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Commissioning New Works

Performer Deals

Performer deals typically involve a well-known artist either performing or writing music. For example, the James Bond series often features a well-known artist writing or performing the theme song, which plays during the opening credits; Paul and Linda McCartney wrote Live and Let Die, which Paul’s band, Wings, performed; Sheena Easton performed For Your Eyes Only; Duran Duran co-wrote and performed A View To a Kill; A-Ha co-wrote and performed The Living Daylights; Bono and The Edge of U2 wrote and Tina Turner performed GoldenEye; Sheryl Crow co-wrote and performed Tomorrow Never Dies; Garbage performed The World Is Not Enough; Madonna co-wrote and performed Die Another Day; Adele co-wrote and performed Skyfall; and the list goes on. Doing music for Bond is a right of passage.

A record label must consent for its artist to perform for a film. Record labels sign artists exclusively, but may waive exclusivity for a percentage of royalties. Artists may invoke an exclusion to exclude the record company from weighing in on a project, but not all exclusions grant the scope of rights required for films[1]. If consent is granted, the record label will want some role to play in the soundtrack album deal. If the artist is a songwriter, he or she may be under an exclusive agreement with a publisher. The publisher must consent for its songwriter to write for a film. If consent is granted, the publisher will want to own publishing rights, income, or both in any songs written or composed for the film.

Composer Deals

The production company typically negotiates composer deals as a work made for hire, which work is specially ordered or commissioned for use as part of a motion picture. The company is the legal author and owner in the copyright, owns all results and proceeds of the composer’s services, administers all rights in the work, and uses the work on a royalty-free basis in the film, and any prequels, sequels, spinoffs, or remakes. In the case of independent films with modest budgets, a composer may grant the production company a license in the music, while retaining ownership in the work and its sound recording to bolster any up front fees with royalty income generated from publishing on the back end.

Fantasia

Walt Disney’s Fantasia is one of the most successful animated feature films of the last century. Its soundtrack was so innovative that it spawned the term “Fantasound,” a precursor to surround sound. Walt Disney Productions hired conductor Leopold Stokowski to arrange seven classical masterpieces and conduct the Philadelphia Orchestra[2]. Walt Disney Productions separately hired the Philadelphia Orchestra to perform six pre-existing works by Bach, Tchaikovsky, Stravinsky, Beethoven, Ponchielli, and Mussorgsky. The Hollywood Orchestra had already recorded Dukas’ The Sorcerer’s Apprentice some time prior[3]. Of the seven works, only Stravinsky’s Rite of Spring still enjoyed copyright protection in non-U.S. countries[4]. Walt Disney Productions thus licensed the rights to the composition from Stravinsky’s publisher to distribute the film in countries where it was still protected. In 1991, Walt Disney re-released Fantasia on laser disc and videocassette, which earned a windfall for the film studio followed by several lawsuits by the orchestra, conductor’s estate, and Stravinsky’s publisher.

In the Fantasia cases, courts generally ruled in favor of Walt Disney Productions. The first case brought by the orchestra alleged a joint authorship in the film[5]. If the orchestra was a joint author with the film studio, they wanted a share of profits from the 1991 release. The next case brought by the executor of the conductor’s estate alleged the video release was outside the scope of the original agreement. If interpreted narrowly, the video release would require a new agreement and corresponding fee. Finally, the music publisher alleged that the video release fell outside the scope of rights granted to the film studio. If interpreted narrowly, the film studio would owe additional licensing fees. The Pennsylvania court ruled that the orchestra’s work was made for hire; they were not joint authors and thus not entitled to a share of profits. The New York courts ruled that language was sufficiently broad in both agreements with the composer and the publisher to encompass the video release, no new agreements needed to be negotiated, and no fees paid for the new use on videocassette.

Not all courts agree on the broad interpretation shown by the Fantasia courts. A California court interpreted granting language narrowly where the parties did not expressly agree to release the musical work on videocassette[6]. Thus, absent language to the contrary, a license does not grant rights to a filmmaker for new uses. New uses typically result from technological advances in content delivery systems. Videocassettes, laser discs, and other new or developing methods of content delivery systems create opportunities for rights holders to negotiate new agreements and fees. Most licenses now contain special language that prepares for these inevitable advances. Because courts are divided whether to interpret language narrowly or broadly, the best protection is gained at the outset of the agreement.

Licensing Pre-Existing Works

There is no fair use of music in film[7]; all pre-existing works must be cleared. Some companies specialize in clearing music for film and will negotiate licenses with copyright holders, which include songwriters, publishers, and record labels. Placement of music in film is great exposure for an artist and a money maker for rights holders. Profits derive from exclusive rights acquired through federal copyright registration which grants rights holders temporary monopolies on use of registered works. It was not until 1972 that sound recordings received federal copyright protection; before that the law only protected musical works.

Musical works are licensed separately from sound recordings. Sound recordings are the recorded performance of a song. A song usually consists of lyrics and music. Thus, musical works include sheet music and lyrics, and sound recordings include the recorded performance. Thus, using music and lyrics only requires only a license in the copyright to the musical work, but using a recorded performance requires not only a license in the musical work, but also a license in the sound recording, which is embodied in the masters. For example, a karaoke scene in Beyond the Lights required a license in the musical work to reproduce the music and lyrics, but a replay of the album version of a song in the soundtrack required a license in the masters as well as the musical work to reproduce the recorded performance in the film.

Musical Works

At a very basic level authorship and ownership begins in the songwriter. Sometimes the songwriter is also the publisher, as may be the case with independent artists. More often, the publisher is a business entity, which may share copyright ownership with the writer, places the title in various forms of media, and administers both the publishers and the writer’s shares in the copyright. Thus, a basic license to access exclusive rights of a musical work will specify what rights are granted, on what terms, and for how much compensation. Film requires a special type of license called a synchronization license, which describes the function of music in film: audio aspects (music) synchronize with visual aspects (film) to project a unified image. All licenses for musical works in film require a synchronization license, whether or not the sound recording is used.

Licenses for musical works in film also require a license to perform the work publicly in non-U.S. theaters. Performance rights organizations like the American Society of Composers, Authors, & Publishers (ASCAP) stopped collecting royalties from theaters in the United States due to an antitrust ruling in 1948[8]. As a result, public performance royalties generated by films do not accrue in the United States, but serve a generous source of income in non-U.S. exhibitions. Walt Disney Productions counted on this revenue stream as a major source of income for Fantasia, but the onset of World War II prevented exhibition in Europe causing its lackluster returns in 1940.

Sound Recordings

Record labels own masters and accordingly administer master use licenses. A master use license will grant rights in the sound recording, or recorded performance of a musical work. Despite a record label, an artist may veto permission if he or she does not approve of how the music is represented. It may be aligned with a scene that contravenes his or her branding, or, it may not be viewed as a fair offer. An artist may have negotiated control mechanisms into the recording agreement to trump decisions by the record label on master use licenses. Even after a master use license is granted, certain exclusions apply. Common exclusions restrict the use of an artist’s name to screen credit only; no other uses of the artist’s name, likeness, or other personal characteristics or traits may be used to commercially exploit the film.

Making a Soundtrack Album

A great soundtrack makes a good movie, iconic. Music animates a film in the mind of a listener long after the crawl. Composure of a soundtrack album varies. The soundtrack album may, but more often does not, include music from the score. Sometimes, films release one score album and another of album of popular music. An example is the Twilight Saga, for which Carter Burwell composed the score, but also features a various artists album for each segment. Harry Potter released a series of score albums with multiple composers. Still other films artistically pair music with dialogue such as Pulp Fiction and Natural Born Killers. There are even films that release dialogue only – Fear and Loathing in Las Vegas is one.

Soundtrack Album Deals

Production companies select a record label to release the soundtrack album. The selection process factors in any featured artists and production costs. A record label with a featured artist may negotiate deals for the soundtrack, singles, or theme song. A soundtrack album is also expensive. In addition to recording and artist performance fees, costs include converting a film recording to a master[9], and re-use fees. Once selected, the production company will license the rights it has acquired in any pre-existing works or commissioned works to the record label, who makes and distributes the album.

Rights ownership in the soundtrack album is split between the record label and production company. The label generally owns the masters and licenses them to the production company. The production company owns all film and non-record rights, while the record label retains ownership in phonograph records. In this way, the production company and record label each retain ownership in rights suited to their respective businesses. Publishing is a critical deal point. A production company will prefer to administer synchronization licenses to control how the original music is used in any competing productions.

The Music Supervisor

A good music supervisor is well paid. Skills required of a music supervisor include some or all of the following: clearance, negotiating a soundtrack album deal, negotiating performer agreements, assisting in the preparation of cue sheets, and selecting a composer. A music supervisor typically works under a producer’s supervision to assist in the negotiation and documentation of all music licenses and agreements.

Cue Sheets

Cue sheets log musical works in a motion picture. The log includes the film title, film title aka, music length, production company, song title, composer, publisher, performing rights organization, timing, and usage. If there is more than one composer, or if the writer and publisher split royalties on other than a 50/50 basis, the split must be recorded. Sometimes writers prepare their own cue sheets for comparison with the music supervisor. Once completed, the cue sheet is submitted to the publisher or performing rights organization. Royalties are calculated from the cue sheet. It is critical that information represented be detailed and accurate for the rights holder to get paid.

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A producer begins clearance not less than one month prior to principal photography. The team is typically a script clearance service and an attorney. The former cites aspects that reference real-world people or things, and the latter, legal implications that might arise as a result. Together, they provide the level of risk for each aspect under scrutiny.

Clearance means material is used or cut. Which way depends on the level of risk, and if that risk is acceptable by the errors and omissions insurance carrier. Carriers may agree to flagged items because the risk is within the desired threshold, or, they may require the producer seek further documentation. Further documentation includes licenses and releases.

Personal Rights

Privacy Rights

Privacy rights blossomed as a result of yellow journalism and the invention of the hand held camera, the Kodak Brownie, introduced by Eastman Kodak to the mass market in 1901. State tort laws developed privacy rights to protect the public from unauthorized exposure of their private lives, which exposure can result in personal injury. Personal injury arises in four ways: (1) intrusion into private life, either physically or electronically; (2) disclosure of private facts; (3) depiction in a false light, which may not be false but simply misleads the public in some way; and, (4) misappropriation of name, image, and likeness.

Some scripts inadvertently use the names of real people. To reduce risk, producers can change character attributes to make identification less likely. In contrast, documentaries intend to use real people, or describe places, events, or characters that may inadvertently expose identities. In that event, insurance carriers are likely to demand that all living persons depicted in the film sign personal releases to avoid potential privacy claims.

Freedom of the Press

Courts balance a free press with privacy rights. Private persons may expect greater privacy than public figures. Public figures such as politicians or celebrities thrust themselves into the spotlight and thus may expect less privacy. Some private persons thrust themselves into the spotlight inadvertently in a public trial. If a producer exposes a public figure, the story may be justified as newsworthy. In its first privacy case, a court held liable a producer, who told the story of a prostitute acquitted for murder, which actions took place years before she reformed her life and married. The court ruled that depiction of her real name and past conduct was not newsworthy and accordingly violated her right to privacy[1].

Defamation

Defamation is publication of a false statement of fact concerning the individual which results in damage to reputation. Defamation laws arise under state tort law, which laws distinguish between written defamation, or libel, and spoken defamation, or slander. It is possible to avoid liability if the statement is true, but one cannot escape from rights assertion where the same statement discloses private, embarrassing facts about an individual.

Disclaimers

Disclaimers do not guarantee avoidance of defamation. Examples of disclaimers will state that a film is fictitious, or depiction of real people is unintentional. A little league coach sued Paramount Pictures for defamation in Hard Ball, which was based upon a preexisting work[2]. The studio used a disclaimer, which stated that their film was “fictitious,” but the court found it insufficient to shield them from an action for defamation. Fortunately, viable defamation claims only arise in the living; there is no actionable claim for deceased persons[3].

Publicity Rights

Publicity rights derive from commercial exploitation of identity. Aspects of identity include an image, name, photograph, likeness, voice, or other characteristic. Publicity rights are descendible property; they increase in value, at times even more posthumously. Thus, living heirs may assert publicity rights where others profit from unauthorized use of identity. Private persons not public figures assert publicity rights if some aspect of identity is used without permission in a commercial manner, such as endorsing a product or service.

In one case, plaintiff and defendant were romantically involved, drug-addicted narcotics officers, who arrested 100 defendants before themselves going to federal prison. Defendant published her story and sold the motion picture rights for a million dollars to make Rush. Plaintiff asserted his publicity rights for unauthorized commercial exploitation of his identity. Defendant had not used plaintiff’s name, image, or likeness; she based a character on him. The court found no actionable claim because defendant only fictionalized general incidents from plaintiff’s life and plaintiff’s identity carried no independent commercial value[4].

Public figures such as celebrities or politicians possess independent commercial value. Films that depict celebrities in their content are less likely to make a producer vulnerable to a publicity claim because motion picture biographies are a form of protected speech, though such depictions can implicate defamation claims or privacy rights. Moreover, courts have ruled that celebrities have no exclusive rights in their life stories[5].

Use of celebrity identity in titles is subject to the Rogers test. Ginger Rogers sued producer Alberto Grimaldi and MGM Studios for the Federico Fellini film, Ginger and Fred, about Italian cabaret performers, whose routine emulated plaintiff. The court found for defendant, ruling that use of celebrity identity in titles is protected speech only if such use describes its content or otherwise has some artistic relationship to the motion picture[6].

Intellectual Property Rights

Trademarks

Trademarks can be words, logos, or slogans. Infringement[7] results from unauthorized use, which creates customer confusion or falsely implies endorsement. Ginger Rogers additionally sued on the basis that use of her name in the title might lead others to believe that she had authored, sponsored, or endorsed Ginger and Fred. Finding for defendant, the court applied the Rogers test to evaluate the unauthorized use of a trademark in the title of an expressive work. Courts generally will not find infringement if such use carries some artistic relevance to the film or does not constitute a false endorsement by the owner[8].

A trademark owner is not always a professional entertainer. More often, trademark owners are private institutions, businesses, and organizations, which use trademarks to indicate the origin of goods or services sold. Over time, consistent use, or branding, generates enough goodwill that significantly raises value in a trademark. It is the damage of this goodwill that owners seek to prevent when they enforce their trademark rights against unauthorized uses.

Traditional enforcement actions against market competitors seek to prevent unauthorized uses on the basis of avoiding customer confusion over origin of goods or services. As film is not generally a market competitor of brands it depicts; proceedings against filmmakers require a different approach. As an expressive work, film has at its disposal certain defenses that market competitors do not. Defenses include First Amendment, incidental use, nominative use, and parody. What is generally indefensible is when the unauthorized use of a trademark depicts a company or brand that amount to a negative commercial.

Product Disparagement

Insinuations that a company makes defective products can result in a lawsuit. In Films of Distinction, Inc. v. Allegro Film Productions, Inc., owner of The Crime Channel® sued producers of Relative Fear on the basis that unauthorized use of its trademark led viewers to think that those, who watch its network, become murderers[9]. In another case, computer software manufacturer of a product called Clean Slate® brought suit against Warner Brothers for its depiction in The Dark Knight Rises. In reality, the product protects public access to computers, but the film depicted its use by criminals to erase any trace of criminal activity[10].

First Amendment

The First Amendment defense stems from Rogers. Unauthorized use is likely protected speech if the trademark bears some artistic relevance to the film or does not constitute false endorsement. A sportswear manufacturer sued producers of No Fear for use of No Fear®, but the court found that use was artistically relevant and did not explicitly mislead consumers as to its origin[11]. However, a court enjoined unauthorized use of Dairy Queen® to title a satire about Minnesota beauty pageants, which producers changed to Drop Dead Gorgeous[12].

Incidental Use

Producers may argue a trademark is not unreasonably displayed or highlighted. A pinball machine manufacturer sued Paramount Pictures for depiction of their machine in What Women Want. The defendant argued such use was incidental, that even a keen observer would find it difficult to discern the trademark. The court agreed that it was unlikely such depiction would lead consumers to believe that the manufacturer endorsed the film[13].

Nominative Use

Defendants may argue a trademark merely identifies a product or service. In Dickie Roberts: Former Child Star, actor David Spade uses a Slip-N-Slide® with disastrous results. The court agreed such depiction was nominative because it served to only identify a prop, did not imply sponsorship, or constitute an endorsement by the toy manufacturer[14].

Parody

Parody is a specific type of protected speech because it adds criticism or commentary. Owners of FUBU®, which means “For Us By You,” sued Universal Studios for BUFU (“By Us, F*** You”) in How High. Producers argued their use parodied the FUBU® persona, but plaintiff disagreed, stating, “[Our] valuable name and reputation [has been] injured by crudely profane ridicule and by its association with the repugnant stereotype that multicultural youths require illegal drugs to empower themselves.” The court ruled that such speech was protected because it centered on comment and criticism of the trademark and its owner[15].

In Muppet Treasure Island, Jim Henson Productions depicts SPAM®, a trademark for canned luncheon meat, as Spa’am, high priest of a tribe of wild boars, who worship Miss Piggy as its queen. Hormel Foods Corporation sued, alleging that sales would decline if their product was affiliated with “evil in porcine form… that even comic association with an unclean ‘grotesque’ boar [would] call into question the purity and high quality of its meat product.” The court ruled its use a parody and the film released with character Spa’am intact[16].

Product Placement

Product placement seeks to include trademarks in films as an advertising mechanism that substitutes for television with potentially lucrative results. One early example of lucrative product placement is in E.T.: The Extra-Terrestrial when a character offers a taste of Reese’s Pieces® candies to an alien. The invention of TiVo made it possible to fast-forward through ads, which resulted in films as attractive substitutes. Product placement agents actively seek opportunities for placement of products in flattering or neutral settings.

Copyrights

Copyrights are original works of authorship fixed in a tangible medium of expression. Works include literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. Copyright registration provides its owner with a set of exclusive rights, including the right to reproduce, to prepare derivative works, to distribute, to perform publicly, to display publicly, and in the case of sound recordings, to perform the work publicly by means of a digital audio transmission. If a producer uses these exclusive rights without consent, the film becomes vulnerable to an infringement action[17].

Infringement

Copyrights need not be enforced in every instance of infringement to maintain validity. If the use is widespread and involves considerable profit, copyright owners may assert their rights to secure a leveraged settlement. An artist asserted his copyright in a drawing of a wall-mounted chair, which Universal City Studios copied into a set design where it appeared in 12 Monkeys. The court granted a preliminary injunction to the artist, which forced the film studio to pull its $30 million dollar film from active distribution. The film studio settled on unfavorable terms with the artist so that they could return the film to active distribution[18].

De Minimis

Defendants raise the de minimis defense to exclude infringement for copyrighted works that is so small it fails to rise to an actionable claim. A court ruled de minimis use of copyrighted photographs in Se7en because they were displayed in poor lighting, out of focus, and so briefly as to be indiscernible[19]. The pinball machine manufacturer in What Women Want also brought copyright infringement claims and lost because graphic elements of the machine were indiscernible, out of focus, and only briefly part of the picture[20].

Fair Use

Courts balance enforcing exclusive rights against making copyrighted works available for news reporting, criticism, comment, teaching, scholarship, or research[21]. Copyright law provides guidelines for courts to evaluate fair use, which inquiry can lead to different results. Paramount Pictures made a poster for Naked Gun 33 1/3, in which Leslie Nielson poses as the naked and pregnant Demi Moore. The film studio successfully asserted fair use, claiming the poster was a parody of the copyrighted work by Annie Leibovitz[22]. One year later in the same state, Black Entertainment Television defended their use as fair and lost to the artist, whose poster was used in a set design for a sitcom in which it appeared for 26 seconds[23].

License and Release

Producers can avoid a claim for copyright infringement by either editing out or pixelating scenes where works of authorship are clearly visible. The conservative approach is to obtain consent in the form of a license and release. A license provides the producer with a grant of rights to access exclusive rights, including reproduction, and specifies scope of use, including duration (usually in perpetuity) and geographic territory (usually throughout the world where the film is distributed). The release confirms the copyright owner releases the producer from any and all claims that might be brought, including for potential violations of personal rights or intellectual property rights, which may result from the exploitation of the film.

Film Clips

Errors and omissions insurance carriers are more likely to exclude film clips from coverage because of their high risk. Risk is high because of difficulty in determining ownership in the copyright and whether ownership includes territories throughout the world where the film will be distributed. Documentary producers are more likely to use film clips. The Center for Social Media is a resource on fair use of film clips for documentary producers. Music in film clips must also be newly licensed. In both cases, re-use of film and music will likely require payments to the relative actors’ and musicians’ unions. Finally, any persons depicted in the film clips may require a release to avoid any potential violations of personal rights.

Title Selection

Titles

The law regards motion picture titles as it does names of other commodities; thus, laws of trademarks and unfair competition apply. These laws protect the owner, who builds goodwill behind a trademark, and consumers, who trust such trademarks denote a certain quality[24]. Producers should choose titles that will not create a likelihood of confusion as to origin, affiliation, sponsorship, or connection in the minds of consumers.

Title Registration Bureau

The Motion Picture Association of America (MPAA) allows its members and non-member signatories to register titles for completed or anticipated projects in their Title Registration Bureau. Registration provides a contract-based approach to enforcement of rights in the title for a period of years. Any dispute between parties may be brought in arbitration.

Merchandising

Producers recognize considerable profits in merchandising rights to films. Merchandise includes a myriad of products such as apparel, school supplies, novelties, and toys associated with the original intellectual property in the film. If a producer uses a word, logo, or slogan to title a film, but a third party owns a trademark in a same or similar title in a product area, such as toys, it may be worthwhile to choose another title, which creates more opportunities to license merchandising rights with third party manufacturers and retailers.

Title Clearance

Errors and omissions insurance carriers will require producers clear a title. Similar to script clearance, title clearance involves a clearance service and a trademark attorney. The former provides the title search and report, which examines federal, state, and common-law trademarks to identify same or similar titles and summarizes the results and potential hazards. The trademark attorney provides a written opinion on the legal implications of title choice to the carrier, who uses the written opinion to determine the level of acceptable risk.

This concludes The Script: clearance and title selection. Next week we will talk about The Players: consent provisions in employment agreements, which include the grant of rights; use of name, image, and likeness; and other approvals, merchandising, endorsements, doubles, dubbing, outtakes, and nudity.

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