Copyrighting Your Movie

Original Photo by Jeremy Bishop on Unsplash

Dear Rich: I need to copyright my new film. On-screen, I put “copyright 2021" along with a fictitious name. The name is not a recognized legal entity; it's a name for my business. I wonder if I can file copyright officially under my real name but somehow acknowledge the fictitious name without all the shenanigans of making the name a legal entity. Or can I use the fictitious name even though it’s not an official company? 

If you plan on using a fictitious name (also referred to as a DBA), you should check with your county clerk as to how to register a fictitious business name (or you can use one of the many DBA registration services online). The purpose of registering is so that the public can determine who owns a business. Most states only require sole proprietorships or partnerships to register if the fictitious business name does not include the names of the owners. If you're a sole proprietor (single business owner) and you are using a fictitious business name, you shouldn't have a problem registering the copyright. (This circular explains the basics for registering film.) When you file, list your real name as the copyright claimant (the owner of the copyright). 

What if a copyright examiner sees that the owner listed on the notice differs from the owner named in the application? Explain that you used a DBA (and furnish proof of registration, if necessary).

FYI - If you are using a pseudonym, review your options before filing. 

PS You have copyright without filing registering; it's automatic.

Can We Use Apes Clip in Surf Video?

Dear Rich: We are filming a travel series with a professional surfer highlighting important cultural and historic locations. One location is the beach where the ending for Planet of the Apes was filmed (the scene with the Statue of Liberty). We filmed the surfer re-enacting Charlton Heston beating the sand as was done in the original film. We'd like to use 20-30 seconds from Planet of the Apes. Can we claim fair use? 

We think you have a good basis for claiming fair use because you're commenting on the film. Your purpose is transformative -- that is, you're using the clip to highlight the location, not as part of a narrative about anthropomorphic primates. 

Reality check. Unfortunately, it's not enough to say, "This is a fair use, leave us alone." You can only prove fair use in a courtroom after you've been sued. That means that if 20th Century Fox sees your video and wants to hassle you, they can force you to prove fair use in court (an expensive proposition). If you want to use the clip and take your chances, that's understandable. Plenty of clips fall under the radar and Fox lawyers may not wish to devote energy to your claim and instead pursue others with deeper pockets. If you proceed, here are some tips for use of online video: keep the clip as short as possible and if you can, shrink the frame -- for example picture in picture or split-screen. A favorable fair use ruling is more likely the less you take.

A Movie Falls Into the Public Domain ....

Dear Rich: If a movie falls into the public domain, are all of the individual images in it also public domain? What if the image is of a movie star?

Yes, you are free to copy the individual frames or images from a public domain movie without permission. Film elements such as music or promotional photos are also usually public domain as well although, on rare occasions, they may be under separate copyright.

What about movie stars? You are free to copy a movie star's image from a public domain movie without permission (and use it for informational purposes). You need to be careful in one particular instance -- when you are using the movie star for a commercial purpose (that is to endorse a product). That's because all living celebrities and some deceased ones have a right of publicity that permits them exclusive rights for endorsement purposes. 

Wants to Post Movie on Facebook

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Dear Rich: My friend wants to upload a Hollywood movie in four parts so that his family can watch it on Facebook, one-fourth of the movie at a time. I told him that will be seriously illegal based on my limited (lay person) understanding of copyright laws. I cannot find the exact answer to the question. Considering that you and your friend have probably spent a disproportionate amount of time in front of warnings like the one shown here, these PSAs must be classified as epic fail. Yes, copying movies without authorization is an infringement. The punishment for Facebook users fits the crime -- if you're caught, you'll be blocked from uploading videos (usually for about six months). Facebook's user agreement also permits the company to terminate your account (horrors!!) and movie studios can also pursue you if they wish (unlikely). So, if Facebook membership is crucial for your existence, it's best not to risk your online presence for the sake of an illegal download.

Wants to Use Bruno for Hair Salon

Dear Rich: I have set up an upmarket ladies hair salon called Bruno's Kuafor, and used Sacha Baron Cohen's satirical character Bruno as the inspiration. We actually use one striking image of the character all over our marketing literature. The logo is our own. The whole theme works brilliantly, and I did have it in mind to contact him to help the promotion, or even give him some financial share or incentive. But we are in Istanbul, so we are a long way away, and we didn't get round to it. And now a friend wants to open a branch in New York. What can I get away with, what should I do, is this a good time to contact Mr. Cohen or his agent to license the image of his dead character, or indeed try and get Mr Cohen involved more directly? We love the image, it is one that was used widely to promote the film Bruno, we just lifted it off the internet. We're not sure about Turkish law, but under U.S. law, you will need permission from the company that owns the rights to the Bruno character, as well as from Sacha Baron Cohen, whose image is used to promote your salon. That's because the use of the character and the actor's image triggers violations of copyright law (using images from the film), trademark law (the character may have acquired trademark status), and the right of publicity (the right of a person to control the use of his or her image for commercial purposes). Obviously, the more successful you become, the more likely you will need permission ... which is a bit of a Catch 22 because by seeking permission, you're alerting the company as to your use. If you do decide to seek permission, we believe the place to start would be Four By Two Films, the production company owned by Cohen and responsible for his movies and TV shows.

Singin' in the What?

Dear Rich: I am trying to write a play for a school based on the movie, Singin' in the Rain. I have changed the title to We Sing in the Rain, changed the story quite a bit to cut romance out (the school is very religious), changed the ending, edited lyrics to songs to make them more appropriate for this school, and cut the romantic songs out. Where do I stand legally? What else can I do to be able to copyright this script for myself? I feel like this falls under parody and fair use in every way except the changes are not for commentary or humor, but to make them more appropriate. Wow, who knew Singin' in the Rain was so offensive, so full of "excessive immodesty? Plus we're wondering, without the romance, what's really left? Ennyway ... Perhaps your efforts will go unnoticed by the copyright owners but cutting stuff out to meet religious standards is infringement (as the CleanFlicks company learned a few years back). You can always challenge that ruling in your area but we think you'll have to give up on a fair use defense; you admit you're not commenting upon or parodying the original work, just removing things you find offensive.

Stand and Deliver Video Rights

Dear Rich: I am a lawyer who presents onsite training. In my marketing video for the trainings, I have included short clips from "Stand and Deliver" and "Freedom Writers" to illustrate how some of the issues play out in educational settings. I am assuming I should get permission to use the video clips but I am unclear of the the process to do so. Yes, you should seek permission if you're using the clips for marketing purposes. It's always possible your uses could qualify as a fair use (more on that in a sec) but because of your position as an attorney-trainer, we think it's best to keep risks to a minimum. We believe that the 1988 film, Stand and Deliver is owned by Warner Brothers. Here's a Warner Brothers request form with instructions for seeking use of a clip or still. (It looks a little bit worky but hopefully somebody at WB can help you through the process.) Freedom Writers looks like it's owned by Paramount. That company directs folks like you to click on their Paramount Film Clip Licensing link which unfortunately leads nowhere (or at least it did when we tried it). We also tried to find a link for MTV Films, the co-production company but all our links for that lead, alas, back to Paramount. Perhaps you'll have better luck at the Freedom Writers website but we think you get the idea. You need to find some way to contact the owners. Once you do, plead for permission, and hope your request doesn't get buried on some paralegal's desk.
The Fair Use Argument. If you can't obtain permission, you may -- depending on the length and context of the clips -- be able to justify your borrowing as a fair use. The marketing aspect of your effort works against that argument but take a look at some of the audiovisual cases (scroll down to the Artwork and Audiovisual cases) to get an idea. As always, remember that fair use is a defense, meaning that a complaining copyright owner can drag you into court to defend yourself.

Wants to Quote Movie Dialogue in Novel

Dear Rich: I don't see anything in your Getting Permission book on getting permission to quote dialog from films. I assume that the process is similar to getting permission to quote song lyrics, but it would be better if you covered this in detail. I want to quote with attribution some movie dialog in a novel I am writing. Any suggestions? Speaking of film dialogue, we were surprised recently when reading the French classic Pere Goriot to find a line about someone "making him an offer that he cannot refuse." Did Balzac travel to the 20th Century, watch the Godfather, return to the past and copy the movie dialogue for his novel? We guess we'll never know.
Right, you had a question. The rules for using film dialogue in a novel are the same as for all text uses (explained in Chapter 2 of the book). As you're probably aware, there is no fixed amount of words that you can use without permission, although some uses are so minimal as to be considered de minimis (scroll down). The difference with using film dialogue is that it's often difficult to figure who owns the rights and even harder to get permission for the use.
Why is it difficult to get permission for movie dialogue? Generally the studio (or a producer) owns all rights to the movie including the dialogue. But in some cases, screenwriters may retain rights. In other cases, if the movie were based upon a book, the author may retain certain rights. That's the challenge when using one layer from a multi-layered work -- determining who has the right to grant permission. Even if a studio does own the rights to the dialogue, you still have the practical problem of finding the person authorized to grant permission (and convincing that person not to hang up on you).
What's a novelist to do? If you're publishing the book yourself, you're probably less at risk because you won't be indemnifying against infringement. Publishers get uptight about stuff like that and insist on some security in the form of warranties and indemnity. On the other hand, a publisher may be able to assist you with getting rights and permissions from a studio. If you're on your own and you're still concerned about getting chased, consider whether you can make a realistic fair use claim. That is, can you demonstrate that your use of the dialog is transformative -- for example, Woody Allen's use of dialogue from Casablanca in Play It Again, Sam, was transformative (though Allen likely acquired permission for that and the film clips).
Speaking of great movie dialogue ... we're partial to Things Change (Don Ameche's swan song). It's got dialogue -- written by David Mamet and Shel Silverstein -- with some serious staying power.