|About Us What Is Clearance? Services Guidelines Resources Contact|
CLEARANCE GUIDELINES for PRODUCERS
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.
News and/or Stock Footage
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.
Still photos fall into several categories:
Publicity Photos (star headshots) older publicity stills have usually not been copyrighted and since they have been disseminated to the public, they are generally considered public domain and therefore there is no necessity to clear them with the studio that produced them (if you can even determine who did). Newer publicity stills shot for a specific film or television program may contain a copyright - if they do you are required to clear them with the owner of the copyright, usually the film or television company that produced the program.
Paparazzi Photos (taken by photographers such as Ron Galella) must be cleared with the photographer. If you don't, the photographer will show up and demand much more money than he would have charged had you gone to him in the first place. He might even sue you.
Magazine Covers & Book Covers involve two clearances: 1) the magazine and 2) the photographer who took the photo. This applies particularly to such magazines as Vanity Fair (you must also obtain permission from Annie Liebowitz if she shot the photo ), People (Steve Shapiro shoots a lot of their photos), Cosmopolitan (Francesco Scavullo) as well as Life and Playboy. Producers frequently do not clear magazines such as Time and TV Guide and no one chases them, but as time goes on, artists become more aware of their rights and it becomes more dangerous to take chances. Its best to check with the publisher of the magazine or book to see if they have any contracts in place with the photographers before hand. If you do use a magazine or book cover and the publisher has told you you do not need to clear the photographer(s), the general rule to use it is that you must see all four corners of the magazine, or it must be obvious that it is a book or magazine, i.e. no zooming in on a particular photo unless you see that it is a book or magazine first. Interior photos and any written article inside the magazine or book must be cleared with the publisher. If you zoom in on a photo (for instance one photo out of several on the cover of People), and it seems apparent that you are only interested in that photo and its not obvious that it is a magazine the photographer may come after you.
Still Photo Houses - There are also photo houses such as Wide World Photo, Bettman Archives and Michael Ochs Archives which will license photos to you which they have the right to do. The cost of licensing each photo varies from approximately $100 to $500 and up. They also will often reduce their fee per still if you license a lot of photos from them for a project.
Films & Stills
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 http://catalog.loc.gov/ . 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.
However, prior to the 1976 Copyright Act, there was a previous copyright act, known as the Copyright Act of 1909. Under this statute, once an artist had created a work of art, he immediately was granted what was called an "unpublished copyright." Until such time as he published his work, he had a common law copyright. Once he published this work by an act such as making thousands of copies and handing them out to the public, and did this without putting a copyright notice on his work, his work was considered published without notice and went into the public domain, where all were free to use this work without permission from or compensation to the copyright holder. Registration consisted of depositing 2 copies of your work with the Copyright Office once you had published it with a copyright notice. So not having a registration in the Copyright Office does not mean that as work is not copyrighted. The true issue is whether it contained a copyright notice when it was distributed to the public. The initial term of copyright under the Copyright Act of 1909 was 28 years. In the 28 th year, the owner of the copyright had to renew the copyright. If he did not, his work went into the public domain. If he did, he received another 28 years of copyright protection. Once the 1976 Act was enacted which gave all works of art 75 years, a 12 year additional term was added onto the 28+28 years = 56 years, thus granting a total of 75 years to these works. 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.
The trailer issue falls into the first way. Most of the 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. The 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 of these trailers also contained material that appeared to be from the movie but was actually shot directly for the trailer. That material, since it did not contain a copyright notice, would also fall into the public domain.
The major argument has been that the scenes from the film itself were protected by the copyright on the complete film. However, one 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 of this, most studio contracts have required licensees of clip material to copyright their productions so as to maintain the studio's copyright in the clip.
Courts generally tend to back the copyright holder, since the Constitution has granted copyright holders rights to their works in order that they may prosper. Generally, publication is not defined as handing out three copies to your friends. However, running a television commercial prior to 1976 without a copyright notice has been construed as publication. On the other hand, one broadcast of "Peter Pan" on NBC (to millions of people) was held not to be. Recently, the Martin Luther King estate lost their lawsuit over the "I Have a Dream" speech when a Georgia court held that the dissemination of his speech to all the newspapers and the news cameras without a copyright notice on the written speeches which he had given to the news media before he made the speech, constituted publication without notice and therefore his speech was in the public domain. This is currently being adjudicated in another court of law which may rule in the opposite direction.
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.
Furthermore, 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 broadcast. Consequently, 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 or it is identified verbally. This 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 & 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. 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.
Stuntmen - Beware of stuntmen. Because you can't see them and consequently cannot immediately determine how many of them need to be paid, the use of a clip can be very expensive. Until very recently, you used to have to obtain permission and negotiate a fee with each stunt person just as you do with SAG actors. Recently, the code was changed. Now all that is required is to obtain their payment information and send them a SAG scale payment. However, it is difficult to determine how many stunt people are in a scene, since frequently stunt credits are negotiated and not all the people who worked on the stunt are listed. The best approach is to assume that anything that vaguely looks like a stunt is one. The easiest way to determine the names of the stunt people is to contact the stunt coordinator and have him identify the stuntmen in the scene you are interested in. This is not always foolproof, since the stuntmen change from day to day and the coordinator is a busy man whose main interest is not your show. However, they are usually very cooperative, since they know that this means money to them and their friends.
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.
SAG payments never stop according to SAG. You cannot buyout an actor for the use of clips. Each additional run requires an additional payment to the actors, with the 2nd run at 100% and then 75% on down. However, if you have hired the actor to appear live on your program for an overscale fee, this fee will include the use of the actor's clips on a buyout. Just be sure you get this in writing.
(Please note, in the following we are discussing AFTRA with regard to television, however many television shows are now shot under SAG rules. Please check with AFTRA or SAG to determine which rules a television production was produced under to determine if you would use SAG or AFTRA rules.)
Actors - 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.
AFTRA 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.
New Rate - 11/15/03 - 11/15/07
$653.00 30 minute non-dramatic TV
$65.30 10% agent's fee
$81.63 12.5% AFTRA p&w
$799.93 TOTAL (30 MINUTE)
$880.00 1 hour non-dramatic TV
$80.00 10% agent's fee
$121.05 12.5% AFTRA p&w
$1,089.23 TOTAL (1 HOUR)
$1,074.00 90 minute non-dramatic TV
$103.80 10% agent's fee
$142.73 12.5% AFTRA p&w
$1,284.63 TOTAL (90 MINUTE)
$1,296.00 2 hour non-dramatic TV
$129.60 10% agent's fee
$142.78 11% AFTRA p&w
$1,440.78 TOTAL (2 HOUR)
Directors (DGA) and Writers (WGA) Payments
CURRENT DGA AND WGA RATES:
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.
Synchronization Licenses Musical compositions are copyrighted just as films and television programs are and must be licensed for use. If a producer simply wants to have a character sing "Happy Birthday," he must obtain a synchronization license for use of the music publishing (to synchronize sound with picture) for this use. The fee varies depending on length of music used, how it is used (visual vocal, background instrumental, etc.), number of uses, media in which it is used to be used etc. Once again, it is prohibitively expensive to obtain all rights in all media for a composition, in the range starting at $20,000.
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.
Music as part of previously created Feature Film and Television Programs - Sometimes, when you purchase a clip that 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 (American Federation of Musicians) 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. 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 if the musicians are members of the Guild or if the record company is signatory to the guild (which most are), and often the license the record company sends you has a clause in it that says the producer is liable for this payment, should it be applicable. 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.
Public Domain Music Music and lyrics written by an American composer and published in the United States in 1922 or earlier are in the Public Domain in the United States. Public Domain songs may be used by everyone, for profit-making and without paying any royalties, because no one can claim ownership of a song once it goes into the public domain. If you create a new version of a public domain song, you can copyright your version and no one can use it without your permission. However, the original song remains in the public domain, and anyone else can also make and copyright their own version of the same PD song.
Be careful to determine that the version of the song you use is actually in the public domain, as newer versions can still be protected by copyright. The only way to confirm that a song is actually in the public domain is to find a copy of the song with a copyright date old enough to be in the public domain, and then you should always work from that version. If you work from a version that is still copyrighted, the copyright owner could make a valid claim for royalties and/or copyright infringement.
There are songs written after 1922 which are in the public domain in the US, but only rarely can they be confidently identified without the advice of an attorney or rights clearance agency. Countries outside the US may offer copyright protection for 70 years or more after the death of the author. There is no such thing as an "international copyright". If you wish to use a song outside of the United States, you must check the copyright laws for each individual country where you use the song.
If the author is unknown or anonymous, this is usually a good indicator
that the song is in the public domain worldwide.
|Copyright © 2001-2006 www.creativeclearance.com - All Rights Reserved. Designed by SmartWebby.com|