Clearances For Motion Pictures

© John J. Tormey III, Esq. All Rights Reserved.

This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.

It is actually quite common for individuals who incidentally appear in a film or television shot, to later sue or otherwise claim upon the production company or network.

Attorneys practicing in the U.S. who have worked in Business Affairs or other in-house positions at entertainment companies, as well as most all entertainment litigators, will confirm this. (I have served as both, prior to my solo law practice).

Producers usually feel that the commencement of such a nuisance claim is a sleazy thing to do, and the sign of someone with too much time on his/her hands. The feeling is understandable, unless the person incidentally depicted is truly ridiculed or hurt in some way. But many Americans use litigation as a sport, and greed is a powerful motivator.

If a person's name or likeness is recognizable in a shot/script, and no written "clearance" is in place, the production is that much more at risk.

Period.

The dollar value of the risk or exposure usually cannot be accurately quantified, unless and until the issue is litigated.

Period.

These principles even apply to locations, albeit under a different legal theory. Consider the Hollywood Chamber of Commerce that licenses uses of the famous "Hollywood" sign located up Beachwood Canyon. The Chamber has, at least in the past, believed that it has the right to claim and sue for unauthorized uses and depictions of the "Hollywood" sign itself - even though the sign is comprised of but a bunch of letters. In any event, reasonable minds have differed in the past as to whether there is legal support for these types of "location" claims. Rather than risk it, a careful producer usually "clears" depicted locations - or else moves the shot to a different location if the "clearance" is too expensive.

Sure, a producer can try and fly under the radar on the "incidental use" issue. Many do try this. But seemingly incidental shots and uses cannot necessarily be assumed to be immune from claims. Some of these seemingly-innocuous uses can in fact turn out to be legally actionable. Even if not legally actionable, a nuisance claim or lawsuit predicated upon such a use, even with no supporting legal merit to it, can become an expensive headache. In other words, the law is what you read in the casebooks and statutes, but life is what happens out on the street.

Moreover, most of the good stories never make it to the casebooks. Most of these types of "clearance" claims are never litigated, much less revealed by the publication of judicial opinions thereafter. From a defense counsel's perspective, it is often worth paying the claimant US$2,500 or more, just to go away. Oftentimes, the deductible on the errors and omissions ("E&O") insurance policy for a film can be at least US$10,000. Sometimes the deductible is even more. Therefore, in practice, the film company may simply pay the claimant, rather than even report the claim to the E&O insurance carrier. Moreover, the E&O carrier will typically not defend against the claim unless and until the suit is actually commenced or filed. So it is often the producer's or distributor's exclusive headache until the lawsuit is filed.

The New York statute on point is New York Civil Rights Law, Sections 50 and 51. If anyone thinks that an individual can't sue for an unauthorized use of his/her likeness, then that skeptic should read that statute and the cases decided under it. California and most other American states have a similar law on the books. A private person usually sues under his/her "right of privacy", whereas a celebrity usually sues under his/her "right of publicity".

It's rough out there. One should obtain signed written clearances from those whose names or likenesses appear in one's picture.

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My law practice includes the field of entertainment. If you have questions about legal issues which affect your career, and require representation, please contact me:

John J. Tormey III, PLLC
217 East 86th Street, PMB 221
New York, NY 10028
(212) 410-4142 (phone)
(212) 410-2380 (fax)
e-mail: brightline@att.net
http://www.tormey.net


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