TRADEMARKS
Bringing the Coastal Clearance team on board from the beginning to guide you every step of the way is the best way to ensure you cover all your bases. An experienced clearance company will help you to prepare in advance for the necessary clearance steps for your project, allowing you to rest easy knowing that your project will not meet unintentional and easily avoidable holdups throughout pre-production, production, post-production, and distribution. By thinking through clearance issues from the beginning of a project you can save money, time, and unnecessary stress.
TITLE REPORTS FOR FILM & TELEVISION
Comprehensive Title Reports to Meet Your E&O Carrier and Distributors' Requirements
A title report is a comprehensive search for all prior uses of the same or similar titles used in films, television shows, or other multimedia projects. The report documents any registered and unregistered prior use of your title so you know whether you need to change the title. Title reports are a vital part of the clearance process because they are a required deliverable for E&O insurance and distribution—and because they help you avoid trademark infringement.
RELATED INFORMATION
Consumer products may be subject to strong third-party ownership rights. The names of goods are often trademarked, and their packages often feature copyrighted images. Scenes showing children playing games or characters eating prepackaged food will typically incorporate both copyrighted works and trademarks.
The best strategy is to seek express written permission to depict the product. The second-best strategy is to show the product itself but not its packaging. Once a soda has been poured into a glass, Coca-Cola no longer has any trademark or copyright ownership of the caramel-colored beverage. The actual product will be given far less legal protection and lend itself to much stronger claims of a fair use privilege than the depiction of the packaging.
Tobacco companies do not provide product placement permission, so film companies are strongly encouraged never to show the brands or use brand names in dialogue. Depending on the jurisdiction, the tobacco companies may be barred by legislation or court orders from providing their products to filmmakers in this fashion, and may even be required to defend against such use. Filmmakers should avoid brand references to tobacco products to the greatest extent possible, and use such content only after weighing the risks against the importance of the scene.
Despite these cautionary recommendations, filmmakers may rely on fair use to depict trademarked products or to use the name of such products and services in dialogue. A trademark owner cannot automatically stop a film company from showing its brand name in a scene. If the trademark is said or depicted accurately, the use in the film will not give rise to a successful legal action. Using trademarks without authorization will raise concerns for the insurance company, however, and could make eventual distribution more difficult.
Script Clearances, Title Reports, Research Services
E&O INSURANCE
Errors and Omissions (E&O) Insurance offers specialized coverage for a variety of media risks and is a prerequisite for establishing a distribution network for your project. E&O Coverage indemnifies producers from lawsuits that may arise including but not limited to:
◦ infringement of copyright
◦ infringement of trademark, title or slogan
◦ libel or slander
◦ invasion of privacy
◦ plagiarism or unjust competition due to alleged use of titles or ideas
◦ defamation or degrading of products (trade libel)
◦ Breach of contract resulting from the alleged submission, acquisition or use of program, musical or literary material used by the Insured in the insured productions.
COPYRIGHTS
What Is A Copyright?
Copyright is the right to reproduce a literary, dramatic, artistic or musical work. People who create these things have the exclusive right to exploit it, or not to exploit it. Copyright Law gives the creator or registrant alone the right to copy and profit, financially or otherwise, from the creation.
Copyright only exists in works that have been created in some tangible form. Examples include:
literary works: books, pamphlets, poems and other works consisting of text and computer programs;
dramatic works: films, videos, plays, screenplays and scripts;
musical works: compositions that consist of both words and music or music only (note that lyrics without music fall into the literary works category);artistic works: paintings, drawings, maps, photographs, sculptures and architectural works.
However, it is also important to note that you may have a brilliant idea for a mystery plot but until the script is actually written, or the motion picture produced, there is no copyright protection. Another way of understanding this is that Copyright is restricted to the expression in a fixed manner of an idea – it does not extend to the idea itself.
Usually the author of the creation is the copyright owner, unless they are creating it as a “work made in the course of employment” in Canada, a “work for hire” in the United States or transfer the rights to someone else.
These creations can be a movie, television show, song, performance, sculpture, architectural design, painting, piece of choreography, photograph, book, speech, computer program, translation, game, instruction manual, play, set for play, toys, home video, or anything else that someone might have creatively originated.
Generally, Canadian copyright law protects a work for 50 years after the author’s death, while in the United States it’s 70 years after the author’s death. After such a time the piece falls into the public domain.
In the United States, some producers try to rely on “Fair Use” doctrines such as parody. However there is no doctrine of “Fair Use” available in Canada and Canadian producers who do not obtain clearances can only rely on the more limited doctrine of “Fair Dealing”, which provides that any “fair dealing” with a work for purposes of private study or research, or for criticism, review or news reporting is not infringement. However, in the case of criticism, review, or news reporting, the user is required to give the source and the author’s, performer’s, sound recording maker’s or broadcaster’s name, if known. There are also some limited educational exceptions in Canada, but these are unlikely to assist for-profit filmmakers.
Some filmmakers believe that use of public domain works is another way to cut the costs of footage. While it is generally true that permission is not needed to reproduce a public domain work, most users forget that various elements within that public domain work (often being the music) may still be legally protected. For example, a film may be in the public domain, but there are actors, directors, writers, stunt people, choreographers, and trademarks within the film that are not in the public domain and require clearing.