Whose Permission Is It, Anyway?

It appears that everyone who has a camera can be or thinks he or she is a filmmaker.  The resources are such that make this realistically feasible for the financially deprived.  As digital distribution options grow plentifully on a global scale, getting your movie out and bringing money in becomes less of a pipe dream and more of a possible reality.  Micro-budgets and crowdfunding avenues make upfront costs shrink to a fraction of what it takes to make a Hollywood-level film, and the evolution of acceptable formats satisfy consumer pallets sometimes in 4 minutes or less (i.e. ‘webisodes’).  The rules have changed and the processes have simplified.  Truly, anyone who has even a cellphone camera can make the next Blair Witch Project or Clerks 4.0 – the reboot.  Still, as options increase so do legal complications.  New ‘Acts,’ policies and laws regularly crop up to ‘protect’ artists while conversely deterring them from producing.  What often deters artists from making a living with their craft is the multitude of legal hurdles to hike under and over.  I may be speaking blasphemy to the independent, rogue creative, but thank goodness for lawyers.  Without them, our ignorance may make the difference, as Ana-Klara H. Anderson of the law firm of Thomas & LoCicero PL says, between bank or bust for an artist’s labor of love.  Without legal protection front-loading, she says, “You invest a lot of time, money and creativity only to be stopped in your tracks.  All that hard work would be for nothing.  It could bankrupt the work.”

So what types of IP protection should a filmmaker consider before a film captures first light?  According to Dr. Anderson, the producer should own every piece of intellectual property associated with their project.  This includes the copyright to the creation itself as well as the right to use the idea, concept or work for post-production purposes (i.e. distribution and exhibition).  It is similar in the music business to the difference between an artist’s musical work and the sound recording of that work itself.  Permissions are required for both.  Other assets that need protection are sound, script, music and the right to use the title.  Yes: the title.  The film’s title becomes its trademark, captured in a catch phrase as its identifier.  Also, if a filmmaker desires to place specific products within the film for funding, permission needs to be secured before – not after the fact.  These points seem obvious, but they wouldn’t need articulation if filmmakers practiced them.  Obviously. 

Smokey Says...

One of Dr. Anderson’s points stood out poignantly in its obviousness: Filmmakers contract with actors to employ their ‘product.’  An actor’s performance secured in a tangible medium, i.e. film, is a copyrighted product.  As such, permissions required are dependent on variables, variables Dorothy Fadiman, a social change documentarian considers based on the situation.  In an interview with Tony Levelle of MicroFilmmaker Magazine, Dorothy says there are two releases she acquires for each shoot. “’The first is a “model release” or “signed permission form” from each [talent].”  She says the two are important for both the film itself and for publicity afterwards.  All permissions, Fadiman says, are designed not only to protect the artist but also the filmmaker.  Dr. Anderson concurred.  She stressed the importance of “memorializing things in writing.”  Word as bond holds no water in court and, from history, intellectual property disputes are diverse in their frequency.  This is why seeking legal council for permission review and advisement is an essential investment.  Tony Leville echoes this in his MicroFilmmaker article by saying, “the money and time you spent finding and talking to an entertainment lawyer could very well turn out to be the best money you spent on the entire production.”  I’m a fan, Tony.  I’m a fan.  Glossing over the legalities associated with filmmaking, out of complacency, is a dangerous tightrope to dance on. 

My interview with Dr. Anderson was both informative and reassuring.  Reassuring in the sense that all the textbook warnings and formal education I’ve received are true.  We, as artists, pour our heart and soul into our craft.  It takes tremendous self-investment to turn a vision into reality.  It may be true that all capable thought and effort is spent on its creation, but that is no excuse for disregarding legal formalities and laws.  The hassle is no hassle if viewed as a shield and protection for both you and the work itself.  In the immortal words of Smokey the Bear, “Only YOU Can Prevent Forest Fires!”  Boy I hope using that tagline passes the “fair use” test.  I might need to consult my lawyer on that one.

Ana-Klara H. Anderson, Ph.D, Esq.

In 2009, Ana-Klara earned her law degree from the University of Florida Levin College of Law and her Ph.D. in Media Law and Policy from UF's College of Journalism and Communications.  Ana-Klara has authored numerous articles for media law publications and has been a frequent guest lecturer throughout the southeast on First Amendment and media law issues.  In her commercial litigation practice, Ana-Klara litigates commercial disputes for corporate clients, including contract disputes, class action defense, business torts and related areas. She also prepares and reviews contracts and other documents related to business operations and management, with a particular emphasis on the arts, entertainment, and publishing industries.

Areas of Practice:

Media/First Amendment Law

Contests & Sweepstakes

Corporate Litigation

Arts & Entertainment Law

How NOT to Make Friends

Infamous Fish-Hook Move

I’m not going to pretend I fully support Internet regulation and governmental piracy controls.  But I’m also not 100% certain that streaming sites adequately protect the artists they broadcast.  For me, there are a lot of unclear and undefined demarcations.  On one hand I can’t police the entire web on my own, and I would appreciate someone uncovering misuse on my behalf.  At the same time, if you give a thief an inch, he’ll take you for a mile.  This applies to both ends of the argument: ignoring copyright infringement on the basis of 1^st Amendment rights, or allowing power to rest in uncertain hands of legislation.   Should the power to regulate and police be with the streamers?  I believe so.  But then we have cases like the YouTube vs. Viacom one of 2010.  This was one of those, “He Says, She Says” cases where both try to “fish-hook” the other side out of the way.  An embarrassing amount of evidence surfaced, proving gross levels of arrogance and the conflagrant abuse of power – on both sides.  Viacom said YouTube had the responsibility to prevent copyrighted material from appearing on their site, but turned a blind eye for fear of losing site traffic.  But Viacom stacked up as no saint, either.  A head executive was quoted directing viral videos be made to look like fan rip-offs - then uploaded to YouTube from a non-business affiliated location.  We want to trust big companies with big resources to keep the fighting clean.  We want to think that we don’t need Big Brother chiming in.  But here we are witnessing a failure of the private sector to keep things honest, or the outright creation of big-box pirating sites like “Megauploads.”  Positioned as a file-storage and sharing site, MU says their piracy-policing tools show they are trying to do things right.  But the U.S. government says their “safe harbor” resources are just a cover.  They claim instead that Megauploads is one of the largest piracy hubs on the net.  Similar to Viacom and YouTube, lead executives left soft-copy trails throughout their email exchanges suggesting awareness and support of illegal practices.  Even if the case fails to gain traction, it is still another example of media powers disregarding copyright laws.  But such pride doesn’t exist solely on a bigger corporate scale.  New schemes and pirating practices are maturing like mold on bread every day.  In March of this year, a twenty-something from Southern California admitted to illegally collecting copyrighted movies to share on the net.  IMAGiNE Group, the company he worked for, was purposed to circumvent pirates by streaming movies online as they hit the theater.  Ironically their employee Sean Lovelady, along with other co-conspirators, illegally captured audio from film premieres to enjoin with stolen video of the film available online.  In short, IMAGiNE employed pirates.  Their pirated content was uploaded to servers owned by IMAGiNE.  Employees of IMAGiNE shared the copyrighted information with each other.  Did IMAGiNE know?  The case doesn’t say.  Even if they weren’t, did they set in place preventative measures against system manipulation?  The question could be posed to YouTube, Viacom and Megauploads, all the same.  So who will be their fact checker?

Enter from left stage: SOPA, or the Stop Online Piracy Act, on the heels of PIPA, the Protect IP Act.  The DMCA, or Digital Millennium Copyright Act, already shuts down pirated content in singularity, but the SOPA and PIPA are designed to attack sites as a whole.  According to the Justice Department, it isn’t enough to simply delete offending content but the sites that host the stolen content.  Sounds reasonable enough – like shutting down crack houses for making and selling drugs.   Of course pirated media are not life-threatening substances, but a law is a law: creations are under copyright protection the moment they are created.  If someone breaks that law, they are accountable for the consequences.   Silicon Valley argues it will stifle innovation and deter start-ups from “starting up” for fear of costly legal fees in the event of ‘accidental’ copyright violation.  But do doctors picket against expensive liability insurance?  Do construction companies storm Washington for being required to have Worker’s Compensation?  No.  They don’t because accidents happen.  Without those types of insurance, they could lose their business.  In the long run, it protects them.  If you want to run a business then treat your company like one.  There are costs associated, and if budding Internet companies want to operate, then they will have to put in fail-safes to keep it running.  Copyright cases surface all the time, and injunctions are ordered at the expense of the offending party – whether unwitting or not.  If you don’t want to go to court, perform due diligence in keeping you site clean.

Spotify says NO to SOPA/PIPA

But let me step off my soapbox and examine the other side of the argument – the one I’ve previously stated: Crooks abuse power.  In theory, involvement by the Justice Department would help artists protect their source of income.  But do we have a clean record with regards to corruption and greed?  No.  Referring back to the “crack house” example, how many times do we hear of cops who have fallen from grace, taking spoils for themselves?  Respect for governing power has not had a good track record in our country.  I want to slap the hands of pirating enablers just as much as any other artist, but I also don’t want another Pandora box of regulations and policies opened – one that, based on historical facts, will likely be manipulated for gain.  So here I am – we are, stuck between a rock and a hard place.  The cases above prove piracy is no small peanuts.  But should we trust a government agency to take stewardship over it?  Which is the lesser of two evils: ‘trust’ companies to police their own hosted content, or give Big Brother a pass to suffocate free flow of information like Russia, China or Iran?  Tricky indeed.