August 2007 Scene Magazine Article

Thank you. Thank you very mush…
© 2007 Kevin E. Houchin

With our local film festival, the TriMedia Film Fest (www.trimediafilmfestival.org) coming up September 7-9, I thought it would be fun to take a look at some of the legal issues that go into making a film, believe me, there are plenty, but the ones that are most fun involve copyright. Let’s take a look at an issue facing one of the festival’s entries from last year. The film in question (we’ll call it G&A) includes a female Elvis impersonator as one of the characters. It uses some Elvis tunes as part of the soundtrack. Simple enough one would think–just pay the Elvis estate the licensing fee for the music and get permission to use Elvis’s likeness in the form of the impersonator.

Not so fast hound dog. The Elvis estate won’t release the music rights unless the backers pay royalties anytime an Elvis image shows up in any of their projects. (It happens that the backers of G&A also finance a lot of other projects as a major broadcaster.) Long story short: the film stays in the can. Feeling pissed off? So am I.

As a copyright and trademark lawyer, I understand the need to protect people’s rights to their creative work (copyright and patents), and to protect their investment of time and money in building a distinctive brand (trademark). But there has to be a balance, and I don’t think the Elvis estate is not honoring that balance. The framers of the US Constitution gave Congress the right to establish Patent and Copyright policy balancing advancement of society though the arts against individual rights of artists and inventors.

The creative rights of authors and inventors are offset in several ways. First, copyrights and patents expire on a certain date and “fall” into the “public domain.” Once the term expires, everyone can freely use those works directly in new work and thus advance society. The second balancing point is the free expression rights granted under the First Amendment. These free expression rights inform and motivate the final balancing theory, known as “fair use.” Fair use is a good thing for everyone in the creative industries to know about.

Remember the point of intellectual property law is to advance society and society doesn’t advance unless creativity is shared–we can’t hide our lights under bushel baskets and expect our community to prosper. Yet, we can’t just rip the financial incentive to create away from authors by allowing everyone to use whatever they want whenever they want. So, when is it “fair” to infringe?

Trademark, Patent, Copyright all have fair use “doctrines,” but we’ll focus on Copyright. Copyright fair use is covered by section 107 of the Federal Copyright Act and states explicitly that it’s fair to infringe for purposes such as criticism, comment, news reporting, teaching, scholarship, or research subject to four inter-related factors. As you can see, these uses generally help advance society through intellectual debate and discussion.

The four factors are subjective, meaning there is no percentage or word count or other such objective measurements for what is fair. The first factor is the nature and character of the infringing use–is the infringer a professor quoting a passage in a scholarly journal, or a popular musician grabbing a riff to help sell records? (Think of Vanilla Ice’s “inspiration” for the rhythm in Ice Ice Baby vs. Queen and David Bowie’s Pressure). The second factor is the nature of the original work–was the original created for general use, or was the creative act how the author makes a living? The third factor is the “amount and substantiality of the portion used” in relation to the original work as a whole. This is where people get stuck on the idea of word counts or percentages. Obviously, the less you “take” the more “fair,” but if you take a CRITICAL element of the original you’ll get in trouble. The fourth factor, the “effect of the [infringing] use upon the potential market for or value of the original work.” Remember that a judge or jury that may have no creative sensibilities at all will ultimately make this subjective decision.

So, let’s get back to the Elvis impersonator. Could G&A run without permission from the estate? The practical answer is that the filmmaker would probably prevail on the issue of the impersonator as long as no endorsement of the Elvis estate is inferred. But, if the filmmaker wants to run the film with the actual Elvis recordings as part of the sound track, she needs permission for at least the music. In this case, as in most films, the music is a very important creative and emotional element. So, the film is canned until the Elvis estate backs off. Any bets on when that’ll happen? I didn’t think so.

Kevin E. Houchin is principal of Houchin & Associates, PLLC – a copyright, trademark, arts & entertainment, business development, and branding firm located in Fort Collins, Colorado. To contact Kevin, call 970-493-1070 or email kevin.houchin@houchinlaw.com.






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