Prior to production, you should have your entertainment attorney prepare a screenplay clearance report. Essentially, this report details potential legal problem areas in the screenplay. The report should combine the efforts of a copyright records search to identify conflicting copyright ownership and infringement issues, and a compre-
hensive legal analysis to identify other intellectual property, defamation, and liability issues.
The report should alert you to the following legal issues, if present:
• Libel and Defamation. (See Libel and Defamation, p. 276.) Documentaries need to be particularly aware of libel and defamation claims. Any material which may affect somebody's reputation should be scrutinized carefully. If the person being discussed or depicted is not a public figure like a politician, extreme care should be used to ensure that all portrayals and discussions about that person are accurate and truthful. Ideally, anyone discussed or portrayed in the film should give his or her written consent. If you have E&O insurance, your insurance carrier will probably require written consent for all depicted individuals.
• Invasion of Privacy. (See Privacy Rights, p. 272.) Does your film discuss private facts about people's lives? Remember, here the inquiry is focused on whether your script is prying into someone's personal life in an overly intrusive manner. For fictional films and programs, you should check all character names: you're better off having a character name which nobody in the real world shares or, conversely, which many people share. A character name shared by only a few people may help support an argument that your film is referring to that real individual, which is a prerequisite for a defamation or invasion of privacy lawsuit. For instance, from a legal perspective,"John Smith," and "Xerxes Vander-Flarpenboot" would be good legal choices for character names. The former name is common, the latter name unique.
• Copyright. (See Copyright, p. 249.) Your attorney should flag any instances of copyright infringement. This is a two-part inquiry, which scrutinizes any copyrighted works referenced in the screenplay as well as the copyright to any works upon which the screenplay is based.
• Referenced copyright. The first part of the inquiry focuses on any third-party copyrighted material directly referenced in the screenplay, such as song lyrics sung by a character or a scene in which two characters watch a copyrighted movie. In other words, references in the screenplay itself to other copyrighted works that will need to be cleared and licensed. If these works cannot be cleared, they should be changed to noncopyrighted works or works commissioned by the production company as a work for hire. If neither clearing the copyright nor changing the work is possible, the copyrighted work should be omitted from the film.
• Underlying copyright and chain of title. The second part of the inquiry analyzes the copyright in the screenplay itself, as distinguished from any copyrighted works referenced in the screenplay. Here, the attorney will try to make sure that the structure, plot, scenes, characters, and dialogue are original with the screenwriter. If these elements are taken from another copyrighted work, (e.g., a graphic novel, play, book) the attorney will need to verify the screenwriter had the right to create a derivative work based upon that source, and that the screenwriter has validly transferred that right to the production com pany. (See Adaptations, p. 88.) If the screenplay was written by two or more authors, the attorney should verify that that all authors have conveyed their copyright interests to the production company. (See Appendix A: Joint Authors, p. 261.)
• Trademark Infringement and Tarnishment. In addition to ensuring that the screenplay doesn't depict any copyrighted works without permission, the production attorney should review all script references to trademarked products and services. Like copyrights, unlicensed trademark use should be avoided. The attorney should be on the lookout for any use of trademarks:
• That might cast that trademarked product or service in a negative light, or
• That implies that the owners of the trademark endorsed the film. (See Trademarks on the Set, p. 192.)
• Potential Legal Problems in Production. The attorney should also bring to bear her general legal knowledge. If a scene involves extensive pyrotechnics, the attorney should make note that special permits will probably be needed. If the movie involves extensive use of child actors, the attorney should note that special child labor laws may restrict the shooting schedule. This portion of the review is often done in conjunction with script breakdown.
• Conflicts with Talent Agreements. Talent agreements often impose restrictions upon the way an actor may be photographed. If partial nudity is required, make sure that there is a nudity rider in that actor's contract. For child actors, make sure the parents give their signed consent to allow children to appear in scenes dealing with adult situations.
The screenplay clearance report should be completed well before shooting takes place to give the production company enough time to secure the proper permissions or to make creative changes as needed.
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