Copyright

Motion pictures have been protected under American copyright law since 1912.  Before then, movies were registered for copyright as a series of photographs by making contact sheets from the film and registering those in the Copyright Office.  Illustrations of the first film registered in this manner, Fred Ott's Sneeze, are here. Kemp Niver's book The First Twenty Years contains illustrations of early film copyright registrations from the Copyright Office's records.

Filmmakers have a series of exclusive rights to their work, including the right to make copies and the right to control public performances of the work.  More on these rights is on the home page of this guide.  Since 1978, it has not been necessary to register a copyright in order to obtain protection.  However, a lawsuit alleging copyright infringement cannot be filed unless the work has been registered.  See the Copyright Registration page on this guide for more on copyright basics.

Many films are derivative works, meaning that they are based on another work.  Commonly adapted are novels of every sort, e.g., Gone With the Wind, Dune, The Help, The Notebook. Many biographies and histories have been adapted, e.g., Julie & Julia, Lincoln, Tora! Tora! Tora!.  But movies have been based on poems (Gunga Din), children's books (The Cat in the Hat), short stories (It's a Wonderful Life), novellas (The Shawshank Redemption), produced plays (Cat on a Hot Tin Roof), unproduced plays (Casablanca), musicals (Rent), operas (The Magic Flute), comic books (X-Men), magazine articles (The Killing Fields), songs (Harper Valley P.T.A.), older movies (An Affair to Remember),  television shows (The Beverly Hillbillies), radio shows (The Green Hornet), commercials (Ernest Goes to Camp), cartoons (The Flintstones), board games (Clue), video games (Resident Evil), role-playing games (Dungeons & Dragons), and amusement park rides (Pirates of the Caribbean).  All of these are derivative works.

If the source material is still in copyright, then a license from the owner will usually be needed.  Works in the public domain such as Shakespeare's plays or the novels of Mark Twain, do not require licenses.  An idea is not copyrightable, only the particular way that idea is executed.  So the movie plot of boy meets girl, boy loses girl, boy gets girls back, to name one such cliche, can be endlessly redone without permission from anyone.  Stock characters such as a hen-pecked husband or an absent-minded professor do not belong to anyone and can be freely used.  In Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), the author of the hit play Abie's Irish Rose, about a Jewish boy marrying a Catholic girl, sued Universal Pictures for making a film, The Cohens and Kellys about feuding Jewish and Catholic families who were neighbors.  The federal court found that both works utilized stock characters and the playwright could not own those stock charactery any more than he could own an idea. 

Stories based on the lives of real people do not involve copyright issues as facts and ideas are not copyrightable, but there are issues involving privacy rights, publicity rights, and disparagement to consider.

The author of a screenplay, whether or not he based it on another work, owns the copyright in that screenplay and he must grant rights to the filmmaker to use the screenplay.  This may be done via a license or by agreeing with the producer who commissioned it that the screenplay is a work-for-hire.  The Independent Film Producer's Survival Guide and Clearance and Copyright have sample contracts for obtaining rights to a screenplay.  The Screenwriter's Legal Guide and The Writer Got Screwed are the other side of the equation, offering information for writers in negotiating with producers.

Some footage is in the public domain.  Older films that were not copyrighted or pre-1964 films whose copyright was not renewed are in the public domain.  Films shot by United States government agencies and employees are in the public domain. One example is NASA's Apollo 11 footage from the Moon. These types of films may be freely used.

Using clips of other motion pictures or television broadcasts in a film may require a license.  In The Shawshank Redemption the prison inmates are watching Rita Hayworth and Glenn Ford in Gilda.  The producers of The Shawshank Redemption obtained permission for the use of this clip.  The use of an extended clip of one of the most famous scenes of a well-known film used as a plot point in a commercial, dramatic (as opposed to documentary) film, would probably fail the fair use test.  In addition, the show business unions (e.g., Directors Guild of America, SAG-AFTRA) require permission be obtained from the directors and actors in clips and payments made to them or their estates.  Stock footage houses can supply footage for use in films that need background footage (e.g. footage to show on a television the characters are watching) or establishing shots (e.g. traffic in Chicago) inexpensively and free of copyright and clearance issues.  If there is music in the clip and there is not a fair use basis for the use of the clip, then permissions for the use of the music will need to be obtained.

But fair use does apply to dramatic films.  All the President's Men is about Woodward and Bernstein's investigation of the Watergate scandal.  It uses archival footage of President Nixon and clips of Walter Cronkite and others reporting the news as part of establishing the story in reality.  The fair use doctrine would generally protect uses like this.  For example, the producers of the stage musical Jersey Boys were sued by the owner of The Ed Sullivan Show.  The musical used a seven-second video clip from the television show of Ed Sullivan introducing The Four Seasons, the musical group whose story is told in Jersey Boys.  This was found by the court to be a fair use of the clip in Sofa Entertainment, Inc. v. Dodger Productions, 709 F. 3d 1273 (9th Cir. 2013).  This logically would have applied to the film version of Jersey Boys, but the filmmakers chose to hire an actor to play Sullivan.

The use of clips in documentaries has been much debated.  Documentary filmmakers have found that some distributors and insurers required permissions for every clip used, even if there is a fair use rationale.  Lawrence Lessig in his book Free Culture gives an example of this.  Jon Else made a documentary about a production of Wagner's Ring Cycle at the San Francisco Opera.  One shot backstage had stagehands on a break with a television playing behind them.  The Simpsons was on the television.  Even though there was a fair use basis for the clip, Fox wanted $10,000 to license four seconds of The Simpsons.  Rather than risk being sued by Fox, Else replaced the footage.  Pat Aufderheide and Peter Jaszi's 2004 report Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers described the problems faced by filmmakers in obtaining rights to clips.

Because of issues like these, the Documentary Filmmakers' Statement of Best Practices in Fair Use was developed by Aufderheide and Jaszi.  Issued in 2005, it has four principle areas where using another work is a fair use:  employing copyrighted material as the object of social, political, or cultural critique; quoting copyrighted works of popular culture to illustrate an argument or point; capturing copyrighted media content in the process of filming something else; and using copyrighted material in a historical sequence.  The statement has been endorsed by many filmmakers' organizations and is widely respected.  The introduction of this statement has helped documentary filmmakers to produce films without extensive and cost-prohibitive licenses while also satisfying insurers.  For example, the 2006 documentary This Film Has Not Yet Been Rated is critical of the Motion Picture Association of America's system for rating films.  It used several hundred film clips to illustrate its points, all of them used under the fair use doctrine without permissions or payments. 

Even if permission to use a clip is refused by its owner or the owner seeks a fee that the filmmaker cannot pay, the filmmaker still may rely on the fair use doctrine.  Michael Donaldson and Lisa Calliff in their book Clearance and Copyright describe a documentary Donaldson worked on.  The rights holders wanted $450,000 for clips.  Donaldson determined all could be used under the fair use basis and told the rights holders they could have $1,000 for each film used in the documentary; if they declined they would get nothing and the documentary would proceed to use the clips anyway under the fair use doctrine.  The filmmaker spent $47,000 on rights, 14 of 18 rights holders agreeing to the deal.  (The New York Times story on Donaldson's work on that documentary is here.)  Even when clips are used under the fair use doctrine, credit as to the source of the clip should be given for two reasons.  The first is that one's sources should be cited.  The second is that under some foreign nations' laws, giving credit is part of their laws on fair use and moral rights.

Donaldson and Calliff's Clearance and Copyright is the indispensible book in this area.

Using music in films is similar to using clips as outlined in the box above.  Even where there may be a fair use rationale to justify music in a film, many insurers and distributors will not allow a filmmaker to use copyrighted music without obtaining licenses.

A character who quotes just a few words of a song is probably protected by the fair use doctrine or alternatively it is a de minimus use of a work.  For example, a federal court found that when a character in the film Midnight in Paris quoted a line from a William Faulkner novel the character's quotation did not infringe the copyright in the novel.  Faulkner Literary Rights, L.L.C. v. Sony Pictures Classics, Inc., 953 F.Supp.2d 701 (D. Miss. 2013).

But use of a song to score the film or used prominently in the picture (e.g. being played by a band, sung by characters, danced to) will require a license.  This is commonly called a "synchronization license," because the copyrighted work is to be used in sychronization with the action of the film.

There are two copyrights that will be at issue.  One is the copyright to the musical composition, the other is the copyright to the particular recording of a song.  These are usually owned by different entities.  While public performance licenses are handled by the performing rights organizations (ASCAP, BMI, SESAC), a sync license is issued directly by the music publisher.  (More on music publishers is on the Music Copyright and Licensing page of this guide.)  The license for the recording must be obtained from the record company that holds the rights to the song.  When the owner of a particular recording will not grant permission or asks for a high fee, filmmakers may choose to license another recording of the song or, after getting permission from the owner of the composition, commission their own recording.

Even though there may be copyrights on things depicted in your movie, almost certainly there will be no copyright issues by filming them. 

For example, while buildings designed since 1990 may be copyrighted, section 120 of the Copyright Act says depicting that building in videos or artwork is not a violation of the building copyright.

Similarly, objects such as furniture and interior decor which may have had their designs copyrighted can be safely used on screen.  For example, Columbia Pictures made a film, Immediate Family, that used a mobile hanging in home of the main characters.  The designer of the mobile sued and lost, the court finding in Amsinck v. Columbia Pictures Industries, 862 F. Supp. 1044 (S.D.N.Y. 1994), that depicting the mobile on screen did not copy the work within the meaning of the Copyright Act. And even if had been a copy under the law, the fair use doctrine protected the filmmaker from an infringement claim.

A person in a film wearing a shirt with a copyrighted design or trademarked logo is generally going to be a fair use.  Likewise, showing characters holding books or having artwork hanging in their homes are fair uses of the copyrighted works.  In Sandoval v. New Line Cinema Corp., 973 F.Supp. 409 (S.D.N.Y. 1997), a photographer filed suit because his copyrighted pictures were in the background of scenes in the film Seven.  The court dismissed the photographer's suit saying the filmmaker had made a fair use of them. 

Michael Donaldson and Lisa Callif in their Clearance and Copyright give an example of a film they worked on, Thanks for Sharing, where a character walks down a real New York City street that the producers had not dressed or altered.  As part of the filming a number of copyrighted advertisements and photographs were captured.  The film was able to obtain insurance and be released without any issues because there was a fair use justification for the inclusion of those materials.

Despite this, some distributors and some insurers will insist that every copyrighted work be cleared before they release or insure a film.  This is why Hollywood films will often have long lists of acknowledgements in their end titles regarding permissions buildings, magazines, books, posters, and art shown in the film.

The Center for Media and Social Impact's Documentary Filmmakers' Statement of Best Practices in Fair Use, discussed above in the Clips section, gives guidance not just to use of film clips but any other copyrighted work.  The Center's FAQs are a good place to start.