| The multimedia producer should consult an entertainment attorney with expertise in multimedia production to determine what licenses may be needed. This review should be undertaken early before a lot of time and effort are invested developing a project. A competent attorney can suggest ways the producer can reduce costs and potential liability. For instance, the attorney could suggest that certain rights not be purchased if the producer is willing to fictionalize a story, rely on the fair use doctrine, change an individual's identity or add disclaimers. The attorney can also check the chain of title of all content that has been purchased for inclusion in the program. Recall that if the seller of some video footage, for instance, does not own all the rights needed to use the footage in a multimedia program, the buyer cannot receive all the rights needed irrespective of what the contract states.
Some licensors may allow the licensee to review the contracts, releases and other documents that prove the licensor has obtained all the needed rights. If the licensor will not permit third parties to review their contracts, the most the licensee may be able to obtain is a warranty from the licensor that he owns the rights he is selling. If possible, the licensor should indemnify the licensee for any loss sustained from breach of his warranties.
The licensee will also want the licensor to warrant that the property does not infringe on anyone else's rights (including rights of defamation, invasion of privacy, right of publicity, trademark and copyright) and that there are no claims or litigation outstanding in regard to the property. If the licensor is a corporation or partnership, the licensee may want it to warrant that it has authority to enter into the license.
Besides express warranties found in a contract, there may be some warranties implied by law. The implied warranties of merchantability, for example, may exist even if the contract does not mention it.97 Products can be sold without a warranty when the seller adds a prominent disclaimer notifying the buyer that the product is sold "as is" without any implied warranties.98
Footnotes and citations:
97 Cal. Commercial Code § 2314 (1993); see U.C.C. § 2314(c).
98 To be effective the disclaimer should be prominent.
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