The IP-ologist: The Intellectual Property in a Film (with a little bit about stop-motion)

Feature films, documentaries and even 10 second adverts require a huge number of people to come together in order to produce a final product. Projects can have collaborations on the scripts or screen-plays, multiple camera angles can require multiple camera operators and before the cameras even start rolling there are contributions from numerous people. Every little contribution adds up to creating an original piece of work and this means that there are a significant number of intellectual property issues to consider. 

Whether it is the original screen play, the music, the costumes and props, the decisions over the set up of the scenes and even the act of manipulating the camera, intellectual property issues come up. Post production, there are further considerations over the editing. Getting intellectual property right can mean the difference between being recognised as an author or or seeing the credit for your hard work being passed to someone else.

It is important to understand the legal frame work in which projects are made so that creatives can best utilise the rights at their disposal and be fairly recognised for creativity and input. Below is a quick look of various ways productions such as films and television shows interact with intellectual property law so that as directors, producers those with a creative streak are in the know from pitching the idea right up to the premier.

Pitching the idea

Before we even get to any filming, it is important to understand the extent to which you can protect your idea. Unfortunately, it is not possible to own an idea per se but there are ways to protect the expression of that idea. Copyright protects original works. You may be the author of an original work which is the manifestation of your idea but it is only once you “fix” the original expression into a work (writing it down, taking a photo, or filming) that you may hold any copyright in it. This means that there is a risk, when speaking about your idea to a friend or pitching your idea to a production company that they will listen to you and then create something very similar by themselves without infringing on your copyright.

When pitching and during the formation stage of your piece of work, it is important to understand the rights related to confidential information. If the information you impart is not public knowledge and would be considered confidential (because you have not made it public) and you have a reasonable expectation that the information you share will be treated as confidential (because of the mutual understanding of confidentiality) then should a production house hear your pitch and then take the idea for themselves, you may want to explore whether you have a claim for breach of confidence. An email exchange before and after a pitch clarifying what was discussed and that it was confidential may be useful evidence in such a claim, but is no guarantee.

Use of detailed treatments or pitchdecks may be a way of protecting your work to some degree as you could use these as evidence to show the similarity of productions, but it is by no means a given particularly as these are usually used to convey ideas rather than an actual work. A fully formed storyboard would be even better because this would convey the a significant level of detail (although this is rarely done ahead of a project being commissioned).

The “stolen idea” is a classic pitfall to avoid and it is important to understand the limitations of intellectual property protections available as it is not possible to protect an idea for a type of TV show or Film or perhaps even a selection of shots to use for a project.

Copyright in the original work

When considering the underlying elements of the project, it is important to understand some particular copyright issues. Copyright protects original works that have been “fixed” into a medium of expression. Copyright protects (to name only a few) the screenplay text, photos, films, books, even dance or mime. It arises automatically at the moment of fixation – when the photo is taken.

When filming, copyright can subsist in the video that is shot provided it is sufficiently original (as well as other requirements). For our stop-motion enthusiasts, this can mean that there is copyright in the referencing video (in which a person enacts the motions that the stop-motion character will copy), copyright in each frame of the stop-motion production and copyright in the final stop-motion product. This means that if you use a referencing video created by someone else, you could be infringing on their copyright.

What about protecting the type of production you have created? Whether there is copyright in a TV format has been considered in a court case involving a television game show format called “Minute Winner” in which contestants had a minute to complete tasks in order to win. It was claimed that “Minute to Win” was a an infringing copy of “Minute Winner”. The court decided that it was possible for a game show format to acquire copyright protection, but there had to be clearly identified features distinguishing the show from similar shows and they had to be connected in a framework which could be repeated so that the show could be reproduced in a recognisable form. Unfortunately, Minute Winner was not specific enough and lacked the clarity to gain such protection as members of the public performing tasks to win prizes was common place. The decision is available here –  Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd [2017] EWHC 2600 (Ch)

Who is the author?

When creating an original work, the author of the work is also the first owner of the copyright that subsists in that work. If you are employed and you create a piece of work during the course of your employment, then the employer will own the copyright.

There can be (and frequently is) more that one author in a work and the issue of joint authorship was explored by court in – Kogan v Martin, a case about the authorship in the screenplay for the film Florence Foster Jenkins, starring Meryl Streep and Hugh Grant. In this case there was a dispute about the contribution by Ms Kogan when Mr Martin wrote the screenplay. It was held that when determining the question of joint authorship, it is never enough to ask who moved the pen and it was possible for authorial contributions to be made, about the plot and characters. This is worth bearing in mind when collaborating or asking for advice or contributions to a piece of work. It is possible for significant contributions to not be authorial, but it is also possible for seemingly minor contributions to be sufficient for the contributor to be considered a joint author.

The typical position for authorship in a film is for the authors to be the producer and director (when they are not the same person) so joint authorship can arise quite easily in collaborations. This question came up regarding a skydiving video shot over Mount Everest when one individual made the arrangements for the shoot possible and the other directed the camera during the shoot (in mid-air).

It is important to note that this is scratching the surface for copyright but the copyright owner is entitled to reproduce the work, issues copies to the public, rent or lend copies, perform, show or play the work in public, communicate the work to the public online (or otherwise) and make an adaptation. The rights that the author is entitled to depend on the type of work in question. For example, the author of a film does not have the exclusive right to an adaptation, but the author of a literary work does.

Moral Rights

Being an author of a film (or any original work) also entitles you to what are known as moral rights, the non-economic rights associated with the work. These include, amongst others, the right to be credited as an author and the right of integrity (to object to derogatory treatment of the work).

Performers Rights

There are also moral rights for performing artists, including the right to protect their performance against derogatory treatment and the right to be identified as a performer in live performances so it is important to be aware of these too.

The Edit

There was a famous case regarding a pint of Guiness, a funny dance and a series of jump cuts and it is worth being aware of the decision so that it is possible to understand the protections on various elements of post-production. The case involved the film “Joy” by British commercial filmmaker Mehdi Norowzian and a Guiness advert called Anticipation (but also referred to as Dancing Man). In Joy a man performs a dance in front of sheet on a rooftop and in Anticipation a man performs a funny dance behind a pint of Guiness but in front of a purpose built background on what looks like a rooftop. Both productions use jump cuts. Norowizian was inititally asked by Guiness to produce the advert, but dropped out and Anticipation was completed by another filmmaker with the result being similar to Joy. He took Guiness to court for copyright infringement but it was decided that the use of jump cuts in the production could not be protected by copyright as it was a filmmaking technique.

Documentary film considerations

Use of film footage for a documentary highlights the various exceptions that may be available to filmmakers. Under what are usually called the “fair dealing” exceptions: non-commercial research and private study, parody, news reporting, or educational use (to name a few) the use of another’s original work must remain fair.

The reason for the use of an original work is significant when considering whether to include it in a documentary. You are allowed to use quotations of other works under the fair dealing exceptions but there is a requirement to use only as much of a work that is necessary to make the point that is being made (as well as including a sufficient acknowledgement). Documentary creators should take note.

The proportion of the work used is also important. In a case regarding a documentary about the film Clockwork Orange, a documentary using 8% of the film (and 40% of the documentary) was considered fair use, but it is important to understand that there is no definition of what is “fair” in this situation. It will be decided depending on the circumstances.

Understanding the exceptions under copyright law that might be applicable to a project is important and those above are set out just to highlight what exists, rather than attempting to provide a comprehensive list.

The props (or the figure)

There is a famous case relating to the intellectual property ownership of the Storm Trooper helmet, as used in Start Wars. The question that the Supreme Court had to consider was whether a Storm Trooper helmet was an artistic work and therefore qualified for copyright protection as a sculpture. It was decided that the helmet was utilitarian and not considered an artistic work because it was an element in the process of production for the film.

This decision may be of particular note for our stop-motion film makers. The figures in use may well be considered elements in the process for the film and not benefit from copyright protection as an artistic work themselves. An unregistered design right or a registered design right may be available as the best way to protect props and figures but this would depend on the individual character of the designs themselves.

Promoting the project

The poster promoting the film can also be a source of copyright considerations. In the film Carry on Cleo a film poster was used to parody the Cleopatra poster which had been used for the film staring Richard Burton and Elizabeth Taylor – Twentieth Century Fox Film Corp v Anglo-Amalgamated Film Distributors. It is important to note that this case was decided before the parody exception was allowed under English Law and may be treated differently today.

Other considerations: Trade Marks

Earlier it was set out that it was not possible to protect the format of a TV show. The creators of Who Wants To Be a Millionaire understood this and created a significant portfolio of registered trade marks (which are a completely separate branch of IP rights to copyright) to protect it from copycat game shows. A selection of registered trade marks is a good way to protect a project provided conditions for registration are met and they are a must for any production company as reputation develops.

Hopefully this has provided a useful insight into the various intellectual property considerations that creatives, producers and directors should have before, during and after embarking on their next project. This is just scratching the surface however, and it is best to fully understand the copyright framework and the exceptions available in order to fully benefit. A suite of agreements signed upfront can prevent a serious level of heartache later. From NDAs, to Production Agreements and Actor Waivers, it is possible to clearly set out who is responsible for what and what they are entitled to but before getting into any legal agreements a firm understanding of intellectual property will go a long way.

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