| When a multimedia producer wants to incorporate existing film or television footage in a new work, many of the same copyright, character, trademark, title and defamation issues previously mentioned in the text discussion apply. The matter can become even more tangled when there are multiple owners of rights in a motion picture.
For example, a film may be based on a copyrighted book. It could incorporate music, the copyright to which is jointly held by a composer, musician, and record company. Permissions may be needed from actors to use their images and voices, and from owners of rights to special effects, animation, and works of art incorporated in the film. And what if the motion picture incorporated stock footage clips? This footage was probably licensed for use in the original film only.
If a film is based on a book, the studio probably bought the "movie rights" from the book author but the studio will not necessarily own any derivative rights, such as electronic publishing rights.
Movie studios may only agree to license clips from their films on a quit-claim basis -- without any warranties as to ownership of the various rights needed. It can be arduous for the producer to determine the identity of all the copyright owners and license the appropriate rights. This may prove impossible if the film clip owner will not reveal the contents of its contracts, or if the contracts have been lost or destroyed.
If the film is based on another work, such as a book, the right to use the book may have expired unbeknownst to the film clip owner. Under federal copyright law prior to 1978, a copyright lasted twenty-eight years and could be renewed for an additional twenty-eight years.55 If the author of a book licensed movie rights to a studio, and if he died before the second copyright term began, his estate would own the copyright to the second term.56 The studio would not own such rights, even if its contract with the author purported to transfer such rights. This is the issue discussed in the "Rear Window" case.57
The "Rear Window" case is of concern to multimedia producers because it may limit use of copyrighted material they license. If a producer incorporates work created before 1978, which is still in its first twenty-eight year copyright term, the producer may find that rights to the work can end abruptly if the author dies and his estate refuses to relicense it. The estate may refuse permission to use the work even if the author agreed to assign the second term to the producer.58
Another potential problem arises when distribution rights to a film clip are shared by several parties, as when a studio owns domestic rights and foreign rights have been sold to other distributors. Can the owner of such foreign distribution rights prevent a multimedia producer from distributing a program with the clip in foreign territories? The answer is unclear.
If a film has been designated as culturally, historically or aesthetically significant under the National Film Preservation Act of 1988,59 and added to the national registry, additional restrictions may apply. This Act was passed in response to the movement to colorize old black and white movies. Under the Act, twenty-three films a year can be added to the registry. While modification of these films are not prohibited, a disclaimer must be added.
Another issue arises when a multimedia producer wants to incorporate footage of a crowd scene in her work. While filming a person in a public place is usually not an invasion of their privacy,60 incorporation of a recognizable person's identity in a film may be an infringement of their right of publicity.
Whether a use is infringing depends upon whether the image is used in a commercial context, such as on a product, or in a newsworthy context, such as in a magazine or documentary program.61 The latter use is protected under the First Amendment. Thus, producers should avoid incorporating a person's image in a purely commercial program or in advertising for such a program unless a release has been obtained.
The right of publicity is not limited to a person's image. Performances and objects closely associated with one's identity may also be protected. The appropriation of a photo of a race car with distinctive markings for use in a cigarette ad was held to be infringement of the driver's identity even though he was not shown.62
The unauthorized use of a celebrity's persona or voice can also violate state and federal laws against unfair competition and trademark infringement. In Waits v. Frito-Lay Inc.,63 the voice of singer Tom Waits was imitated in a Frito-Lay commercial. Although Waits's actual voice was not used, the court held that this use amounted to a false endorsement of a product. The court stated that a distinctive attribute of a celebrity could amount to an unregistered commercial trademark.
Of course, a person's right to restrict the use of their name, likeness, and voice has to be balanced against the rights of others (i.e., journalists and filmmakers) under the First Amendment. Suppose a newspaper publisher wants to place a picture of a sports figure in its paper. Is permission required? What if 60 Minutes wants to broadcast an expose~ of a corrupt politician? What if Kitty Kelley wants to write a critical biography of Frank Sinatra?
In each of these instances, a person's name and likeness is being used on a "product" sold to consumers. Products such as books, movies, and plays, however, are also forms of expression protected by the First Amendment. The First Amendment allows journalists and writers to freely write about others without their consent. Otherwise, subjects could prevent any critical reporting of their activities. When one person's right of publicity conflicts with another person's rights under the First Amendment, the First Amendment rights often prevail.
When a use is newsworthy, or in the context of a documentary, biography or parody, the First Amendment will usually protect the producer. In Hicks v. Casablanca Records,64 Casablanca Records made a movie called "Agatha" about the mystery writer Agatha Christie. The film portrayed her as an emotionally unstable criminal. An heir brought suit alleging infringement of Christie's right of publicity.
The court held that Casablanca's rights under the First Amendment were paramount to the estate's rights. The court reasoned that the First Amendment outweighed the right of publicity here because the subject was a public figure, and the events portrayed were obviously fictitious.
When a multimedia producer wants to license a motion picture clip portraying an actor(s), the producer should contact the Screen Actor's Guild (SAG) or the American Federation for Radio and Television Artists (AFTRA) to seek permission to use the actor's image. If the performance was first recorded on film, contact SAG; if the performance was first recorded on videotape, contact AFTRA.
The unions will supply the name of the actor's agent who can then be contacted to obtain permission to use the clip. When an actor's name is unknown it may be difficult to match his or her image with the names listed in the credits. Moreover, if an actor is not a guild member, or is deceased, it may be difficult to locate the holder of the rights.
In working with unions and guilds, the multimedia producer should recognize that a system of fees and royalty payments for electronic publishing is just developing. Some guilds have been willing to sign One Production Only (OPO) deals with multimedia producers that do not require them to become guild signatories for all productions. The Writer's Guild, for instance, allows a production company to become a Guild signatory for one production by signing a Letter of Adherence. This letter agreement does not mandate minimum scale payments or compliance with most guild rules. The producer need only agree to make pension and health fund payments.
Footnotes and citations:
55 The Copyright Act of 1909, 35 Stat. 1075, 17 U.S.C. § 1 et seq. (1976 ed.).
56 Assuming the estate renewed the copyright.
57 Stewart v. Abend, 495 U.S. 207, 219 (1990).
58 There are some limitations on termination of derivative rights. See 17 U.S.C. § 304(c) (1994).
59 2 U.S.C. § 178a (1994).
60 Note that publication of a photograph of a person whose underwear was exposed in public was held an invasion of privacy. Daily Times Democrat v. Graham, 162 So.2d 474 (1964).
61 See, e.g., Finger v. Omni Publications Intern, 566 N.E.2d 141 (N.Y. 1990).
62 Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974).
63 Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992).
64 Hicks v. Casablanca Records, 464 F. Supp. 426 (S.D.N.Y. 1978).
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