What You Can’t Use In Your Movie

There are several categories of laws that impose important limits on what you can include in a film, and it is important to be aware of these categories, the differences among them, and the limits for each one. This article provides a very simplified summary of these issues.

Stolen Ideas. An all-too-common fact pattern in the film industry is that Ms. Idea Person tells Mr. Producer a great idea for a film with the expectation of being paid if the idea is used, and Mr. Producer runs off and uses the idea in a film without paying Ms. Idea Person. In these cases, Ms. Idea Person is likely to sue for breach of an implied-in-fact contract, and the outcome will likely depend on whether both parties had the expectation of payment, such as if Mr. Producer requested Ms. Idea Person to submit her ideas. In contrast, an unsolicited disclosure by Ms. Idea Person during lunchtime chatter would not give rise to an implied-in-fact contract, but it might give rise to a successful claim for misappropriation before a sympathetic jury. In short, be wary of using ideas given to you by third parties, since contrary to popular belief, ideas are not “free as air.”

Copyright. Copyright law prohibits the use of all or a part of a pre-existing work of almost any kind (e.g., book, painting, film, picture, or recording, referred to herein as a “Prior Work”) in a new work (“New Work”) without permission of the owner of the Prior Work unless the copyright term has expired (which takes a long time). The prohibited use includes wholesale copying of all or a part of the Prior Work as well as indirect use, such as copying the plot line of a Prior Work for a New Work (which makes the New Work an unauthorized “derivative work” of the Prior Work).

There are two common defenses to a copyright infringement claim, which often blend together: (a) the first is that the New Work is so different from the Prior Work that it is neither a copy nor a derivative work and (b) the second is that in any event the New Work is protected by the “fair use” defense. While there is a mountain of case law on both defenses, the cases really boil down to what a court thinks with its heart is fair. Thus, you won’t be too far off if you ask a few people if they think that your proposed use of the Prior Work is fair and get a consistent positive answer. If you don’t get a consistent positive answer, the safest course is “if in doubt, leave it out.”

Trademark. In contrast to copyright law, the purpose of trademark law is to avoid consumer confusion as to the source of a product or service. Thus, trademark law prevents the use of one company’s trademark in connection with another company’s product (including a film) or service (“New Product/Service”) in a manner that suggests to a reasonable person that the owner of the trademark either is the source of or endorses the New Product/Service. Film companies are therefore free to have third-party trademarks conspicuously appear in their films, such as store signage or on products or cars that appear in the film, if it does not appear that the owner of the trademark endorsed the film, and the film does not imply false, nasty things about the trademarked product being used as intended (in which case the trademark owner may sue for trade libel). Unfortunately, many clearance services do not distinguish between copyright and trademark, and they insist on expunging all trademarks, which adds unnecessary costs in filming and editing.

Right of Publicity. The simplest way to think of the right of publicity is to assume that, putting aside defenses (discussed below), there is a valid claim any time anybody uses anyone’s name, likeness, or voice (or imitation thereof) in any public manner. Anyone can be a plaintiff, not just celebrities. Also, the right applies to any public use, not just in advertising. It does not even require the use of the plaintiff’s actual name, likeness, or voice; liability can be based on use of the plaintiff’s nickname or a “look-alike” or voice imitation. With that background, here is a list of common defenses:

Incidental Use: There is no valid claim if the person is in the background, such as part of a crowd, or appears briefly and incidentally.

Coincidental Use: There is no valid claim if a character in a film coincidentally happens to have the same name as an actual person.

Matters of Public Interest: The First Amendment provides an absolute defense to right of publicity claims for publications (including films) on matters of public interest. The definition of “public interest” sweeps up any publication discussing public figures and celebrities, as well as publications regarding private citizens who become associated with a public issue. Thus, you do not need anyone’s consent to make a film about a matter of public interest that you read about in a book or article as long as you steer clear of the other limits discussed in this article.

Parodies: The courts routinely hold that parodies are protected against right-of-publicity claims by the First Amendment, even if the parody does not relate to a matter of public interest.

Expressive Works: Some states hold that the First Amendment protects any form of entertainment, art, or other expressive work against a right of publicity claim, while other courts limit this defense to works that are “transformative” (a very fuzzy concept). When this approach is applied, it does not matter whether the work touches on a matter of public interest.

Implied Consent: Another defense is that the plaintiff gave implied consent. For example, actors in a film should be held to implicitly consent to use of their pictures in advertisements for the film, just as those who pose for a picture should be held to implicitly consent to an intended use of the picture that they were aware of at the time. Some courts (but not all) have held that merely doing something in public is implied consent to its publication. For example, a woman that flashed her breasts in public and found herself prominently featured in one of the infamous Girls Gone Wild videos was held to have implicitly consented to it.

Defamation. Defamation occurs when there is a written or spoken statement asserting false facts that a reasonable person would find offensive about a living person. But one person’s insult is another’s compliment: For example, a soldier loosely portrayed in “The Hurt Locker” sued because he was offended by certain inaccuracies in the film, but the Ninth Circuit held that the overall portrayal was heroic, so his case was dismissed.

If the plaintiff is a private person, the plaintiff need only prove that the defendant made the statement either knowing its falsity or with negligence, such as by not using reasonable efforts to verify third-party information. If the plaintiff is a public figure (or becomes so due to association with a newsworthy event), then the plaintiff must show by clear and convincing evidence that the defendant made the statement either knowing its falsity or with reckless disregard to its accuracy – mere negligence is not enough. This higher standard is the so-called “actual malice” standard required under the First Amendment.

You can avoid a valid defamation claim by eliminating one or more elements of the cause of action, such as by either (a) not including offensive information, (b) making sure the statements are factually accurate, or (c) clearly stating that the film is fictionalized (preferably at the beginning of the film, although some cases permit it at the end).

Conclusion. To be sued is to lose, so following the rules discussed above will minimize the risk of being dragged into litigation while permitting the maximum creative freedom to make the film you want.