Once the owner of the copyright has been identified, the next step is to obtain written permission from the copyright holder to use their work. This is often called a “license,” “release” or a “right’s agreement.” These may require the payment of money and they may not, this depends on a variety of variables. However, it is imperative that written permission be obtained even if you end up not paying any money or you are using a friend’s creative work.

The key elements of a written license are: 1) grant of rights; 2) representations and warranties; 3) price; 4) screen credit and 5) any other provisions, including the right to create other derivative works and option to use a screenplay.

It’s at this stage that my clients often ask, is a copyright license or assignment always necessary? In short, the answer is yes. Just mentioning the name of a movie or book is ok and also there are those works covered by public domain and the fair use doctrine. Even if you wrote the screenplay, you will need to license or assign it to the production company.

The difference between a license and an assignment is a simple one. With a license, the original owner of the copyright is retaining ownership and is (often) being paid a license fee for the works use. An assignment is the transfer of the original copyright holders interest to a new party. This may or may not require the payment of money.

I want to spend a moment and make special note regarding obtaining the rights to use music in your film. This can be difficult, complex and a somewhat lengthy process and should be addressed early in the production. If the producer “falls in love” with a piece of music, be wary that it may cost a lot of money to get the rights to use it in the film.

Also it is very important to understand that there are two copyrights at play with music, one for a musical work and the other for a sound recording, also known as a master use license and a film synchronization license. You must obtain a license or assignment for both.

A question I often get relating to copyright and films is: can those working on the film assert a copyright against the production company relating to their work (lighting, character, make-up, costumes, etc)? Left unchecked these can certainly present problems, this is who it is important for anyone working directly on the production should sign a “work made for hire” agreement. This means that they are agreeing that the production company owns the copyright in the work they create. Again, these are relatively complex issues and I recommend that you obtain the assistance of counsel.

As I have previously said, you have rights as soon as your vision is put into film; however, you get significant added benefits with copyright registration. For example, between $750 and $30,000 for infringement, and up to $150,000 if the infringement is willful. You also have access to provisions that allow for the award for attorney fees. Given the severe penalties for infringement, this often keeps costs down and makes the resolution relating to infringement claims relatively speedy.

Registration is low cost and should be done once your film is produced.

Additional registration should be performed with the Writers Guild of America (WGA). A copyright is not required for registration. This registration may provide evidence of when a screenplay was created if there is a dispute over authorship.

Finally, a word about trademarks in film. Trademarks are not copyrights. For a detailed discussion regarding the differences between trademarks vs copyrights, click here. Briefly, copyrights protect creative expression while trademarks identify the sources of goods and services.

Do you need to get permission to show a trademark in a film? The reader’s digest response is that is you are using or discussing the product in an every-day way, you do not need to get permission. If you are heavily featuring a product, then you may want to seek permission. If you intend to disparage a product or service, then I recommend that you seek the counsel of an attorney.

For more information or to register your trademark or copyright please contact us directly.