NEW - The Sonny Bono Copyright Term Extension Act of 1998, is the law that added 20 years to the duration of copyright. As a result of the Act, copyrights to pre-1978 works that would have lasted 75 years from their first publication now last 95 years; and copyrights to 1978 and more recent works whose copyrights would have lasted for the lives of their authors plus 50 years now last for the lives of their authors plus 70 years. This law was partially created in response to the length of copyright laws in foreign countries which have always been anywhere from 70 years plus the life of the author to 90 years from publication date. It is different in each country.
Once the copyright runs out, the creative work falls into the public domain and can be used freely by anyone without payment or licensing. If the work is not public domain, it is considered literary property, just like an automobile is property, and permission must be obtained from the owner for use of the material. The Copyright Act provides substantial penalties for copyright infringement ranging from $10,000 for accidental infringement to $250,000 for willful infringement.
The cost per clip depends on the rights required. It is more expensive to license all rights in perpetuity than it is to license 5 years worldwide distribution in CD-Rom, for instance, even assuming that a studio will grant you perpetuity. Many studios are currently putting together their own interactive and multimedia divisions and therefore refuse to license material for other multimedia projects. Studios rarely grant permission to use clips in advertising and promotion even when the producer offers substantial fees for this use. Some studios have reciprocal arrangements with other studios and provide clips at a much lower fee on that basis. If your project is affiliated with a studio, it is important to determine up front if that studio has reciprocal deals in place which might apply to your project.
Most studios do not function in the same fashion as stock footage houses, who will frequently give you a lower rate if you license more material. The studios generally have an attitude that they are not a stock footage house and carefully monitor who is using their footage and how it is being used. If you are using the footage in a pejorative fashion, the studios will not license it to you. Occasionally, certain studios will give you a price break if you want to use 5 or more of their films. On the other hand, if you need too many of their films, they may decide they want a piece of your project.
Contrary to popular belief, there is no rule that says you can use 5 seconds for free. That 5 seconds will cost the same $4000 as 1 minute. Therefore, it behooves you to use the entire scene you have licensed, rather than using 2-second clips from 6 scenes. The studio contracts also read that you may not edit the scenes, but this does not seem to apply in real life in that most programs cut from an interview to a clip, back to the interview and then back to the clip again, which is editing but the studios generally turn a blind eye to such things.
The studios do not care whether you license their footage or not . They do not need your money. Furthermore, the agreements that they send you to sign are generally not negotiable and are very stringent, demanding all sorts of concessions from end credits to a guarantee that you will clear all the talent and the music used in the clip as well as an agreement that you will indemnify them against any claim that may arise as a result of the broadcast of the clip. If you want the clip, you are going to have to sign their license, which is usually a "quitclaim" that not only will not warrant that the studio even owns the footage but rather than indemnifying you, requires that you indemnify the studio against liabilities that arise from the use of the footage. In a way, this is understandable since by broadcasting the material, you may be subjecting the studio to claims from third parties.
Currently, all licensors are very concerned about usage of their material in "interactive" projects, by which they mean projects in which the images can be manipulated and changed so that they are no longer recognizable. They do not want to allow this to happen, so the word "interactive" in any letter requesting permission can elicit an immediate "no" unless you find a way to explain that you are simply able to view the material without changing it. Use of material in an interactive fashion will require serious negotiations.
PUBLIC DOMAIN FILMS AND STILLS
Generally a film or still is protected by copyright if it is less than 95 years old. A work of art obtains a copyright as an unpublished work as soon as it is "fixed in a tangible medium of expression." If that work of art was not registered for copyright or does not have a notice of copyright on it and it is then "published" (which is accomplished by distribution to the public), it loses its unpublished copyright status and falls into the public domain. Once it is in the public domain, it can be reused by anyone without fear of copyright infringement since the copyright no longer exists.
However, the fact that the television program may not have a visible copyright notice on it does not indicate that it is public domain, since it could have been registered with the Library of Congress. The only way to determine whether a film or television show is copyrighted is to do a copyright search at the Library of Congress. This applies to all works prior to 1988.
In 1988, the
U.S. joined the Berne Copyright Convention which states that no
formalities are required to obtain a copyright, so therefore no
copyright notice is required nor is registration with the Library of
Congress. A program is copyrighted whether or not it has a copyright
notice or is registered with the Library of Congress. However, most
copyright holders still register their works with the Library of
Congress and put copyright notices on them since there are benefits to
them in lawsuits that arise out of the Copyright Act itself.
With the Copyright Extension, these works all have copyright protection for 95 years.
As you can see, there are 2 ways for
a work to go into
the public domain: 1)
either through not placing a copyright notice on it in the first place
or 2) through not renewing it.
trailer issue falls into the first way. Most
trailers prior to 1976 were created as new works, which contained new
material (such as" Coming Soon" etc.) as well as scenes from the films
they were advertising.
trailers did not contain copyright notices nor were
they registered in the Copyright Office or the Library of Congress. Consequently,
the new material at the very least went into the public domain. Many
trailers also contained material that appeared to be from the movie but
was actually shot directly for the trailer. That
since it did not contain a copyright notice, would also fall into the
major argument has been that the scenes from the film itself were
protected by the copyright on the complete film. However,
could argue that once you cut a clip from a film, it is a separate
entity and without a complete and separate copyright and notice, it too
becomes public domain by its publication. Because
this, most studio contracts have required licensees of clip material to
copyright their productions so as to maintain the studio's copyright in
In any event, industry custom and practice has been to use trailers prior to 1972 based on the above information. Most stock footage houses, which sell this material, can give you this same explanation.
trailers prior to 1960 offer an additional incentive, since under SAG
rules, theatrical feature films prior to 1960 do not require residuals
to be paid to actors, writer and directors when the entire film is
writers and directors in clips and trailers do not have to be paid and
actors do not have to be cleared or paid as long as the trailer clearly
identifies the film on screen over the clip as it is played
is identified verbally.
information is not contained in the SAG Code Book but
can be obtained from a SAG representative via a telephone call.
PUBLIC FIGURES IN NEWS FOOTAGE/RIGHT OF PRIVACY Under U.S. law, an individual has a right of privacy and his image cannot be used by another until he either consents to that use and thereby waives this right or until he becomes a public figure, either by placing himself in the limelight and making himself a person of public interest (such as becoming an actor or politician) or by some act which gives him a news significance (such as a serial killer like Jeffrey Dahmer whose actions are chronicled in the news media). Because they are public figures, consent is not required from public figures such as President Clinton and Marilyn Monroe when they appear in news footage, which includes material shot at a news conference covered by more than one news camera or celebrities arriving at an event such as the Academy Awards, etc., for which they were not contracted but appeared in public voluntarily.
This is because these public figures were aware that by appearing at the press conference they were giving permission for use of their appearances in the footage anywhere it might appear. This situation also applies to newsreels (such as Universal Newsreel) which ran in movie theatres in the forties and fifties and are very obviously news.
PUBLIC FIGURES IN NEWS TELEVISION PROGRAMS (interviewers-interviewees). Public figures, such as Mike Wallace, Barbara Walters, etc., who appear in news programs must be cleared because these programs were produced under a union (SAG or AFTRA) contract. The union contracts require current consent and a negotiated payment for use of the appearance of any artist prior to the use of an excerpt from these programs in another program.
Consequently, anyone who appeared on a news/interview program such as "Person to Person," including the host, Edward R. Murrow, must be cleared because his or her appearance would constitute a performance under the union agreements. The fact that the program was produced under the auspices of the news wing of a network does not mean that the performer need not be cleared. It is important to differentiate between news and performance.
DECEASED PERSONS AND THE RIGHT OF PUBLICITY. A deceased person has no right of privacy. In California, an estate may still have a right of publicity under the California Civil Code. This right is triggered only when a person's image is used to sell or endorse products in print ads and commercials and does not generally apply to feature films or television programs, since they tell a story or disseminate information and do not sell a product. Music videos are a borderline situation, since they are created as tools to sell records and are occasionally considered to be musical commercials. However, the unions require consent to be obtained from estates for use of deceased persons' likenesses in film clips in works such as multimedia projects, television programs, etc.
ACTORS. The Screen Actors Guild agreement specifies than when a producer desires to use an excerpt from a feature film, that producer must obtain current consent from all members of SAG (including actors, stunt people, helicopter and airplane pilots and estates of deceased performers) for use of the excerpt and negotiate a fee that can be no less than the current scale payment (see below for SAG rates). Stars may waive this scale payment if they choose. Extras do not have to be cleared or paid.
SAG also provides that if you do not obtain consent from an actor prior to broadcast of the clip, it will penalize the producer by forcing payment of treble damages, or 3 times what the actor made the day he worked on that scene. If the scale payment was $100 at the time the film was made, this is not a problem. It only becomes a major issue with a Robert Redford or with stuntmen.
CURRENT SAG RATES:
STUNTMEN. They used to be the bete noire of producers and clearance people because they were members of Screen Actors Guild, they could negoatiate whatever fee they chose. Also if they felt you were cheating them, they could avoid telling you how many stuntmen were in a stunt. Times have changes. Althought they are still SAG members, a recent negotiation with producers took away their ability to hijack clips. Now although you have to pay them, you don't have to get their permission. You still have to contact them, either to find out who else is in the stunt or to find our their payment information. But it no longer the disaster it used to be.
PRE-1960 THEATRICAL FEATURE FILMS. Because prior to 1960, the SAG agreement did not contain any provision to pay residuals to actors appearing in feature films, rule of thumb in the industry was that actors in these films did not require clearance or payment for use in clips. The guild rearranged this rule recently and requires clearance and payment unless the name of the film is "billboarded" either verbally as a voice-over or visually with a chyron while the clip is on the screen. It must be readable and must appear every time the clip does, therefore, making montages impossible to do without clearing all the talent. This rule also applies to stuntmen.
If you intend to create montages, it is better to clear all actors than find yourself with a treble damages claim much later after the show has run and the books are closed.
SAG WAIVERS. Permission not to clear and pay actors is very difficult to convince SAG to grant. Generally, they are only granted when there is a special reason, for example, profits of the show going to charity. Usually, SAG will only permit you to ask stars to waive and to pay the non-stars a scale payment. They will still require current consent.
AGENT'S FEES. Agents
are not allowed to take a commission on a scale payment. Therefore,
when you are contacting an agent to obtain permission to use his client
in a clip at scale, it is wise to offer a 10% commission. This ensures
that the agent will pay attention to your request. Otherwise, he will
put it under the three million dollar deals he has pending and you will
never get an answer.
NEW - AFTRA used to put major emphasis on obtaining current consent from talent appearing in television programs and there was no time frame cut-off. They had to be cleared back "to the dawn of time" which in television is approximately 1948. Many producers assume the pre-1960 rule applies, but it does not.
However, many negotiations with producers produced changes in these rules. Currently, if your program is less than 75% clips (meaning that 74% is clips and 26% is new material), you do not have to obtain consent from the performers, you only have to pay them. You send the payments to AFTRA and AFTRA is good about giving you their social security numbers so that you can pay them.
AFTRA is the union governing tape programs such as soap operas and variety shows. Many other tape programs, such as situation comedies, are governed by the SAG rules listed above. AFTRA also governs kinescopes, which were filmed version of early live and taped programs.
RATES. AFTRA's payment schedules are more complicated than SAG's in that there is a separate scale payment for a half-hour show, an hour show, a 90-minute show, etc. There are also specialty act rates, under 5 lines and special business. Dancers and singers also must be cleared and paid. You don't even have to be able to see a dancer's face, just the body. Once again, extras do not need clearance or payment. However, determining who is an extra can be tricky because it does not depend on whether they speak, but how they were hired on the show. Worst case cost for AFTRA comes in the supplemental market area where they generally require that you approach them for a waiver, since supplemental markets are not addressed in the AFTRA agreement. The waiver can specify payment to each performer of double-scale for television shows and single scale for videocassette. Many times, in practice, producers do not obtain waivers and simply pay single scale to all performers. These are considerations to be decided on a case-by-case basis.
AFTRA has an advantage over SAG -- there are no treble damages penalties. On the other hand, you must obtain a waiver from AFTRA to ask stars to waive. Each rerun of a show with AFTRA performers in it requires an additional payment, with the second run at 75% on down.
Futhermore, as of January 2009, a number of studios (fearing a new SAG strike) are now signing actors in primetime sitcoms and dramas to AFTRA contracts, so you no longer have to clear the actors through Screen Actors Guild but can make AFTRA payments.
Current AFTRA Rates are:
DIRECTORS AND WRITERS PAYMENTSRATES. The Directors Guild and the Writers Guild have schedules of payments required each time clips are used in a multimedia program, film or television show. There are separate schedules for feature films and television programs, which apply to the origination of the clip, i.e., the fee is dependent on whether the clip came from a feature film or a television show. Feature films rates break at a 30-second rate while television rates are much more expensive, changing rates at a 10-second cutoff. Rates can be obtained from the guilds.
WAIVERS. They DO NOT give waivers except for the Oscars and the Emmys and for "a lecture about drug abuse at the PTA" as I was told.
ONE-TIME ONLY. However, the good news is that the payments are one-time only. There is no second payment when the show reruns or is distributed on home video.
SCHEDULES. A producer is required to keep track of the film or television programs writers and directors and the amount of time used and must submit the information with a check to the appropriate guild. Episode titles are required for television shows by the Writers Guild. The guilds then write their own checks to their members. DGA charges a 12.5% P&W on top of the clip fee while WGA does not charge P&W.
COMPILATION RATE. If a producer is producing a program which is an anniversary show or the "Best of..," the DGA and WGA will levy a "compilation rate," which is a penalty for using all clips and not creating new material. All of the unions would rather that a producer hire live talent rather than use clips. The compilation rate is dreaded, since it is much more than the per clip use rate would be. There are also several versions depending on the union: the daytime rate, the primetime rate, the variety rate. The rate is arrived at by multiplying the standard writer rate times 250% times the number of half hours in the program. Even if you pay a compilation rate, you must keep track of all clips used, their length and the writers and directors, so that the union can divide up the payment you make among the various writers/directors. The only time you would benefit from the compilation rate is when you are using many short television clips. If your program is comprised of many different elements, then a clip rate is much more economical.
CURRENT DGA AND WGA RATES:
If a producer is unsure what rights he wants, it is wise to obtain a quote for the shortest usage requested and request options for all other uses. Option usually must be exercised within 12 to 24 months. This can save a producer a great deal of money, since if the program doesn't sell, he is not locked into a huge amount of money. With regard to CD-ROM and home video, publishers will generally negotiate a penny rate per tape sold with an advance against a certain number of units.
QUOTES Music is somewhat different from clips in that publishers will give a producer a quote for the use he is requesting. That quote will be good for 30 to 90 days, after which it may be withdrawn. Once a producer decides he wants to use the song and orders the license, he must then pay for the song. Publishers do not like to do all the work and then have it canceled at the last moment.
MASTER LICENSES If instead of having your character sing "Happy Birthday," a producer wants to use the Beatles version, he must license the master recording ("record). This necessitates contacting the record company which produced the version the producer wants to use and obtaining a quote for the use. The prices are at least the same, and many times much more than the sync prices. Many times, it is much more financially sensible to hire a musician with a studio and re-record the song, rather than use the original recording.
NEEDLE DROPS. A master license is required when a producer does a needle drop; i.e., uses a portion of a record under film footage, stills or another portion of his program.
FEATURE FILM AND TELEVISION PROGRAMS Sometimes, when you purchase a clip which has music in it, the master comes with the clip, since the music was already fixed to the clip itself. Occasionally, this is not true such as when a record is used in a film and licensed for that film and then a producer wants to use an excerpt. In that instance, the film's license will not transfer and the producer will have to obtain an additional license. A number of film studios, require that you obtain a master license in addition to the clip copyright license.
MUSICIANS UNION. Most feature films and most television programs use musicians who belong to the American Federation of Musicians. This union requires payment when the music is reused as a part of a film clip or a record. The AF of M is a murky area. No one seems to understand exactly how to relate to them. There are two agreements: the Film agreement and the TV agreement. Depending on which one your project falls under, the price is different. The TV agreement is generally much more expensive. CD-Rom and other new media has probably not yet been addressed by this guild.
DEALS. Normally, there are several ways to make a deal with the AF of M. One is to pay $300 approximately per musician per clip, so this can be expensive if you have lots of clips which all contain orchestras. If you have a problem of this sort, they suggest you submit the material to them and try to come to an arrangement. They are generally very helpful in giving you prices that fit your budget. But be warned, prices start about $20,000 per program.
RECORDINGS. Use of a master recording is supposed to generate an AF of M payment. In practice, television producers rarely pay additional payment for use of records. This will also probably be true for multimedia usages. This is changing, however, and the AF of M is taking an active stance in pursuing payments.
page updated 4/14/09
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