerned about right of publicity laws (which vary from state to state) and trademark infringement. I can't give you legal advice because you're not my client. I can suggest that a solution might be a pinned track matte with a little gaussian blur. ;)

If you have any recent version of After Effects Pro, you can fairly easily use Motion Tracking to composite some original footage in place of what is currently on the TV screens, then you have no worries.

yeh thanks everyone. I was thinking about that blurring idea...I reckon this copyright situation is just so stupid..I mean what's showing on the TV has NOTHING to do with the film, it doesnt defame or invade privacy..its just there because TV is a part of everyones life, just like books or clothes or anything. The tiny glimpes of the shows on the TV is no different IMO than anyone going over and flicking on their TV set. And apart from all that..Im sure no one cares anyway!


Aaarrrrgggghhh! :)

yeh thanks everyone. I was thinking about that blurring idea...I reckon this copyright situation is just so stupid..I mean what's showing on the TV has NOTHING to do with the film, it doesnt defame or invade privacy..its just there because TV is a part of everyones life, just like books or clothes or anything. The tiny glimpes of the shows on the TV is no different IMO than anyone going over and flicking on their TV set. And apart from all that..Im sure no one cares anyway!


Aaarrrrgggghhh! :)

Take a look at this site www.law.duke.edu/cspd and especially www.law.duke.edu/cspd/comics

There's a lot of good information there about what is and what isn't public domain and what might snag you up.

And you'll find you're wrong that no one cares - they care every day to the tune of very big bucks and wonderful films languishing on the shelf because of lack of clearances.

A legal system that serves corporate profit over the common good needs to be replaced.

"Corporate profit over the common good".... interesting point of view.

I for one have been involved in copyright litigation over theft of my own work, and am VERY grateful for the copyright laws.

They protect the little guy as well as the big corporations. Like policemen, you're generally glad to have them around when you need, them... and hate to see them when you're doing something wrong.

But then again, I'm married to a copyright attorney. And I see little guys and big guys make the same mistakes, and get sued for big bucks... BY little guys and big guys.

I'm sure Paul Tauger, our resident copyright/trademark attorney will concur.

"Corporate profit over the common good".... interesting point of view.

I for one have been involved in copyright litigation over theft of my own work, and am VERY grateful for the copyright laws.

They protect the little guy as well as the big corporations. Like policemen, you're generally glad to have them around when you need, them... and hate to see them when you're doing something wrong.

But then again, I'm married to a copyright attorney. And I see little guys and big guys make the same mistakes, and get sued for big bucks... BY little guys and big guys.

I'm sure Paul Tauger, our resident copyright/trademark attorney will concur.

In general I would agree. But when an image or logo is visible in the background of a shot, purely by coincidence, and the film is pulled because either clearance can't be obtained or the cost of defending against threats of infringment are too high even if the threats would ultimately prove to have no merit, then the law has become the master rather than the servant.

In one example cited on the Duke site, a documentary on opera happened to include a shot of stagehands lounging backstage during a performance. Visible in the background for 4 seconds was a TV set playing an episode of "The Simpsons." Fox demanded $10,000 for clearance or removal of the shot. And because of the costs of litigation, all too often such cases are not decided on their ethical merits but rather on who can afford the slickest legal gunfighter. IMHO that is clearly corporate greed prevailing over the common good. I know if I were that filmmaker, no legal counsel I could ever hire could withstand the clout of the Fox network legal department, a situation that means that "justice" is simply another product in the market for sale to the highest bidder. I have to question the personal ethics of the attornys who would use such a tactic to prevail for their deep-pockets clients. I must confess it sometimes seems the legal profession has placed winning by any method possible to be their paramount professional virtue, much more important than working for justice and equity. Or perhaps they feel that justice is whatever the person writing the checks says it is. That cannot be the foundation of an honorable and enduring society.

The Duke site I referenced also has a discussion of the withdrawal from circulation of the Martin Luther King biography "Eyes on the Prize" because of rights renewal issues. Well worth looking at.

That cannot be the foundation of an enduring society.It's the foundation of an enduring sitcom.

Honestly I don't see how a few seconds of The Simpsons benefits the common good. You need an entire episode for that.

I'm a huge fan of the show, have been since its very beginning, but it is intellectual property and Fox has every right to protect and control it. And I don't buy into the "corporate greed" argument either. It's redundant. A corporation exists to make a profit. That's what corporations are all about.

However I'll concede that in the documentary situation you site, there *should* be an affordable license structure in place to cover these kinds of instances. Obviously Fox felt that $10,000 was affordable... to them, maybe, but I think it's a little stringent for four seconds. Affordability is a relative term, after all.

Ultimately the best advice for the original poster has already been provided by Paul and Pete... After Effects is your friend. Get that blur goin'!

I think it should depend on the use. If you're shooting a wedding video or a theatrical drama and use "I'm In the Mood for Love" as part of the soundtrack, by all means it needs clearance and licensing and I'm in 100% agreement with that. But if you're shooting a documentary on street musicians and shoot a buskar playing it on his violin in the subway station, that should be legitmate fair use. Or not even that blatant an example of the law run amok - as it is now, if you were shooting a documentary on the SF cable cars and someone happens to walk through your scene absent-mindedly whistling it, you're going to need clearance, edit the soundtrack, or pull the shot.

With all due respect to Chris and all the legal opinions displayed in this thread, I have to side with Steve House on this one. We are living in a society dominated by corporate greed (which is not the same as making a profit) and a legal system out of control. I can see no moral or legal justification for forbidding the photographing or filming of any corporate logo visible from a public place. Where would we be if Walker Evans, Robert Frank, or Henri Cartier Bresson were out shooting on the streets today?

I can see no moral or legal justification for forbidding the photographing or filming of any corporate logo visible from a public place. Where would we be if Walker Evans, Robert Frank, or Henri Cartier Bresson were out shooting on the streets today?
There is no legal prohibition from using corporate logos unless there is a likelihood of consumer confusion as to source, sponsorship or affiliation. If not present (and the use doesn't dilute or tarnish the logo), then it is perfectly legal to include it in a film.

Take that Simpsons example...I see no logical reason why those film makers need permission to use that.
A) It doesnt affect the documentary, and it doesnt add anything to it. Its not as if it has used one of the Simpsons jokes to get a laugh, or to make a point.
B) It doesnt give the show a bad name, or in any way cast negative views about it. (if anything, its a bit of free advertising)
C) Everyone knows the Simpsons, and has seen the Simpsons, so its not like its revealing somthing Fox doesnt want ppl to know about.

Ultimately, I dont see how the filmmakers using such a short, irrelevant shot of the Simpsons affects Fox in any adverse way. And dont get me wrong - if the filmmakers where exploiting the shot to make a point or joke then I agree that filmmakers should need permission, because they are ultimately stealing someone elses work. But because the Simpsons just happens to be on the TV the opera ppl were watching, and is just a tiny part of the big picture, I think its very unfair.

Take that Simpsons example...I see no logical reason why those film makers need permission to use that.
A) It doesnt affect the documentary, and it doesnt add anything to it. Its not as if it has used one of the Simpsons jokes to get a laugh, or to make a point.
B) It doesnt give the show a bad name, or in any way cast negative views about it. (if anything, its a bit of free advertising)
C) Everyone knows the Simpsons, and has seen the Simpsons, so its not like its revealing somthing Fox doesnt want ppl to know about.
The concern isn't trademark, but copyright. Article I, Section 8 of the U.S. Constitution provides that authors will have, for limited periods, exclusive rights in their works of authorship. "Exclusive" means exclusive.

Ultimately, I dont see how the filmmakers using such a short, irrelevant shot of the Simpsons affects Fox in any adverse way. And dont get me wrong - if the filmmakers where exploiting the shot to make a point or joke then I agree that filmmakers should need permission, because they are ultimately stealing someone elses work. But because the Simpsons just happens to be on the TV the opera ppl were watching, and is just a tiny part of the big picture, I think its very unfair.
Blame the Constitution, as it is the source of the right. I'm dealing with a similar issue just now, involving a documentary producer and a film that includes a 6-second clip for which rights can't be obtained. In this instance, it comes down, I think, on the side of fair use, but it's a gamble. This is a pro bono client, so I'll have to see whether my firm wants to take the risk of representing the producers if they are sued, and also whether the producers want to take the risk of getting sued. It may not be fair, but the alternative is many times worse.

... I'll have to see whether my firm wants to take the risk of representing the producers if they are sued, and also whether the producers want to take the risk of getting sued. It may not be fair, but the alternative is many times worse.

If a legal system can't be fair and deal with issues of right and wrong, doesn't that kind of negate any justification for having one in the first place?

If a legal system can't be fair and deal with issues of right and wrong, doesn't that kind of negate any justification for having one in the first place?
The primary purpose of a legal system is to ensure predictability in social intercourse. Social interaction can't happen without commonly-understood rules.

Copyright law recognizes concepts of right and wrong -- fair use doctrine is an equitable doctrine, meaning that it incorporates fundamental concepts of fairness. The problem is, no one seems to recognize the nature of the copyright. It is an absolute right of ownership, per the Constitution, and always has been. Saying that copyright law shouldn't apply when 5 seconds of a Simpson's episode is playing on a TV in the background of a film is like saying it's not grand theft auto to take my car for a joyride at night because I'm not using it then.

Fair use doctrine ensures that if there's a compelling public need (usually defined in the context of a First Amendment interest), then copyright infringement liability won't attach. However, "right and "wrong," and fairness are evaluated based on the "big picture," i.e. the nature of the right that constitutes copyright, rather than from the premise that what the infringer did really isn't that bad.

In the context of the pro bono documentary producers, this would be what is called "a case of first impression," i.e. there is no prior decision to offer guidance (though there is a lot of dicta, i.e. judicial opinion that is non-binding). I have an opinion which way the court would go, but I may be wrong and, either way, it will be very expensive to find out.

The primary purpose of a legal system is to ensure predictability in social intercourse. Social interaction can't happen without commonly-understood rules.

...

True, but IMHO incomplete. Rules per se have no value except to the person who gets to make them serve his own self-interest. A legal system is not only to make sure we have clearly understood rules but also to make sure that the rules we have are the right rules.

The problem with the narrow interpretation of copyright and fair use is the Constitution never anticipated the situation today where one cannot function in the world at large at any time without one's eyes falling on some piece of copyright material or one's ears hearing a copyright piece of music. That means one cannot point a lens or open a microphone in public without some piece of copywrit material intruding. Culture today is virtually defined by copyrighted material, unlike 200 years ago when such material was relatively rare and the majority of man's intellectual activity quickly entered the public domain. As you know, it's only relatively recently in history that copyright on a work was extended to the length of time it exists today. (IMHO, something similar to that of a patent at 16 years from the date of registry would be adequate to protect the artist's right to compensation for his work. Certainly it should not extend past his death even if the rights have been sold to a third party - works should enter the public domain upon the artist's death. While the right to profit from a creation certainly belongs to the creator, the thing of the creation itself ultimately belongs to the culture as a whole. Imagine if the Louvre had to pay a per-head royalty to a corporate owner for every person who views the Mona Lisa or every textbook that prints a copy of it needed permission from DaVinci's heirs!) We are quickly reaching a saturation point where every usable surface is covered with copywrit advertising, for example. The only way for an artist to comply is to insure they completely control the environment, impossible for any filmmaker short of a large studio working in the completely closed and artificial environment of a soundstage.

Don't misunderstand me, I'm not in favour of abandoning copyright and making it open season - far from it. But there needs to be a balance between what is the intentional inclusion of protected materials in order to enhance the value of a new work and the incidental inclusion of protected materials simply because they are such ubiquitous and unavoidable intrusions into modern life.

True, but IMHO incomplete. Rules per se have no value except to the person who gets to make them serve his own self-interest. A legal system is not only to make sure we have clearly understood rules but also to make sure that the rules we have are the right rules.
True, but "right" is always a matter of perspective.

The problem with the narrow interpretation of copyright and fair use is the Constitution never anticipated the situation today where one cannot function in the world at large at any time without one's eyes falling on some piece of copyright material or one's ears hearing a copyright piece of music. That means one cannot point a lens or open a microphone in public without some piece of copywrit material intruding.
Yes, but . . .

Incidental reproduction doctrine is attempting to grapple with it. Generally, the documentary producer shooting spontaneous news-value footage who inadvertently includes protected expression in a de minimus fashion would not incur liability (and this is NOT legal advice to anyone, just a statement of general principles -- consult a lawyer for any specific application). That is quite different from a film producer who has complete control over the environment that is placed before his or her lens.

Culture today is virtually defined by copyrighted material, unlike 200 years ago when such material was relatively rare and the majority of man's intellectual activity quickly entered the public domain. As you know, it's only relatively recently in history that copyright on a work was extended to the length of time it exists today.
Yes, but . . .

These are two different concepts, i.e. the prevelance of copyright-protected material, and the term afforded the copyright owner. I agree that the copyright term has been extended to ridiculous lengths that no longer comport with the stated Constitutional purpose of copyright protection. However, there's only one party to blame and that's Congress. They're the ones who have made the laws.

As regards the prevelance of copyright-protected material, I stand by my paragraph, above. If a film maker has control over what's in front of the lens, he can excluded protected material.

(IMHO, something similar to that of a patent at 16 years from the date of registry would be adequate to protect the artist's right to compensation for his work. Certainly it should not extend past his death even if the rights have been sold to a third party - works should enter the public domain upon the artist's death.
Patents grant an absolute right over use of an idea. Because the protection they afford is so great, the term is limited (and, currently, its 20 years -- up from the prior 17 year term). Copyright, on the other hand, has all sorts of exceptions and, also, must be tempered against the First Amendment interests that it might contravene. Accordingly, because the rights granted aren't absolute, the term is longer.

The intent of copyright (like patent) is an an incentive to creation, i.e. authors should be able to exploit, on an exclusive basis, their works of authorship, thereby encouraging the production of more works of authorship. The interest of someone who devotes their professional life to creating protected expression does so to provide for themselves and their family. Providing for one's family includes providing for them after you die, which is why the term is extended beyond death of the author.

While the right to profit from a creation certainly belongs to the creator, the thing of the creation itself ultimately belongs to the culture as a whole.
Which is why, unlike with patent, mere use, i.e. reading, viewing, etc., of copyright protected material is not one of the reserved rights.

Imagine if the Louvre had to pay a per-head royalty to a corporate owner for every person who views the Mona Lisa or every textbook that prints a copy of it needed permission from DaVinci's heirs!) We are quickly reaching a saturation point where every usable surface is covered with copywrit advertising, for example. The only way for an artist to comply is to insure they completely control the environment, impossible for any filmmaker short of a large studio working in the completely closed and artificial environment of a soundstage.
I'm not sure I follow this one. The Louvre does charge anyone who wants to photograph the Mona Lisa and use it in a textbook or some other fashion that does not constitute personal use. Most museums do. This, however, is a contractual right, not a right of a copyright owner, i.e. a condition of contract for entry into the museum and taking photographs is that you will not use the photograph for any non-commercial purpose.

Don't misunderstand me, I'm not in favour of abandoning copyright and making it open season - far from it. But there needs to be a balance between what is the intentional inclusion of protected materials in order to enhance the value of a new work and the incidental inclusion of protected materials simply because they are such ubiquitous and unavoidable intrusions into modern life.
There is . . . it's called "fair use doctrine" and "incidental reproduction doctrine." However, the courts have always taken the position that a fair use does not necessarily involve using the best means of reproduction, nor does it acknowledge a "difficulty" factor. With respect to a 6-second Simpsons clip playing on a television, as I and others have noted, an easy solution to avoid trespass on an exclusive right is a pinned track matte which either blurs or replaces the protected expression on the television -- if I, an amateur, can do it, it's not all that hard a thing to do.

When, however, there's a compelling First Amendment interest, e.g. a documentary on the balloon fatality at the Thanksgiving Day parade in New York a few years ago, the fact that there are marching bands playing music in the background should (at least in theory) not preclude using a clip of the incident with audio, even though the music is protected by copyright and used without permission.