Q: I’m in pre-production for a feature film, a large chunk of which will be shot in my living room. I have various movie posters in my living room from — movies like Seven, Aliens, etc. — not to mention a few pieces of mass-produced framed art. Is it easy to get clearances for this sort of thing if they don’t play into the movie and are just used as background? Will it affect me if only pieces of the posters appear in various shots (either out of focus or very close-up)?
A related (but possibly different) question is this: the film relies on showing iPhones receiving text messages. What is the legality of showing logos like Apple and AT&T?
A: So your living room is filled with posters from movies like Seven and Aliens? I hope you lightened the mood in your foyer with posters for Henry: Portrait of a Serial Killer and I Spit on Your Grave.
Moving away from the questionable atmosphere of your living room, let’s get to the first part of your question. The good news is that you seem to understand that clearance is an issue.
The posters in your living room are works protected by copyright. Because of this, you can’t make copies of and distribute those works (which is what you’d be doing if you distributed a film displaying the posters) regardless how much they play into your film. Therefore, if you want to use the posters in your film in any capacity, you’ll have to experience the joy of contacting the studios’ clearance departments. (Similarly, you’ll have to get permission from the copyright owners in the mass-produced framed art — just because something’s ubiquitousdoesn’t mean it’s not owned by someone.)
As for your chance of clearance success, sometimes studios care if you use their posters/clips, sometimes they don’t. It may come down to your film’s plot or the scene in which the posters are used. If you’re going to show close-ups of the posters being splattered with blood as your protagonist disembowels orphaned dolphins, clearance is probably going to be an issue. If it’s a remake of My Dinner with Andre seeping with indie-ronic-self-awareness, and the posters are simply visible in the background, you may have a better shot. The studio may want money for the license, it may not — it could depend on how the morning commute went for the clearance person to whom you speak.
Unfortunately, getting an initial ‘thumbs up’ from the studio may be the easy part. If any actors are depicted in the movie posters, the studio’s permission will likely be conditioned on you also getting permission from the actor(s) depicted in the poster (no, the Alien from Aliens doesn’t have any rights; besides, she’s too busy making commercials with her really creepy child friend). The studios require actors’ permission for a few reasons. First, an actor may have a provision in his/her agreement granting approval rights over any clip/image licenses (but this is usually reserved only for the A+ Listers). More likely, the studios are simply afraid of being on the wrong side of a “right of publicity” suit brought by an actor.
Should they be? Probably not. Under the law, a person’s right of publicity is only violated when that person’s likeness is used in a commercial manner. It has been held that a film, while intended to make money, is more akin to an artistic work than a commercial venture (I guess the courts didn’t see the G.I. Joe movie). So if the use of an actor’s image on a poster in the background of a movie scene doesn’t violate that actor’s rights, why does the studio care? Because as big and bad and scary as they are, studio executives are petrified of finding out from Nikki Finke that their studio was named in a frivolous right of publicity suit by some disgruntled star. In other words, while there may be no solid legal justification for requiring an actor to sign off on a simple license allowing a filmmaker to use a poster in the background of a scene, for practical purposes, studios want to avoid all risks, especially in course of doing something that’s in essence a charitable venture.
Risk avoidance without legal justification is also relevant when you’re talking about the use of a third party trademark in your film (like the Apple or AT&T logos). Everyone thinks that there’s a legal reason behind the policy to clear the use of trademarks in a film. It’s not “clear” that there is (I’m really proud of that one). For something to be considered trademark infringement, the public has got to be confused into thinking the company using the trademark is either the owner of the trademark or is somehow affiliated with or sponsored by that owner. I doubt that anybody thought that Hershey’s, the maker of Reese’s Pieces, was the acclaimed filmmaker behind E.T. Oddly, the best possible claim may be the result of a self-fulfilling prophecy. Due to the culture of clearance, most of the public knows that almost everything in a movie or TV show is cleared. Therefore, it could be argued that the public now assumes that if they see a trademark in a movie or a TV show, the producers got permission to use it. If that’s truly the case, an argument could be made that moviegoers may mistakenly assume that there’s some sort of affiliation between a studio and any brands displayed in their movies.
The truth of the matter is that there may be nothing in the law that prevents you from using a third party trademark in your film without permission. That being said, if you do so, and it’s not considered flattering by the company (or the board is particularly cranky that day), you may wind up with a (possibly frivolous) lawsuit on your hands. Speaking of hands, in 2006, NBC was sued by the company that makes the garbage disposal InSinkErator for a scene in the show Heroes in which a hand was mangled by the aforementioned disposal. Legal analysts questioned the legal validity of the claim. It didn’t matter. NBC didn’t want to spend the money to fight it and eventually settled (and agreed to remove the trademark from future airings). It was easier to concede to a weak claim than to spend the money and time fighting it. If a studio doesn’t want to get sued by a major corporation, I’m sure an upstart filmmaker with movie posters and mass-produced art in his living room doesn’t want to either.
Note: only showing portions or out-of-focus shots of the posters/brands may do the trick but only if you make it so they’re unrecognizable (i.e., don’t only show the Alien’s cute little mouth within a mouth and expect to be off the hook — you’ve got to leave people wondering “WHAT’S IN THE BOX??!! WHAT’S IN THE BOOOOOOOOOX??!!”).
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.