Clearances, Product Placement, Greeking + Intellectual Property

Updated: Apr 29



The protocols, laws, and definitions behind clearances are one of the most misunderstood chores in the Art Department, and we at ArtCube Nation wanted to "clear" the air on the topic.


In film and television, Art Department crew, those whose job partly entails sourcing set dressing and props, arranging product placement and greeking trademarks are also often tasked with obtaining clearance releases, renting cleared works, or sometimes creating "original" works on the fly to fill a space on camera.


From this panel, we discovered that what has been confusing the issue of clearances is different productions have different "risk tolerances" so clearance guidances differ from show to show, not nebulous laws. Given the transient nature of freelancers working on multiple gigs, they can take the guidance they understood from one show to another show assuming it's the same everywhere. Not the case.


Additionally, as so many Cubers are artists themselves, we want to promote protecting the rights of artists, but like art and design principles, there are rules and there are exceptions to the rules and everything seems to be up for interpretation.


Read the article below, jump to a topic or watch the video of the live event for clarification on the actual meaning of "fair use" versus "public domain", sources for greeked props, sustainable product placement, professional clearance supervisor or reach out to your production's best friend, an intellectual property attorney.


The panel was moderated by Eva Radke, CEO of ArtCube Nation, Founder of Film Biz Recycling, and recovering Art Department Coordinator.

tl;dr jump links


Takeaways


Stephanie Furgang Adwar Intellectual Property Attorney

.gov logos, copyright law, fair use v. transformative works, "poor man's copyright".


Dawn Cullen Jonas Clearance Supervisor + Coordinator

Trademarks, period pieces, differing production risk tolerance, defunct businesses


Joel Barkow Owner, Barkode Props, Local 52 Prop Master

pre-greeked props, automobiles, fake money, bar scenes, mic cubes, magazines,

tape v fake labels


Beth Bell CEO, Green Product Placement

Foundation story, core-mission collaboration, intended use, clearance hack at art fairs


Q+A from attendees

international clearances moral rights, transformative art, fabric clearance, mass-produced purchases, the difference between a copyright and a trademark


Definitions

Links + Downloads

Contact Information

Takeaways


  • Clear everything. Legal advice is much less costly than court fees.

  • 'Fair use' is often confused with 'public domain'. Fair Use is protection from infringement from a copyrighted work, while public domain is open to use for all.

  • A "poor man's copyright" will not protect you in court. Register all works.

  • All period piece artworks need to be cleared if it is not public domain.

  • Packaging is a trademark issue, not a copyright issue.

  • Mass-produced does not mean it's cleared.

  • Items from defunct businesses still need to be cleared. Someone owns the rights.

  • The job of greeking depends on the product and is a crossover between departments.

  • Opt for a cleared label over taping over uncleared products

  • Product placement provides an opportunity to promote sustainability and green products and indie brands.

  • Cleared art provides the opportunity to support local artists.

  • Copyright laws differ internationally.


Stephanie Furgang Adwar

Entertainment and Intellectual Property Attorney

Furgang + Adwar, LLP

stephanie@furgang.com


A founding partner of Furgang & Adwar, LLP., she brings 30 years of experience in both transactional and litigation matters in entertainment, copyright, trademark, technology, and unfair competition law. She represents a wide variety of clients in the entertainment field, including independent film productions, screenwriters, producers, actors, comedians, authors, performing artists, musicians, independent record labels, music publishing companies, and television production companies as well as obtaining, maintaining, and protecting the firm's clients' complex intellectual property rights, from licensing and other transactions through litigation.


ArtCube Founder's note: Stephanie has generously agreed to answer questions about clearance and IP from ArtCube members. Please do your homework first, be clear and concise in your phrasing, and express your gratitude.


Q: Are items found on.gov websites fair use?


That's a fairly complicated question. The first thing is that anything, any works that are created by the government, textual works, anything they write, any art they create is in the public domain and is the product of tax of taxpayer ownership.


What is not in the public domain? Government logos and seals. If you want permission to use the FBI logo on something, you're going to have to get permission to use it. You can't use the seals without permission or in a way that implies endorsement.


So does Law and Order have the right to use FBI logos, when they're telling the story about the FBI? The answer is not likely unless they have permission. Although it could very well-argued that nobody would imply permission of the FBI in a fictional narrative program.


Copyright law is not particularly nebulous. Copyright law is definitive about who owns what work.

When you create a work of authorship, you fix it in a tangible medium of expression. So when you take this idea that you have in your head, and you fix it on in, on paper, on film, on, in sculpture, in painting, and photographs, whatever medium you choose to "fix" it in, you then have copyright by virtue of the Berne Convention, whether you have a registration for that copyright or not. So you have created a work of authorship by creating it.


When we talk about Fair Use of other people's copyrights, we're talking about what Fair Use is, which is an absolute defense to infringement. It is not a permissive rule.

Photo credit: Lynn Goldsmith Infringement: The Warhol Foundation

The Warhol case, which was recently decided Fair Use is a complete defense to infringement, while the creation of unauthorized, derivative works is infringement.

When people ask, "Is this fair use?" they should be asking if "Is the work that I'm using in the public domain?"


What's in the public domain? Any works created before 1924 by just virtue of time.

For example, if you want to use, say, Rudolph the Red-Nosed Reindeer, if it's a recording from 1923, you can use it. If it's a recording from 1953, you can't use the recording, but you could use the underlying public domain composition.


Lawyers are your best friends when you're making a film.

Everyone wants to not go to lawyers because they're costly, but it's way more expensive if you make a mistake. What could have cost you a few $100 to get the right answer could cost $100,000 in litigation. So it's always better to get advice, right?


There is the Copyright Office website, you can file your copyrights if you create something that you want protection for, and you can do a search if you are looking for particular things that you think might be copyrighted and you want to get permission to use them. Sometimes it appears, sometimes it doesn't.


Q: Does sending a script to yourself in the mail dated and sealed never opening it constitute a shoestring or "poor man's" copyright?


No. Why not? While you have a copyright in the work that you have created upon its fixation, you do not have access to the courts of the state of the United States without a registration certificate. That that is a new, agreed-upon Supreme Court law. You must have the registration in order to go into court. That's your ticket of admission. When you complete a work, it is in your best interest to register that work with the US Copyright Office within three months of its completion.

Source: Law for Small Business l4sb.com

The reason for that is because you have a window of time to register it, so if somebody infringes it, you can still look back after three months. If you register it outside of that three-month window and somebody infringes before you register, you will not be able to avail yourself of particular remedies in court like statutory damages and possibly attorney fees.



This is really important because most times copyright infringement cases are not big money earners, what you really want is to stop people from infringing, not necessarily make a ton of money. So you want your attorney's fees covered and you want to be able to get at least statutory damages, which range in a willful case, from $30,000 to $150,000 per infringement.


You want to register your work so that you have that right to go to court and it's a bludgeon hit over the head of people that you want to stop them stealing your stuff.



Dawn Cullen Jonas

Clearance Supervisor + Coordinator

Vanishing Point Productions

dawn@vanishingpoint.nyc


Originally from Virginia, Dawn Cullen Jonas played Div. 1 college basketball at Old Dominion University. She came to the indie film world originally as an investor. Wanting to learn more about production, she volunteered as a production office intern and was tasked with the clearances. And now the rest is history! Today as a Clearance Coordinator, she currently works on both premium cable series and narrative films.


Q: Regarding period pieces, is it considered fair use to create a realistic version of the time period?


Dawn:

No. It doesn't matter what the period is the artwork needs to be cleared. I'm working on a show now that set in 1991 so that they're in bodegas and places like that. They have 1991 Ritz Crackers or Twinkies, or whatever the packaging is.


Reproduction is different. It's going to depend upon the production and what they will allow on this particular production. In this case, we're allowing them to recreate it authentically. They can use it without permission, but it doesn't matter what period it is.


So when you talk about packaging, those would be trademark issues, not so much copyright.

Dawn: (cont'd)

It's also going to depend on what the production allows. I have one studio that has no problem with us using real logos like NYPD and FBI, all of those seals, They don't care. But another period show this period show said, "No, you have to make to make up your own NYPD shield and patches" and things like that. So it is nebulous in the fact that every production is different. Every production has different levels of risk tolerance.


Q: What are some of the first things you do when you start a job?

One of the first things I do when I start a new job is to ask who my legal contact is and what law firm in my working with? Then I will send them a list of kinds of basic questions, like "how do you feel about these things?" and see what they come back with. It gives me an idea of what I'm going to be allowed.



Q: What about defunct companies? Many companies from 20-30 years ago don't exist. What’s the risk?


A: Well, you just have to do research, you can usually find a paper trail. Somebody usually buys the rights and trademark. I work with both trademarks and copyrights. A good example would be album covers. Many old record companies, like Polygram, don't exist anymore. That doesn't mean that somebody didn't buy their rights and trademarks.



Cleared album covers


Q: A clearance coordinator pulled some vintage bookends from the background. They were chrome, in the shape of airplanes. No stickers or markings. What is the reasoning behind this so I can understand it for future projects?


Depends on how decorative and how distinctive, more than anything. The first thing you do with something like those books bookends is reverse Google Image search - your best friend. See if it pops up that way, and then you just Google it. Researching is the most important thing in this job.


I mean, people say, "Oh, but this is mass-produced, there's no copyright". That's not true.
Mass-produced does not constitute cleared

Because I hate saying no, I want to work with the art department. I want to say yes to everything, I want you to have everything that you want. So I have to figure out ways to find the information but I can't just do it because I like it, I have to have something to back it up.


Sometimes you can't get a definitive answer. Sometimes I gather all the information I have when I can't find a definitive, but I think that it might be okay. I run it down that there's no estate, no heir to this specific artist estate. I take it all to the production attorney and ask them to review it because it's not for me to decide if I can't come up with a yes or a no.


Q: Tell us about the most challenging clearances. Is there something particularly difficult, like tattoos or graffiti or is there anything that is just a nightmare?


There have been lots of difficult ones. Has anybody been to Minetta Tavern in New York City? There are like a billion things on the wall. There are all kinds of caricatures, I mean, the walls are just absolutely filled. My understanding is no one's been able to ever film there without covering everything up because they couldn't clear it. It took me about three weeks, but I cleared it all by tracking down the heirs to the artists that did the caricature


Manetta Tavern Photo: Restaurantgirl.com

'My assistant is has a background in genealogy."





You understand how to follow those threads. We use ancestry.com to find and find obituaries to find next of kin.


The hardest one, I think, was this was a scripted element in a show, and it was some sort of card game sort of I can't remember the name, but it's sort of like Dungeons and Dragons. The cards were really large and had artwork on them, and it was scripted and the characters were playing this game, so there was no backup. It turned out that there were three different companies that owned the rights.


"It came down to the morning that they were filming when I got the final approval. I didn't sleep that night."


Greeking


Wirify.com

Why is it called greeking?

In typography, greeking obscures portions of a work to emphasize or display placeholders for unavailable content.





In Film and Television, the process of greeking is meant to obscure the trademarks of brands to avoid possible legal action by obscuring the unlicensed trademarks.


We spoke to Joel Barkow Joel has spent 30 plus years in the TV and Film Industry in New York City. He worked as a Prop Master and Set Dresser on dozens of films and television shows. Then he leveraged his deep knowledge of the industry into the creation of a prop rental house that serves all prop needs, from low-budget projects to major productions. He is the father of five boys, all of whom can actually explain what he does for a living.



Joel Barkow

Founder

Barkode Props

info@barkodeprops.com


Joel has spent 30 plus years in the tv and film industry in New York City. He worked as a prop master and set dresser on dozens of films and television shows. Then he leveraged his deep knowledge of the industry into the creation of a prop rental house that serves all prop needs, from low-budget projects to major productions. He is the father of five boys, all of whom can actually explain what he does for a living.


Q: Whose job is it to greek in local 52? There have been accounts that it lives somewhere between set dressing, props, and scenic. Can you help clear that up?


Well, it's a total crossover. When I was on set, if it was a prop, and I was in the prop department, (I worked in different departments) it was our responsibility. If it was something that was built or modified, it became a group effort between the scenic, set dressing, or property, all heads had to talk to each other.


The whole idea of Barkode was founded on was ease-of-use.

Instagram: @badgreeking

"At Barkode, we like to send everything out as greeked as possible in the most proper way that I learned on set to do not just like a piece of red tape on something but to really take the time."



One thing that always bothered me on set was ungreeked logos from prop rental companies like mine all over the rental. At Barkode, we don't market ourselves on the props, you know, just so the art department doesn't have to deal even more on the set. That's not greeking per se, but just ease-of-use we like to deliver to clients.


If it's a rented Kenwood stereo system, we greek that out nicely and that's how you receive it on set. We may all know it's a Kenwood, but the logo and the greeking aren't glaringly obvious.


Q: Some producers insist on fake money, and then other producers insisting on real money, can you provide some clarity?


I always say go with the fake money whenever you can. In the past, it was always a thing. When I was propping we didn't use real money because serial numbers can be traced and you don't want to have that traceability. When prop money started coming into the fold, it was all very sketchy because the more real it looked, the more legal issue exposure.



"So the money today that I rent clearly states on it "for motion picture use only", but not in a glaring way, it looks really good, but, there's no question it's for theatrical use."



Q: Does greeting a Coke can with a piece of red tape over the "C" actually protect the brand and the filmmaker?


I don't think so. I would go with a fake label.


When product placement was just starting out really big, I was working on Spin City at the time Fiji, water was coming to me asking me to get Fiji water on-screen. The producers wanted all the free Fiji water we could get. Fiji wanted me to put them in the actors' hands. It was network television, though. I would get into their hands but we couldn't show that label.


The actor would work with me so we could see the shape of the bottle. To me that was okay. And the Fiji company seemed to think it was okay, so they gave us a lot of Fiji water.



Instagram: @badgreeking

"I would stay away from that kind of slapped-on greeking, It doesn't look good."









Q: What are the most popular, pre-greeked items that go from Barkode?


Well, we already talked about the fake money - that's a big thing at Barkode. Other popular cleared items orders are for bar scenes, liquor bottles, wine bottles, etc.

Barkode Props Cleared Liquor Bottles


"I make sure that our label graphics pre-cleared and we'll sign the documentation verifying it's cleared and ready to go. "





Mic cubes or press mics that have logos and station identification numbers are all pre-cleared. Magazines are a big one, too I have a set dressing piece that's a newsstand. I stay away from the product of the newsstand, I just give them the shell and I get to let the production deal with dressing it. We just had one where they needed a ton of magazines, and we have those, you know, all pre-cleared.


Q: Do you have paperwork that accompanies the products you rent?


There's blanket language within my equipment lease agreement, but it's there for Stephanie and others lawyers to tweak. <Stephanie laughed!>


Product Placement


Another course is to actually use the real products with their permission. There are all kinds of companies that represent and place brands because these companies opt to have their products used and seen in media to expand their market reach.


Beth Bell, took the model a bit further to elevate brands that have sustainability baked in.


Beth Bell

Founder, Assistant Set Decorator

Green Product Placement

beth@greenproductplacement.com


Beth Bell is an entrepreneur, business consultant, and a long-time IATSE Studio Mechanic, with a career in film and television production that spans decades. As Green Product Placement founder, Beth was inspired with the prospect of being able to use this very powerful and engaging marketing platform to promote products in line with her own personal purchasing ethics and the ethics of a very large, and growing, group of savvy consumers whilst at the same time making it easier for filmmakers, production designers, set decorators, costume designers, and prop people to find geographically correct, socially conscious, and green products for use in their films and television content.


Q: Share with us your Green Product Placement founders story, like what gave you the idea?


Beth:

It's kind of a fun story. I've been working as a union Art Department person since 1990 and then I left and worked for an experiential marketing company as a manager. We did branded entertainment stuff and it was kind of a related field, not really film and television.


In Spring 2011, Morgan Spurlock was promoting his product placement documentary,

Source: lasvegassun.com

The Greatest Movie Ever Sold. I had seen the trailer and I thought it was hilarious and it rings about 65% true. The documentary's premise that all product placement is this paid integration. It's not actually. The most common form of placement is trade-out placement, which I'll explain in a moment.


Morgan posted he'd be on Ted.com answering questions about his new documentary, so I go on over and I thought back to 1998 when

I was the assistant set decorator on Runaway Bride. We were dressing the Curl Up and Dye salon and

my boss, the set decorator said to me and our PA, "I hate all that stinky chemical crap you get from the product placement agencies, see if you can bring in some natural brands?".
Source: simplyorganicbeauty.com


So, we did some brand outreach on our own too, was like, I think it was like Aveda and Kiss my Face or something. In 1998, there weren't as many natural brands as there are now, and there was a need and interest. On the Spurlock chat, I was like 'clackety-clack on the computer, doing the research looking for an agency that was mission-based, only representing better brands. I didn't find much in the back and forth. And Morgan said, "I think you found your next career."


I did an extensive search, and I really didn't find what I knew to be like an Erma Agency, the Entertainment Resources Marketing Association, which is the association of product placement professionals. 85% of the big product placement agencies belong to Erma. I couldn't find any that were specifically, product placement agencies that had an easily accessible client list for productions and that were mission-based, and so I started Green Product Placement (GPP).



Some of the brands represented by Green Product Placement

Beth: (cont'd)

So since then, we've placed over 150+ brands in over 475 Productions in the US, Canada, and the UK. It's always a win with the full understanding that I want production to use as many product placement agencies and direct brand contacts as they absolutely need to dress, prop and costume, their show, I just want GPP to be part of the equation.


Sometimes productions will come to me if they have to dress a Whole Foods type store, something like that. My brands can't provide enough product alone because I am keenly aware of other competing product placement agencies that represent natural brands, but I always encourage the use of better brands, even if, they're not necessarily all from my agency.


Eva:

That's a great way to do business. You collaborate and show good faith to help your client, possibly make a friend of the competitor on the other side, who might reciprocate the recommendation. That comes back to you because your core values are being expressed in a non-competitive way. The mission of green products in media is the goal.


Q: There's a thing called 'intended use' that we hear a lot. Can you talk about your brands and intended use?


Beth:

There's always the language that's built into our agreement that the product should be shown in a positive or neutral light. So you're not going to want to have, to use your example, an alcoholic drinking your product and then crashing a plane. We wouldn't allow that. Initially, when the production or the studio gets a hold of us, maybe between 40 to 50%, of the time I can review the script.


If the product is a hands-on prop, I will usually ask for pages. I usually have to sign an NDA (non-disclosure agreement) to view the pages and review how one of our products is going to be used.

Let's say if it's a snack bar, but that but it's a hands-on prop, and the dialogue says, "This tastes like cardboard". Of course, we'll never approve that. That's when you're better off going to your art department to come up with a fake name of your sawdust-tasting snack bar or just not showing a brand at all.


These brands, whether they're paying an integration fee or not, are doing productions a huge favor by providing all of this free, cleared product just as brands exist in real life, Go and look around your own kitchen or any bodega. So, if we're going to reflect real-life content, and we want to show them in a realistic way, which also includes not portraying an incorrect use for the product, but realistic use of the brand.


Download Green Product Placement's Client list!

GPP-Client-List-12-8-2020
.pdf
PDF • 466KB


Attendee Live Q+A


We asked ArtCube Nation for questions they had for our panelists and the range of queries certainly illustrates the complexities and breadth of clearances.


Cuber Question:

I'm currently dealing with clearing some Mayan spellings for a fiction production. The Mexican copyright law is very new and complicated and all those spellings are in the public domain, we have to ask permission from the Mayan community to show original hieroglyphs so they can make sure we're not damaging any moral rights. Can Stephanie speak to moral rights? And how's it working in the clearance world?


Stephanie:

Moral rights are the rights held by an author. We don't have them in the U.S. Foreign countries do identify moral rights, which are the author's intent. I am not familiar with Mexican copyright law, but one of my best friends worked for the Mexican Copyright Office!

You can get that answer by calling the Mexican Copyright Office the information is available, and you can avail yourself of it. Google is an amazing thing. If you can get to the.gov sites, or.org sites, you're more likely to find trustworthy information, than some YouTube video that somebody put up.

I would imagine that the Mayan is probably a cultural designation and that they are limiting it because of that. If that is the case, and the government has set up a cultural designation for those works, you're going to have to go through the government to get that or go through the Mayan entities specifically to get that permission. I would absolutely talk to the Mexican copyright office, I would imagine they have the same things that we have here, which is a line that you can call. If you can't find it, and you need to talk to somebody who knows that, email me. I can direct you. I happen to know the former registrar of the Mexican copyright office. I can get you to somebody there who can help. That's yet another reason to have an attorney who knows some of this stuff, because it's the access to the information that when you look at it and say, "How could I possibly know this?" There are people who absolutely know this stuff.


Cuber Question:

What constitutes transformative art? Can we take a piece of work, rip it up, and put it back together, and is there a percentage attached to it?


Stephanie:

There has been a body of law that has been decided over the last 10 or 15 years, that sort of lent itself to the argument that if you take a copyrighted work and make substantial changes to it, such that it no longer resembles the original work but has been transformed into some new and newly protectable work, then you are permitted to do so. That is not fair use. Fair use is a defense to infringement. That is a permissible use of a copyright.


However, those of us who represent the rights of the artists and copyright holders have found this series of cases that were decided absolutely abhorrent. Because our understanding has always been that as a copyright holder, you own the right to your copyright, to copy your works, but you also own the right to make derivative works.


What is the derivative work? It is a work that is based upon the original copyrighted works. The case that just came down now that was the right decision that said," Yeah, not so much." There is no percentage on transformative. It is a purely subjective standard that is being applied by the courts. And the Second Circuit finally came down and said, "Yeah, wait, everything isn't transformative".


If you can identify the photograph in the works and all you did was layer some color over it, that isn't transformative. That's taking the original works and using it improperly.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT











Stephanie (cont'd)

My best advice is exactly what Dawn said, you've got to clear everything. Don't rely on, "Oh, we're making a transformative work" especially in a film, trust me, your film is not transformative of any works that you're including in it. It's just not. If there's a poster in the background, that isn't cleared. You have to get clearance for that poster if you can see it, and it's identifiable. You have to know these things. Don't get swept into this, "Well, I'm creating a work of transformative work." There are so many lawyers that don't understand this. Don't jump ahead to try to figure that out. Just try to stay within the parameters of what is being directed by the producers of the work. As Dawn said, they will set the parameters for what is what their risk tolerance will be. Go by that.


Beth:

Again, a Runaway Bride story, I can remember going to a local photo fair with the set decorator we heard about from one of the photographers we were using.


"I literally came out with a stack of clearance forms and we just bought all these works. It was enough to dress Richard Gere's character's apartment, just by going to this photo fair, buying the works from the artists, asking them "Hey, do you mind if we use this in a Julia Roberts movie?"

This is a wonderful, wonderful opportunity to do that and promote these artists without all the headaches.

Photo: cinemacats.com/runaway-bride-1999/

I wanted to throw it out there because we've been talked about trying to chase down descendants. You don't always have to do that.





Eva:

Art for Film is a perfect example of that. They're an ArtCube Nation business member. They rent cleared art and the artists get paid a percentage for their work. You can rent from Art for Film, it's cleared and you're also supporting local artists and isn't that what we want? As a community, we should be supporting them. But sometimes the perfect thing is a Velvet Elvis found at a thrift store.


Cuber Question:

5 years ago, plaids and fabric design was something asked of me to clear. What's the deal now? Do we still have to clear, for example, Scottish family tartans.? What's the deal with clearing fabric?


Dawn:

I would say no, especially a tartan, it is very old anyway. Unless it's something incredibly distinctive, or as I mentioned earlier, if you're using it to wrap up a dead body with or something, for the most part, no.


Eva:

Even Burberry? Is that a good example to clear, because their tartan is so distinctive?


Dawn:

I would say okay with that. Maybe Stephanie thinks differently?


Stephanie:

No, I agree with you, Dawn. Functional items are not protectable, same for patterns per se if they are plaids. Plaids are not protectable. You just can't do it. Designs that are drawn and look like something completely different may very well be protectable. In line with what Dawn just said.


I tell a story about a script that came to me. The client had the script and they asked,

"Can you go through this? Indie Clear went through it and they told me that we have to contact M&M Mars because I'm using a Milky Way in the scene and the murderer is killing someone with the Milky Way by shoving it down their throat. "

Death by Chocolate

I said, "Well, you know, technically, you can use a trademark as long as you're not using it in a trademark sense. So if you're not selling chocolate with the Milky Way logo and mark, then you're really free to use it. However, M&M Mars may take offense to the fact that their product is being used to kill somebody.


That might be one of the situations where you want to reach out, just to make sure so you don't end up in a suit, even though they would probably lose. It's still costly litigation you want to avoid. And that comes down to the what is your risk aversion?


Cuber Question:

Do we need to clear the artwork that we purchased from a big box store like Home Goods or West Elm?


Stephanie:

Yes.


Eva:

Do we start with the artists, not the big box store?


Dawn:

If it depends if you can find the artists, then you go to the artists. Sometimes I've found, [with the retail store], I found a contact and they were able to sign off because it must have been a work-for-hire deal with the artists and the store was able to sign off. But if not, they might be able to give you the artist's name and contact and you can go that way. But yeah, just because that's mass-produced doesn't mean it's not copyright protected.



Eva:

Can you please differentiate between a trademark and copyright?


Stephanie:

A copyright applies to works of original works of authorship, art, think art, think photo photography, sculpture, writing, filming, all of that are artistic creations.


A trademark applies to a name, logo, slogan, etc, which is used to identify the sale of goods and services in commerce. If you're a business and you are using a trademark or logo to identify your goods and services in commerce, you own a trademark.


Could you have a copyright on the logo? You bet. Some logo designs are copyrightable because they are significantly unique such that they would qualify for copyright protection. Some are not. A block-letter written word is not going to be protectable as a copyright. But if it's something flowery or something that has more detail in it, that would be protectable as a copyright.


So, you have owners of copyrights and trademarks, like let's take Walt Disney. They own the copyrights on Mickey Mouse, some Disney's works, by the way, have gone into the public domain, it might be the Steamboat Willie time period, but they continue to create works and continue to register works and then they trademark Mickey Mouse and all the other characters they register them as trademarks because they are then used as the toys and other things so that the look is also registered, so they own both.




"So you have to be careful when you're licensing or getting permission for use in a film, that you're getting all of the rights that are included in that particular thing that you're licensing."









Eva:

A lot of ArtCube members are up-and-coming artists themselves. How can they protect themselves? If asked to borrow work for a film, what kind of questions should they be asking?


Dawn:

Because I reach out to artists, I've probably done it today 15 times already, if somebody like me reaches out to you, I would say, no one is trying to no one's trying to take advantage of you. The production packet and license agreement for every show or movie I've ever been on is basically the same. You don't really need a lawyer to look at it so much. What we're asking for is the right to use your work within the film or television show, they do not have the right to use your work in any other manner. We're not going to go out and make a calendar with it; a release does not give us that right. So don't worry about that, you're safe, you should feel pretty confident about signing a release form.


I don't automatically say, "We want your thing and we want to pay you money". That's not my job. My job is to help the art department. If you want to ask for money, and if you're starting out, you know, if you want to ask for 200 bucks or something like that, I can take that back to the art department, it depends on how badly they want it. But there's something to be said for just getting your stuff out there. But don't be afraid to ask for it. They'll either say yes or no.


<end of panel>


Thank you esteemed panelists, what a wealth of expertise you generously imparted! Thank you to ArtCube Members for attending!

Definitions


Copyright

Copyright is definitive about who owns what work. Copyright applies to works of original works of authorship, art, photography, sculpture, writing, film, all of that are artistic creations.


Trademark

A trademark applies to a name, logo, slogan, etc, which is used to identify the sale of goods and services in commerce.


Public Domain

A work of authorship is in the “public domain” if it is no longer under copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.


Fair Use

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances and defense to infringement on a copyright.


Moral Use

Refers to certain noneconomic rights that are considered personal to an author. Chief among these rights is the right of an author to be credited as the author of their work (the right of attribution) and the right to prevent prejudicial distortions of the work (the right of integrity).


Berne Convention

An international agreement governing copyright mandating that a copyright exists the moment a work is "fixed" to any medium.


Tangible Medium of Expression

A work reduced to some concrete form, such as when it is written on a piece of paper, recorded on an audiotape or videotape, or stored on a computer disk or hard drive.


Statutory Damages

A damage award in civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine a precise value of the loss suffered by the victim.

Helpful Links


Clearance Search

Copyright search

Copyright office

Music rights search

Google Image Search

Ancestry.com


Cleared Art Rentals

Art for Film

Newel Props Cleared Art


Cleared Labels + Graphics

Leah Spenser

Agit Props

Underground Signs

Tom Chalky


Product Placement Resources

Association of Entertainment Marketing Professionals (ERMA)


Public Domain Resources + Royalty-Free Images

Public Domain Sherpa

Metropolitan Museum of Art Open Access

Dreamstime


Register your original works


Downloads

Basic clearance agreement (Coming soon!)

Likeness clearance (Coming soon!)


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Please email eva@artcubenation.com to request future panels, or add your services or your favorite sources to this article. It's an evolving document and we'd love your input!