The Art of the Steal

George Rush April 12, 2011

Most of the best filmmakers I’ve known have been slightly paranoid in terms of the potential legal ramifications, and with good cause. Not only can legal issues result in litigation and attorney’s fee, they may also be the reason a distributor passes on your film.

In narrative filmmaking, you completely control the environment. What appears in any given frame is the director’s decision. In documentary filmmaking, filmmakers have less control of the environment and thus the law is a little more flexible in considering copyrighted images appearing in a given frame. Those images may be fall under fair use. For the purposes of this article, I am going to focus on narrative filmmaking where it is the director’s decision what is or isn’t in the frame. It doesn’t matter if the film you are making is a cinema verité-style narrative where you are using real world locations—you don’t get additional legal protection because of that particular aesthetic choice.

One area that often gets overlooked is when artwork is featured in the background. In big-budget Hollywood productions, most of the items in the background are pre-selected. However, in independent film the budget often dictates filming at real locations. The location may have posters, paintings, or other pieces of artwork inconspicuously hanging in the background. You don’t have the same control over the background when you are filming at a friend’s house or at a local bar that has let you shoot there for a couple of hours. A lot of people choose locations because of the cool artwork they have hanging, but that does not mean they have the rights to that artwork. Nonetheless, if artwork is featured in the background, you may still be violating copyright law.

The Copyright Act gives an author the exclusive rights to his or her work. This means that unless your use of the work is a fair use, a license is required. A lot of my clients want to rely on fair use, but this phrase often comes with a false sense of security. Fair use is an affirmative defense, which means that you only get to raise it once you are sued. Intellectual property attorneys often joke that fair use is your right to be sued and spend thousands of dollars on litigation. Not funny for a filmmaker working with a limited resources. 

If the matter were litigated, a court may find that the use is de minimus (too small to be considered an infringement) or merely incidental. But it’s not a sure thing. In Ringgold v. Black Entertainment Television, the court found that the use of a poster as set decoration, despite being visible in the background for a total of less than 27 seconds, was still considered an infringement.

And keep in mind, your awareness of the risk shouldn’t be limited to high profile images that have a copyrighted notice on them, it includes any work of art, no matter how seemingly trivial. So whether it’s an awesome poster of Cheryl Tiegs, or a crappy mosaic your untalented kid brother made, it needs to be cleared.

This uncertainty makes distributors of independent film wary. They are already making a risky investment. They do not want to compound the risk by getting entangled in a litigation battle. For this reason, a distributor wants to be absolutely sure that everything in your film has been cleared. There have been instances of film’s not getting distributed precisely because of this issue.

Of course funding an independent film is already an expensive and near impossible task. Seldom is there sufficient funding to license every single item that is in the background. However, there are some things that filmmakers can do to minimize their risk:

Do not intentionally include artwork in the background: It’s going to be a lot harder to argue that a use is de minimus or incidental if you clearly intended to include the artwork in the background. A judge will likely show little sympathy if you are being sued for a conscious artistic choice. You’re already stretching your money to make a film. Don’t waste your money on background art.

Ask to temporarily remove the artwork: The owner was kind enough to let you use their location. It might be a friend or family who is doing you a favor. Naturally you probably have some trepidation in asking them to remove something off their walls. Man up (or woman up) and ask! The worst they can say is no.

Make sure artwork is blurred or not prominent: If you show a close-up of the artwork, it’s more than likely not a fair use. To better protect yourself, make sure that the artwork is blurred or not prominent in the background. You may even have to do some creative editing in the post-production process.

Reserve money in the budget for licensing fees: When making a film you need to expect the unexpected. Not everything is going to go according to plan. It’s possible that you’ll film something and not realize the artwork in the background. Or you may decide that the background art adds something to the scene. Be prepared just in case you have to license something you didn’t initially plan on licensing.

Use work that can be used for free: This is the most economical solution. A lot of artists are happy to have their works featured in a film—free exposure! This requires a degree of planning, but will save you in the long run.

When making an independent film, you will encounter a variety of legal issues. At times it might feel like lawmakers are conspiring against you (and they might be), but you don’t want a small poster in the background to be the cause of litigation or prevent a distributor from purchasing your film.

Special Thanks to David Owens, Esq. who wrote this with me.

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