Q: What does it mean to clear rights?
A: Clearing rights involves determining whether material in your project infringes the rights of any other person. Areas of law relevant to clearing your production include copyright, trademark, right of publicity, right of privacy and defamation. Clearance problems can occur if you incorporate someone else's music, poem, image or other material into your production without their authorization.
Q: Why should I bother to clear rights in my work?
A: If you use 3rd party material without permission, you risk being sued and having the release of your project delayed or prohibited. Many distributors (e.g., networks, publishing companies, record labels) will not accept your work until they are satisfied that all rights have been cleared.
Q: What material is protected by copyright?
A: Current copyright law protects original works of authorship (e.g., literary works, song lyrics, photographs, artwork, films, and designs) as soon as the work is fixed in a tangible medium of expression. That language comes from the Copyright Act and means that creative material has a valid copyright as soon as it is written down or recorded. Registration with the Copyright Office is recommended but not required. Furthermore, you cannot assume that material is not protected by copyright just because the material contains no copyright notice or the material is available on the internet.
Q: When can I use copyrighted material without permission?
A: There are some situations in which you may use copyrighted material without permission.
Use of public domain material. Copyrights last for a specified period of time. Once the copyright expires, the work falls into the public domain and you can use the work in anyway you like without permission. Here are guidelines on the duration of copyright.
Use covered by the First Amendment. If the copyrighted work is the only source of information and that information is vital to the public's understanding of certain events, you may be able to use the work without the copyright owner's permission.
Use covered by the Fair Use Doctrine. Fair Use allows you to use a reasonable portion of a copyrighted work without permission. Unfortunately, there is no bright line rule in determining what qualifies as fair use. Courts use a 4-factor test to determine whether a specific use qualifies as a fair use. No single factor is determinative.
- What is the purpose and character of the use? (i.e., Was the use for commercial purposes or for non-profit purposes?)
- What is the nature of the copyrighted work?
- How much of the work is used?
- Does the use harm the copyright owner's ability to market the work?
Use that qualifies as a parody. A parody is a form of commentary that borrows liberally from the original work in order to make fun of it. In order to qualify as a parody, the work must be a commentary on the original author's work.
Use of material created by the U.S. government. United States government works created by federal government employees or commissioned as works made for hire are in the public domain. The same does not necessarily hold true for state and local government works which may be protected by copyright.
Q: How are trademarks relevant in the clearance process?
A: A trademark or a service mark is a word, a phrase, a logo, or a graphic symbol used for identification. Trademarks identify products and service marks identify services. Trademarks are relevant to titles, references and brand-named products used in your media production.
It is advisable to obtain written consent from owners of trademarks and service marks depicted in your production. However, there is a less conservative approach that clears trademarks only if they are prominently featured or used in a negative manner. The good news is many companies want their names to appear in the media and will sometimes even pay or provide free products for the privilege of a product placement in a movie or other media production.
Q: Are there other rights that should be cleared?
A: Yes, your work should be reviewed for potential right of privacy, right of publicity and defamation claims. These rights are based on state law so their application varies from state to state.
The Right of Privacy protects individuals from the disclosure of embarrassing private facts; false light (e.g., photographs/information used to create a misleading impression of someone); and intrusion (e.g., use of hidden cameras).
The Right of Publicity allows each individual to control and profit from the commercial value of his or her own identity (e.g., name, likeness, voice).
Defamation protects people from damage to their reputation. There may be a risk of a defamation claim if your project contains any statements (or images) that might be considered embarrassing or offensive to a real person or organization.
A properly drafted and executed release can protect the media producer from claims of privacy, publicity and defamation.
Q: How do I get copyright permission and permission for other rights?
A: Clearing rights can be time-consuming and paper intensive. You must first identify the rights owners. Some materials require permission from multiple parties. For example, if you want to use a photograph of a contemporary sculpture in your book, you would need permission from the copyright owner of the sculpture as well as the photographer who took the photograph of the sculpture.
Large companies often have their own forms you can complete to request permission. If you draft your own request, it should include
- A description of your project (e.g., title, publisher, number of copies to be made, etc.);
- Identification of the material you want to use;
- A description of how you want to use the material and
- The scope of rights you need (formats, territories, languages).
ABOUT THE WRITER:
Joy R. Butler is an attorney with a practice focusing on business, intellectual property and entertainment law.
No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written permission of the author.
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