How does a clearance lawyer determine what material has to be removed?

How does a clearance lawyer determine what material has to be removed from a film production?

Dave Stern: It’s really a question of risk. The general rule is: any time that a producer or individual is using someone else’s IP, or their image or likeness, any intellectual property rights that belong to someone else (i.e., a third-party entity), the producer needs their permission to do so.

There are some exceptions to that; that’s how productions get made. A production, a feature film, a TV series – you want it to seem like it’s part of society, there might be some incidental references but there are some exceptions to that. In Canada, we have an exemption to copyright infringement called fair dealing. In the US, it’s known as fair use. This is basically a series of tests; if you complete it, there is a chance that you would be able to rely on the exception to copyright infringement so you could potentially use that material without a third-party claim. You would have a “legal right” to use that material.

There is also incidental use. So, if a brand or logo or individual is caught on camera incidentally – maybe a split second, not in focus, should be permissible to use but it’s really a question of risk. Sometimes, something comes up in a script clearance report or rough cut; e.g., if I’m reviewing a script clearance report and there is a list of names, the report will tell me how many individuals have that first and last name in the area, province, city, etc. Maybe there is one with the same job as the character which is being portrayed. We want to make sure that we avoid any similarities, especially if there is a negative inference or connotation with that character or anything that could potentially damage someone’s reputation, we need to be mindful of that risk.

There are things above and beyond a script clearance that you’ll see in a rough cut (or maybe not even in a rough cut) that an entertainment lawyer needs to be able to flag. E.g., if there is a scene with two kids hanging out in a bedroom:

• What does the bedroom look like?
• Is there poster art?
• Are the kids wearing t-shirts or shoes with logos on them?
• Are there iPhones in the shot?
• Other third-party technology with logos showing?
• Would a reasonable person know that that technology belongs to a particular third-party entity?
• How much of it is in focus, are they talking about it, is there a positive or negative reference to it?

E.g., a kid running away from a bullying scene wearing a pair of Nike shoes, there might be a negative connotation associated with that, so we need to be mindful of the risk and if there is a risk, and if we don’t feel confident that it would meet any type of exemption to copyright infringement, or fair dealing test or incidental use reference, we need to ask that third party for permission.

Maybe that permission comes with some sort of monetary compensation for them but some type of release would ultimately need to be signed. So, it’s really a question of risk and the goal of an entertainment lawyer is ideally to get risk to zero but practically to just reduce the risk as much as possible.

When it comes to these exemption to copyright infringement tests, such as fair dealing, that is a defence mechanism. So, even if you go through these tests and you’re confident that you can meet those thresholds, you can’t exactly hold it out as a waving flag and say, “We’re fine, we’ve passed these tests, we can now move forward to production!” There is always a possibility that an entity might sue the production or might in some way try to interfere with the exploitation of that project. So, even if we’re confident legally, we need to be mindful of how that’s going to play out practically, because you still have to defend that claim. So, in the defence of that claim, you would go through the tests of fair dealing to prove it but ultimately if there’s even a chance of that coming up, the lawyer needs to provide a fair dealing analysis/opinion on it and provide that to the insurer so that the insurer feels comfortable enough to provide the E&O policy.

Dave Stern is an entertainment lawyer and partner at Blaney McMurtry LLP

Are you a producer in Canada or the US? Get a quote for producer’s E&O insurance here.

Related:

• Can an idea be copyrighted?
• Clearance procedures – E&O
• eBook: Producer's E&O Insurance 101
• YouTube: Errors and omissions insurance (E&O) – Dave Stern

About: Based in the heart of Toronto’s financial district, Blaney McMurtry LLP is one of Canada's premier law firms. https://www.blaney.com/

About: Front Row Insurance Brokers Inc. is an independent insurance broker that specializes in the entertainment industry – specifically, the film industry. Front Row works hard to provide insurance protection at a very low cost. Should a claim occur, Front Row works diligently with clients and insurers to expedite the payment.

Disclaimer: Informational statements regarding insurance coverage are for general description purposes only. These statements do not amend, modify or supplement any insurance policy. Consult the actual policy or your broker for details regarding terms, conditions, coverage, exclusions, products, services and programs which may be available to you. Your eligibility for particular products and services is subject to the final determination of underwriting qualifications and acceptance by the insurance underwriting company providing such products or services. This website does not make any representations that coverage does or does not exist for any particular claim or loss, or type of claim or loss, under any policy. Whether coverage exists or does not exist for any particular claim or loss under any policy depends on the facts and circumstances involved in the claim or loss and all applicable policy wording.