It’s everyone’s favorite line on the daily prep schedule: “Clearances Call”. An opportunity to gather around the speakerphone in the Art Department office and make silent group gestures of disbelief and frustration as the Clearances Coordinator tells you all the things you can’t use in the film.
But what madness has driven us to the point of launching conference calls and endless email chains about whether the artwork on a tissue box disqualifies it from being shown onscreen?
For roughly the last 30 years, studios and independent producers have grown increasingly stringent about not filming copyrighted and, to a lesser degree, trademarked material without the consent of the intellectual property owner. The mandate of ensuring nothing “uncleared” finds its way onscreen has spawned a professional ecosystem composed of Script Research Companies, Clearance Coordinators, and Clearance Lawyers. In the independent film world, a Script Research Company will usually issue a report identifying all items in the screenplay that represent possible legal conflicts if used as is. This includes character names, business names, artwork, and props. From there, a Clearances Coordinator will go over the report with the relevant departments and handle the administration of day to day issues that pop up. At the top of this pyramid is a Clearances Lawyer, who has the final word advising producers on more complex judgment calls involving risk management.
Often, and especially on smaller projects, production will try to rely heavily on the Art Department and the Production Designer to deal with clearances. One of the many problems with this approach is that clearances can be a nebulous world without hard and fast rules. Many decisions come down to the Clearance Lawyer’s judgment about what will be problematic. What are the chances Budweiser is going to sue the movie, potentially preventing distribution, if a character drinks a real Bud instead of an ND beer? How likely is it that the artist of the brilliant, unsigned flea market painting the decorator found will surface and file a claim that requires the movie to use post money to hire additional attorneys? To account for this complexity, production should always provide someone outside of the Art Department to track clearance issues. If the budget absolutely won’t allow for a Clearances Coordinator then a PA should be brought on specifically for the task.
As an attempt to gain some inside info on the subject for the next time I have to begrudgingly fight a clearances battle, I went straight to the top of the food chain and sat down with Clearances Lawyer extraordinaire Sam Bayard to talk over the finer points of copyright, trademark, and scamming the system.
How do you describe your job to the uninitiated?
I think of it as trying to make sure that the production of scripted stories doesn’t infringe on anyone’s intellectual property rights. Mainly copyright and, to a lesser degree, trademark rights.
What is the difference between copyright and trademark? Is one more difficult to deal with than the other?
Copyright is protection against the (unauthorized) use of someone else’s artistic expression, more or less. It applies to anything you can think of that has any original expression in it. It’s photos, artwork, footage, movies, books etc.
One thing about copyright that’s important is that it’s bounded in time. It only applies for certain lengths of time. Right now it’s the life of the author plus 70 years in the United States. It’s a long period, but it ends at some point…and things become in the public domain. So old photos and old songs etc are no longer covered by copyright, they become free to use.
Copyright protection is strong and strict while it applies, and then when it’s over it’s over.
And for our purposes, the rules are much stricter about using someone’s artistic expression (as copyright) than trademark.
You actually just touched on it there briefly, how would you define the public domain?
The Public Domain is… when, for one reason or another, there’s no copyright protection for a work. It’s usually because the work is very old and the term of copyright has expired. In the United States, it’s usually pre 1923, so anything that was first published before 1923 is in the public domain in the US. Most other countries measure it as a number of years after the author’s death. Most commonly 70 years. But as a general rule of thumb, to make sure it’s public domain across the whole world, hopefully we’ll find it’s 100 years after the author’s death.
Sometimes Public Domain is based on who creates it, and the big example in the US is US government works. Federal government works, works created by a federal agency, an employee of the federal government, there are no copyright protections for that. Like NASA photos of space is a very common one. Footage of Donald Trump giving a press conference that’s on whitehouse.gov.
Awesome. And back to Trademark?
Trademark is totally different (than copyright). It’s the protection of a mark. A sign, a symbol, a word, an indicator that identifies the source of a good or service. So Coca Cola, Tide, Apple. And it’s not a complete prohibition on using that word or symbol, it’s a prohibition on interfering with the source identifying function of that mark.
And so the law there protects against confusion about that mark. You infringe someone’s trademark if you confuse someone’s customers into thinking your product is associated with that mark, when it’s not. And the thing about trademark is it lasts forever, it’s not like copyright, it’s not bounded. If you continue to use your mark in commerce, then you can protect that mark for all time.
In general, there’s more legal protection for film/tv productions using trademarks, then there are for film/tv productions using copyrights.
Copyright only applies to recreating someone’s expressive work where as trademark has more to do with the product or the item itself. For example, Coca Cola has a very powerful trademark, if the law prohibited you from showing a Coca Cola or saying the word Coca Cola, you start to have serious problems from a 1stamendment perspective, from a society perspective. You would have a problem if you can’t show a Coca Cola or can’t write a story that a Coca Cola is involved in.
So basically, it’s easier to have a real product or brand on set because that deals with trademark where as having any kind of artwork is a problem because that deals with copyright?
Let’s say you use a real product in a film without permission and a company, like Coke, brings a suit against the production for trademark infringement. What standards does the court use to decide the case.
There’s a specific test the courts apply called The Rogers Test that says the 1st Amendment protects your use of a trademark in an expressive work, like a film, if:
1) It’s artistically relevant to the expressive work.
2) It isn’t explicitly misleading.
So that’s a very easy test for us to pass. We’re usually using it for some barely minimal artistic relevance, it’s a very low bar, it doesn’t have to be highly relevant, it just has to be minimally relevant to the story or to the set or to the atmosphere. And the reasons can be anything. It can be we want to create a realistic looking set, that can be artistically relevant. And then explicitly misleading, that’s also very easy not to run afoul of. The mere use of the trademark itself isn’t explicitly misleading, unless you have a production making some dumb outright claim that Coke sponsors what’s happening in the film.
As a TV or film production, you can defend against claims that your use or mention of real products and brands is trademark infringement or trademark dilution based on these 1stamendment principles, so I tend to be much more lenient about those uses.
It sounds like there’s a pretty wide latitude with real brands/products, but I’ve definitely had issues with clearance lawyers telling me we can’t use Budweiser and other brands in the past. Are there limitations to this First Amendment argument?
There are some limitations. You often will find clearance lawyers who will tell you, don’t put a real product in an unsavory setting. Don’t have the guy drunk driving with a real beer in his hand. Don’t have the murderer wear a Yankees hat. Don’t use a Louisville Slugger branded bat to kill somebody.
There are a couple reasons why that comes into play. One, it’s just a practical assessment. It’s not really the law but, as a lawyer, you’re not just looking for when the law is broken or when you can defend, you’re advising your client “Don’t mess with that, don’t do that, that’s going to make them object and then you’re going to have to spend money to defend it,” so unless there’s some kind of incredibly important creative reason and it can’t be done differently, we will generally advise against those kinds of uses. Just because it’s more likely that Coke or the Yankees will object and then you have to defend and you have to spend money and all that.
Alright, so it’s more about not spending the time and money to defend a claim rather than outright breaking the law in that case.
Right. The other wrinkle is sometimes trademarks have copyrighted elements. Because trademarks have artwork (graphics etc) and artwork is protected by copyright. Theoretically, you could get a company that sues you for trademark infringement and copyright infringement because the logo has graphic design. We don’t really know what the answer is there. We will either take the risk or steer people away. A good example is the NFL and MLB. I will often, because of how litigious those companies are, I will try to steer productions away from the more graphic heavy logos of those companies and steer them more toward the ones that are more text based. Text and colors are ok, avoid something more graphic. So far, the leagues have never sued anyone for copyright infringement over the use of a logo. But if they did, it would be down to a fair use analysis and I’m not sure that the productions would win.
It does seem like certain companies like Netflix, HBO etc are more comfortable with assuming the risk for trademark infringement and it shows in all the real brands they use as set decoration.
If it’s more normal use, background use, and using the product as intended, most lawyers will let you do it. Every once in a while, you will find lawyers who are very conservative and want to blur everything, you have to clear everything etc, but I don’t think that’s the right view of the law. As you mentioned, if you watch a lot of high production value films and elite television programming on HBO and Showtime and Netflix, you’ll see that it’s chock full of real products. I can’t say for sure that isn’t all placement, but I would guess at least half of it is not cleared, at least. And a lot of productions (now) you just wouldn’t clear any of those products.
Are there certain legal cases or precedents that talk specifically about set decoration in film/tv?
On the copyright side, somewhat fortunately and somewhat unfortunately, there are very clear cases that have come out in the last 15 years that talk about set decoration.
The most famous one is called Ringgold vs. BET. It was during the mid 90’s and BET was doing a television show with a scene in a church where they had a very fancy decorative quilt on the wall. It wasn’t just an ordinary quilt, it depicted scenes of people. This was more like a painting or more like a photo. It was very clearly advanced quilt work representing realistic scenes and it was prominently shown on the wall and it was shown for many seconds. Faith Ringgold is the artist that made the quilt, she sued because it wasn’t cleared. BET defended, and said “It’s fair use. We were setting the themes. We were trying to show scenes of life in this church so this was thematically relevant and it helped us establish the set.” And the court said absolutely not, that’s not fair use, you’re intentionally inserting this art into your set and you’re using it for the reason it was created. It’s decorative and you’re using it as decoration, it doesn’t matter that it helps your themes.