Using images of deceased actors in a documentary...

[Greg Quinn]

Does anyone know if the use of images of deceased actors in a serious documentary (the documentary is about an early 1970's movie) is covered by the first amendment, or if the estate's of the actors need to sign off on it first (all the actors in this case resided in Los Angeles and were covered by the California law protecting use of their images, sound, etc.). Similarly for a trailer of this documentary, since the trailer is effectively advertising a product, would it be the same situation? I've never needed to address this issue before.

Thanks
Greg

[Daniel Ross]

Someone still owns the rights to it. The footage may have nothing to do with the actors themselves, but the production/distribution companies.
When someone dies, copyright/patents/etc. transfer to their next of kin, or through their will, etc.

You would need the same permission as with any one else.

Any first amendment issues are irrelevant to them being dead or alive. If your goal is purely informative as would be a news story, that could protect you. But using footage would be disallowed there for the most part, I believe, anyway. That would allow you to film and distribute it without their permission-- not use their footage.

The only thing that might matter here is that it is more vague and less monitored. If someone is dead, no one may care any more if their footage is used. But with anyone worth using in the film (since the subject does seem to be celebrities), that's very unlikely. It might also be a little harder to prove who has the rights, etc., but that would just be a delay, not a hindrance on their suit against you.

[Greg Quinn]

Daniel, thanks for your reply - sorry that I wasn't very clear in my post - I do have the rights to show footage from the feature film, but I have other contemporaneous, behind-the-scenes, still image photographs of the actors that I want to show in both the documentary and the trailer for the documentary. It's not clear to me that I can do this without permission from the respective estates.

[Daniel Ross]

Doesn't matter. e.g. Having rights to one song wouldn't give you rights to the whole album.
If you have rights to the film, great. That's perhaps the biggest step.
The only thing that might have a loophole is previously used media footage, but that would likely be owned by the respective media companies.

[Greg Quinn]

Thanks again for your reply, and again sorry for the confusion here; I do have the rights from both the filmmaker to show footage, and from the various copyright holders of the contemporaneous photographs I mentioned - I wouldn't have a documentary without those.

This was not a copyrights question, but a question about possible first amendment rights to use the image of a dead person (to put this in context, probably one of the best known example is the way that the Presley Estate strictly control commercial use of Elvis's image).

[Daniel Ross]

Either you have rights or you don't. It's fairly simple.
The estate does not own footage owned by someone else, unless there is some strange specific deal in place.
This IS about copyright. That's exactly what it is. The copyright is owned by someone, perhaps the estate, and you need permission from them. The end.
If you sign a waiver and have your footage/likeness in a film, you lose the rights to later tell people they can't use it in a documentary (assuming the contract extended to this, and I'd be very surprised if it didn't).
The media footage is vague. Same with photographs.
If you have permission from the copyright owner, I don't see a problem.

I'm not a laywer, but it's pretty simple-- you need permission from the person who owns the copyright to the material, whoever that may be.

[Greg Quinn]

Originally Posted by Daniel Ross

This IS about copyright.

Daniel, as an extreme example, if I used footage from an Elvis movie (that I'd paid huge amounts to Paramount/Universal for copyright permission to use) in a TV advert for a soap product, the Presley estate would sue me because I'm using his image for commercial purposes (even though they don't own the copyright on the movie the footage is taken from). My question was whether this kind of estate's control applied to the use of deceased actor's images in documentaries and trailers for these documentaries, or whether this is protected by the First Amendment.

I was just wondering whether anyone else here had come up against this issue in making a documentary.

[Daniel Ross]

If there is dual ownership on the copyright, that makes sense. If not, I see no reason that would hold up legally.
However, Elvis is a big star. Perhaps a judge just cut him a break.

I really have no idea about such cases. It doesn't make any sense in terms of rights, though.

[Paul Tauger]

Originally Posted by Greg Quinn

Does anyone know if the use of images of deceased actors in a serious documentary (the documentary is about an early 1970's movie) is covered by the first amendment, or if the estate's of the actors need to sign off on it first (all the actors in this case resided in Los Angeles and were covered by the California law protecting use of their images, sound, etc.). Similarly for a trailer of this documentary, since the trailer is effectively advertising a product, would it be the same situation? I've never needed to address this issue before.

Thanks
Greg

Commercial appropriation of likeness laws vary from jurisdiction to jurisdiction and are not usually based on the residence of the person whose likeness you wish to use. There are additional concerns as well, e.g. false light defamation, etc. Finally, there are copyright issues with respect to ownership of the image itself. It is possible that your use would come within fair use and may not be subject to commercial appropriation concerns. However, there's no way to tell without reviewing the project in detail. Sorry, but the best thing you can do is consult a lawyer. Your local bar association can provide the appropriate referral.