Chapter 15
Clearances and Releases
INTRODUCTION
When young people think about getting into this industry, they imagine the excitement, the creativity, the highprofile talent they’re going to meet, the places they might get to travel to. No one thinks about all the legal matters they’re going to be confronted with. Few realize how many people they’re going to have to get consents from, how many contracts and agreements they’re going to have to get signed, how much has to be researched, negotiated and paid before they shoot one frame of film. And all that red tape definitely takes some of the sheen off of the glitz. Having to obtain clearances is one of those things that you can’t fully appreciate until you’re in the thick of it.
Obtaining clearances is the process of securing permission to use someone’s likeness, a name, logo, photograph, product, premises, publication, film clip, work of art, stock footage, music or song in your film; and in many instances, in exchange for a fee. Fictitious names, products, businesses, organizations, logos, signs and publications also have to be cleared to make sure they don’t already exist, aren’t protected or aren’t too similar to the real thing. Permission to use stock footage and music is granted through a license. Other clearances are secured with signed release forms, each designed to grant permission for the use of a particular element (likeness, name, logo, photo, product, etc.).
Both your insurance agency and attorney will request that you have your script researched and a clearance report (also known as a research report) done. And your distributor will require copies of all fully executed license agreements and clearance forms before releasing the picture. Whether the report is done in-house or by an outside company, having one done and then clearing everything that needs to be cleared will fulfill your Errors and Omissions insurance requirement — not to mention settle any legal exposure that may exist in your script.
When a script is sent in for research, you’ll get back an itemized list of elements with notations indicating what needs to be cleared and what’s okay to use. You may decide to change a name, logo, a poster, a piece of stock footage, etc. to avoid having to go through the clearance or licensing process on items not cleared for use.
Studios and networks tend to have their own in-house clearance departments, but even on studio shows, some productions will retain the services of an outside clearance person or company if the script warrants it. A show that uses a lot of film clips may hire at least one clearance person (who specializes film clip clearances) to work on staff. On independent features, it’s not uncommon for someone on the production staff to handle clearances. When that’s the case, however, project attorneys or the production company’s legal affairs department should review all clearance matters as well as handle the complicated ones. When it comes to music clearances, they’re generally handled by an in-house music department or through a music clearance service.
An outside clearance person would let you know when there’s a fee involved and would get your approval before proceeding with the necessary paperwork. He or she will know who to contact to secure the releases and licenses, will often make recommendations on alternative elements, will negotiate fees for you and keep you updated as to when clearances and licenses have been finalized. This person will also often watch dailies and/or screen rough cuts to make sure that everything’s been covered. In the whole scheme of things, if you need the extra help and you balance the time and money it would take to hire that extra person or service with what it could cost you if something isn’t cleared or licensed properly — potentially becoming a huge legal headache for you down the line, I’d go with the experienced clearance person (as long as your budget can accommodate the cost).
Clearances need to start as soon during pre-production as is possible to make sure that all items in question are approved for use before they end up in front of a camera or used in the picture. The production also needs enough time to accommodate changes to elements that haven’t been approved or cost too much to clear/license. Scripts should be submitted for research as soon as a final shooting draft is ready. On some shows, clearances continue right into principal photography as change pages come in and as new props, set dressing, wardrobe, locations, music and graphics are proposed. The trick is to stay one step ahead of the camera.
In the world of clearances, it’s easy for something seemingly innocent to fall between the cracks. I was on a show once, and the set dressers (who probably should have known better) had tucked a stuffed Mickey Mouse into the corner of a little boy’s room amid a grouping ofother toys and stuffed animals. But if someone hadn’t caught it in time, we would have had to reshoot the scene, because Mickey is licensed by Disney, and they wouldn’t let us use it — even though it wasn’t a key prop, wasn’t even on the boy’s bed and was just sitting in the background. Then just recently, someone called to ask me if I thought she could use an old poster she had found at a thrift shop. The problem was, it was a poster of a Marc Chagall painting, and even though Chagall has been dead for several years, his works are still copyrighted. So it’s always best to have someone who knows what they’re doing handle the clearances for you, because sometimes, mistakes aren’t caught in time, and they can really get ugly as in costly lawsuits and/or insurance claims.
If you’re doing routine clearances on your own, the release forms found in this chapter can be used for this purpose. If you need a form that isn’t here, your project attorney or legal affairs department can prepare one for you. Again, even though they’ve all been approved by an attorney, have your own attorney look them over before you use them.
WHAT NEEDS TO BE CLEARED
The following are some rules pertaining to clearances.
Likeness
The right of publicity varies from state to state, but almost every state protects individuals from the unauthorized exploitation of their identity. It prevents the unauthorized commercial use of an individual’s likeness or other recognizable aspects of one’s persona and grants an individual the exclusive right to license the use of their identity for commercial promotion. Permission to use a performer’s likeness is incorporated into his or her SAG contract, and background players grant permission by signing a voucher. Occasionally, people who aren’t extras are filmed as “background” or “atmosphere.” This may occur when the director decides that although there were no extras planned for the day, some people added to the background would make a scene more complete. It may also occur when the director doesn’t have enough extras, and on a spur-of-the-moment decision, people walking down a street are recruited to participate in a scene. In this situation, each person filmed as background (whether being paid for their appearance or not) should sign a Personal Release, or, if there are several people, a Group Release would be appropriate.
Crowd Notice
When a large group of people are recruited for an audience that will be filmed, post signs in easy-to-read locations stating that their presence as a member of the audience constitutes their permission for the production company to use their likeness. The same would apply to shooting a street scene within a confined locale or when filming in a specific area such as a shopping mall. Signs would be posted indicating that filming is taking place, people entering the area may appear in the picture, and by entering the area, they grant permission to the production company to use their likeness. (Exact wording for these signs is included later in this chapter.) Clearance wouldn’t be required if the passersby being filmed are an incidental part of the background or if they won’t be recognizable in the picture.
Locations
Permission to use a premises or property as a shooting location is obtained when the owner of the property signs a release form called a Location Agreement. If you shoot at a certain location and wish to use a fictitious name for the property, this must also be included in the location agreement.
Name
If a fictitious character shares a common name with an actual person (living or dead) in the location where the picture is set or photographed, an alternate clear name should be used in place of that name. Generally, the names of actual persons should not be used. Public figures may be referenced, providing such references aren’t derogatory. And caution must be taken with the names of characters who are thinly disguised depictions of actual persons, as they may be identifiable by their association with other characters or by the geographical setting of the picture.
Names of Actual Businesses or Organizations
A dialogue reference to an actual business or organization may require clearance, depending on the context. The use of the actual name of a business, organization, building, etc. that’s a shooting location is permissible, providing the location agreement grants the right to use such name. If the name of a business, organization or building is featured in your film but isn’t used as a shooting location, then permission for Use of Name or Use of Trademark or Logo is necessary.
Telephone Numbers
Because it’s difficult to clear references to identifiable phone numbers, you’ll have noticed that features and TV shows use phone numbers that begin with the prefix 555. Note, however, that not just any 555 number can be used. Only 555-0100 through 0199 are reserved for fictitious use.
License Plates
As it’s also difficult to clear identifiable license plates, prop houses will manufacture fictitious plates for you.
Depiction of Public Authorities
Clearance is required for the portrayal of police officers, firemen, prison guards and other public authorities of identifiable departments or locations, regardless of whether uniforms are used. Wardrobe and prop departments will supply generic uniforms and related paraphernalia if clearances can’t be obtained.
Street Addresses
Referencing or identifying an actual street address must be cleared.
Depiction of Actual Products
A depiction or dialogue reference to an actual product doesn’t have to be cleared if the depiction or reference is incidental and not derogatory. Featuring a product or service trademark or logo does, however, does require a clearance. A Use of Trademark or Logo release form would be appropriate in this situation.
Posters and Paintings
Posters and paintings that portray real people (dead or alive) need to be cleared by both the copyright holder and the person portrayed. Posters or paintings you’re not sure about, even those picked up at flea markets or thrift shops, often need to be cleared for use. If you have a piece of artwork you’re not sure about, and you’re doing your own clearances, I suggest you contact Artists Right Society (www.arsny.com). ARS is a copyright, licensing and monitoring organization for visual arts in the United States. They also represent foreign artists who are members of affiliated arts organizations abroad. If they don’t represent the artist of the piece you want to clear, they’ll point you in the right direction.
Publications
It’s permissible to use actual publications as incidental background set dressing. But when it comes to featured use, such as a close-up of the publication, depiction of someone reading and/or quoting from or referring to an actual publication or attributing a fictitious article or headline to an actual publication, clearance may be necessary.
Currency
Real currency may be used in motion pictures as a prop; however, single shots, full close-ups and still photography of real currency isn’t permitted.
Web Addresses
You shouldn’t use a web address unless you purchase the rights to its domain name.
Music
See Chapter 16.
PRODUCT PLACEMENT
You don’t have to be in the entertainment industry to be aware of product placement — brand named products and services that appear in films, TV programs, music videos, web-based shows and video games. Product integration is another term we hear a lot of, which refers to products and services that actually become part of a show — things that are used, consumed, worn and/or mentioned by a main character.
Product placement and integration is most effective when it creates a natural environment by featuring products and services in situations where they would normally appear. Depending on the film and the portrayal, it’s a great way for companies to receive very broad exposure and create consumer awareness for their brands.
Product placement/integration is big business. Some of the major studios have their own Product Placement departments, and there are many companies and promotional agencies that do nothing but place products in films. Some productions will hire a product placement coordinator to supervise the entire operation and others will work directly with a product placement company or marketing house. These types of firms have expanded to include online services that match products to relevant productions and others that specialize in helping entrepreneurs secure exposure in films and TV shows. On smaller, independent shows, producers and department heads (i.e., property masters, costume supervisors and transportation coordinators) often handle their own product placement rather than pay a fee or salary to someone else to do it for them. I’d like to advise, however, that when this is the case, that only a limited number of people on your crew be allowed to interact with product placement/ marketing houses. And before any arrangement is made for products or services, the producer, production executive and/or project attorney should be consulted.
Generally speaking, there are more regulations pertaining to the use of product placement in television than there are in features, although that doesn’t mean that fewer products appear in television shows. But due to laws governing “payola,” it’s a crime for anyone connected with a production to accept anything of value (money, goods, services) in return for the placement of or reference to a product or service in a television show, unless there’s a disclosure at the end of the show (such as “Promotional consideration provided by…”).
Aside from payola considerations, most studios, networks and production companies impose their own guidelines pertaining to product placement. The majority strive to maintain a realistic portrayal of their subject matter without emphasizing products in a way that might be construed as advertising or sponsorship. Production personnel and/or cast aren’t allowed to accept gifts from companies that want to have their products used on a show, and no one associated with a production can promise that a product will be referred to on that show or that talent will endorse a specific product or brand.
From a marketing perspective, companies look for every opportunity to integrate their products into various forms of entertainment media — many, more apt to get involved with high-profile projects and prominent or upand-coming talent. And on the other side of the spectrum, there are those that will stay clear of scripts they consider offensive. A good product placement coordinator or rep will know which companies are open to what type of projects and will come to the table with established corporate relationships. This person will interface with the producers, production designer and other department heads as well as the studio’s creative executives; production executives; and the marketing, publicity and legal departments. The job requires a heavy coordination and supervision of product placement deals from proposal stage through the release of the picture, as well as preparation and follow-through of all legal agreements.
Product placement coordinators (whether part of the crew, from the studio or from an independent company), after reading a script, will do a scene-by-scene breakdown of every opportunity to feature a product. They look for what the main characters wear, drive, eat, talk about, touch, hold and refer to by name. Special note is also taken of the locations where important scenes take place. In addition to traditional products, other items such as shopping bags, billboards, boxes, storefronts, bus signs and radio and television commercials can also provide excellent avenues for exposure.
As the process of negotiating for and acquiring goods and services can be lengthy, a product placement meeting should be scheduled as early in pre-production as possible — as soon as key department heads are on board. At this time, the product placement coordinator gets together with the production executives, producer(s), director, production designer, costume designer, transportation coordinator, property master and set decorator to determine their vision and their specific needs for products in the film. In fact, the costume designer, transportation coordinator, prop master and set decorator should come to the meeting with “wish” lists in hand. This meeting is also the time to discuss any concerns regarding negative use or references to products in the script in the hope that some of the issues can be resolved. A subsequent meeting or two should be held as time permits to discuss prospective placement deals.
If a product is featured in a film and/or associated with a major star, it provides very valuable exposure for the manufacturer. In exchange for this placement, the product placement coordinator would negotiate a contribution of either product, an end credit in the film or possibly a placement fee. In some cases, a prominent exposure will lead to a company executing a tie-in promotion with the release of the film. Funds generated from product placement aren’t typically used to offset production costs. Once collected, these fees usually go against the negative cost of the picture and aren’t received until the film has been released theatrically.
It’s very important to record the quantity, type and value of all materials provided for each film for purposes of inventory control; and product placement items should be kept as segregated and securely stored as possible, as well as be accounted for at the end of the show and returned after the show is finished using them. These details need to be managed carefully, as the production is often billed for unreturned items.
During filming, it’s a good idea to have photos taken of as many products on the set as possible. These stills are presented to each company for internal purposes. They’re not intended for publication or to serve as proof of exposure, and a release form should be signed prior to the company receiving any photographs. Often, after the release of a film, manufacturers will request a clip of the scene(s) in which a their products appeared. The clip is also for internal use only, and unless preauthorized, a release form must be signed by the company to prevent the clip from being used for publicity purposes.
The value of product placement exposure can be evaluated on several levels: amount of screen time, box office revenue, hands-on exposure, verbal exposure and the impression of the viewer. In addition to the exposure generated by the initial release of a film, you’ve also got releases in foreign territories, domestic and international DVD sales, cable, pay-per-view markets and cable television. Product placement in a film now leads to worldwide exposure, so any costs associated with the placement are minimal considering the number of impressions that are generated. This exposure is particularly effective when a company is launching a new product and the release of the film coincides with the product introduction in the marketplace.
A full report should be compiled summarizing all product placement deals, and all deals should be reflected on a Product Placement Release form (see the end of the chapter).
GUIDELINES FOR THE USE OF CLIPS, STILLS AND NEWS FOOTAGE IN MULTIMEDIA PROGRAMS
The following information was provided by Suzy Vaughan, formerly CEO of Suzy Vaughan Associates and currently CEO of Clearance Unlimited. Suzy is an attorney with many years of clearance experience. Her firm provides clearance services for producers who are doing programs that require the use of excerpts from other projects.
Literary Works
Literary works, which include books, films, television programs, art works and still photos, among other things, must be licensed from their owners. This is because the Copyright Act gives creators of literary works the right to sell or license these works and to make money from them for the period of the copyright.
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 this 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 later 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’s 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’s considered literary 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
News organizations can license the footage they’ve shot at press conferences to other entities. However, they can only license the copyright. They can’t give the licensee rights to the appearances of people who appear in the clips, including the anchor people, the news reporters and ordinary people who are interviewed on the show. Use of these names and likenesses will require additional clearances (discussed further later).
Film Clips
Any excerpt from a feature film must be licensed from the copyright holder, and payment for use of the clips must be negotiated. Most studios charge a fee on the basis of a minute or fraction thereof. Most of them will not license footage on an aggregate basis but will base their fees on a per clip, per cut or per minute basis.
The cost per clip depends on the rights required. It’s more expensive to license all rights in perpetuity than it is to license five years of worldwide distribution, assuming that a studio would grant you perpetuity. Many studios are currently putting together their own multimedia divisions and therefore refuse to license material for other platforms. Studios rarely grant permission to use clips in advertising and promotion, even when the producer offers substantial fees for the 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’s important to determine up front if that studio has reciprocal deals in place that might apply to your project.
Most studios don’t function in the same fashion as stock footage houses, which will frequently give you a lower rate if you license more material. The studios generally have an attitude that they aren’t a stock footage house and carefully monitor who’s using their footage and how it’s being used. If you’re using the footage in a pejorative fashion, the studios won’t license it to you. Occasionally, certain studios will give you a price break if you want to use five 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’s no rule that says you can use five seconds for free. That five seconds will cost the same as one minute. Therefore, it behooves you to use the entire scene you’ve licensed, rather than using two-second clips from six scenes. Studio contracts also stipulate that you may not edit scenes within a film clip. Although an interview that cuts from the interview to the clip and back again is a form of editing, the studios don’t generally consider this a problem. The licensing agreements the studios send you to sign are rarely negotiable and are very stringent, demanding concessions from end credits to a guarantee that you’ll clear all the talent and music used in the clip as well as an agreement that you’ll indemnify them against any claim that may arise as a result of the broadcast of the clip.
Television Clips
Television clips are owned by studios, independent production companies and TV networks, and are handled in the same fashion as described earlier with regard to film clips from feature films. Currently, all licensors are very concerned about usage of their material in interactive projects, fearing that the images will be manipulated and altered to the point that they’re no longer recognizable. As they won’t allow this to happen, the word interactive in any letter requesting permission to license clips may elicit an immediate “no,” unless you can convincingly explain that the material will not be changed.
Still Photos
Still photos fall into several categories.
• Publicity photos (star headshots) have traditionally not been copyrighted, and because they’re disseminated to the public, they’re generally considered public domain.However, still shots taken for a particular film or tele vision program could possibly have a copyright. Under these circumstances, the owner of the copyright would most likely be the film or television company that produced the program
• Production stills (photos taken on the set of a film or TV show during principal photography) must be cleared with the studio and can cost anywhere between $150 and $500.
• Lobby cards (film posters) are generally lumped into the same category as publicity photos and may not require clearance, but some do, so it’s always better to check.
• Paparazzi photos must be cleared with the photographer.If not cleared, you risk a lawsuit and the possibility of the photographer showing up to demand much more money than he would have charged had you gone to him in the first place.
• Still photo houses will generally license photos they own the rights to for $100 to $500 and up.
Samples of still photo releases are included in thischapter, both for the copyright owner of the photo and for the person(s) appearing in the photo.
Public Domain Films and Stills
Generally, a film or still is protected by copyright if it’s less than 95 years old. A work of art obtains a copyright as an unpublished work as soon as it’s “fixed in a tangible medium of expression.” If that work of art wasn’t registered for copyright or doesn’t have a notice of copyright on it and it’s then published (which is accomplished by distribution to the public), it loses its unpublished copyright status and falls into the public domain. Once it’s in the public domain, it can be reused by anyone without fear of copyright infringement, because the copyright no longer exists. Since 1976, however, the fact that a television program may not have a visible copyright notice on it doesn’t indicate that it’s public domain, as 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. This applies to all works prior to 1988.
In 1988, the United States 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 required. A program is copyrighted regardless of whether 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, as there are benefits to doing so with regard to lawsuits that arise out of the Copyright Act itself.
Trailers
Under the 1976 Copyright Act, all works of art, including trailers, are copyrighted as soon as they are. Since the U.S. joined the Berne Convention in 1988, no formalities (such as copyright registration with the copyright Office or a copyright notice) are required to maintain one’s copyright. However, in order to be able to make use of the various remedies found in the U.S. Copyright Act, such as infringement damages, injunctive relief, etc., it’s important to register your work with the Copyright Office and to place a copyright notice with the date on it. Therefore, trailers after 1976 will be copyrighted and will require permission for usage from the copyright holder regardless of whether they have a copyright notice or are registered with the Copyright Office.
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 was immediately 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 two 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 doesn’t mean that work isn’t 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 28th year, the owner of the copyright had to renew the copyright. If he didn’t, 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 two ways for a work to go into the public domain: either (1) 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 didn’t 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, because it didn’t 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’s 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, as the Constitution has granted copyright holders rights to their works in order that they may prosper. Generally, publication isn’t 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. Not too many years back, the Martin Luther King, Jr., 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 that 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, as under SAG rules, theatrical feature films prior to 1960 don’t require residuals to be paid to actors, writers and directors when the entire film is broadcast.
Consequently, writers and directors in clips and trailers don’t have to be paid, and actors don’t have to be cleared or paid as long as the trailer clearly identifies the film on screen over the clip as it’s played or it’s identified verbally. This information isn’t contained in the SAG Code Book, but can be obtained from a SAG representative via a telephone call.
Talent Clearance
News Footage
Public Figures in News Footage
• Right of privacy: Under U.S. law, an individual has the 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. One becomes a public figure 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 that gives him a news significance. Consent isn’t required of a public figure whose likeness appears in news footage, and that 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 for which they weren’t contracted but appeared in public voluntarily. They’re aware that by appearing at an event such as a press conference, they give permission for use of their appearances in the footage anywhere it might appear. This situation also applies to newsreels that ran in movie theaters in the forties and fifties and are very obviously news.
• Public Figures in News Television Programs (interviewers, interviewees): Public figures who appear in news programs must be cleared, because these programs were produced under a union 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.
• Deceased Persons and the Right of Publicity: A deceased person has no right of privacy. The right is triggered only when a person’s image is used to sell or endorse products in print ads and commercials and doesn’t generally apply to feature films or television programs, since they tell a story or disseminate information and don’t sell a product. Music videos are a borderline situation, as they’re created as tools to sell records and are occasionally considered to be musical commercials. However, the unions do require consent to be obtained from a deceased person’s estate when requesting use of that person’s likenesses in film clips for multimedia projects, television programs, etc.
• Actors: The Screen Actors Guild agreement specifies that 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 scale payment if they choose. Extras don’t have to be cleared or paid. SAG also provides that if consent from an actor isn’t obtained prior to broadcast of the clip, the fine for violation of this regulation will be three times what the actor made the day he worked on that scene.
• Stunt Performers: Obtaining clearances from stunt performers can be a challenging objective. First of all, the identification of specific stunt players may be difficult without the help of the stunt coordinator who hired them to appear in the picture to begin with. Locating the stunt coordinator and hoping he or she is available to help you is another matter. Clearances on stunt players could also get quite expensive, because the clip you want may feature one action sequence in which several stunt performers worked. In addition, many studios are leery of claims and refuse to license footage in which stunt performers appear. Recently, SAG changed the rules slightly to allow producers to find and pay stunt players during and after the project is completed, and no negotiations are necessary with regard to fees. Stunt performers must accept SAG scale, and violations are no longer levied for late clearances.
• Pre-1960 Theatrical Feature Films: Prior to 1960, there was no provision in the SAG agreement granting actors residuals for their performances in feature films. Therefore, actors appearing in a clip from a film made prior to 1960 didn’t require clearance or payment. The guild recently revised this to require clearance of and payment for the use of clips, 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, making montages impossible to do without clearing all the talent. This rule also applies to stunt performers.
• SAG Waivers: Permission not to have to clear and pay actors is very difficult to obtain from SAG. Waivers may only be granted when there is a special reason, such as profits from the show going to charity. Only stars can be asked to waive. You would still be required to gain consent and pay union scale to nonstars.
• Agent’s Fees: Agents are not allowed to take commission on scale payments. Therefore, when contacting an agent to obtain permission to use his client’s performance in a clip, it’s customary to offer a 10 percent agency commission over and above the scale payment you’re offering to the actor.
• You can’t buy out an actor for the use of clips. Each additional run requires an additional payment to the actors, with payment for the second run at 100 percent and then 75 percent, on down. If, however, you’ve 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.
Television Programs
AFTRA used to put major emphasis on obtaining current consent from talent appearing in television programs, and there was no timeframe cutoff. They had to be cleared back “to the dawn of time,” which in television is approximately 1948. Many producers assume that the pre-1960 rule applies, but it doesn’t. However, many negotiations with producers produced changes in these rules. Currently, if your program is less than 75 percent clips (meaning 74 percent clips and 26 percent new material), you don’t have to obtain consent from the performers, you only have to 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 SAG rules, as listed earlier. AFTRA’S payment schedules are more complicated than SAG’S, in that there’s a separate scale payment for a half-hour show, an hour show, a 90-minute show, etc. There are also different rates for specialty acts, under five lines and special business. Dancers and singers must also be cleared and paid. You don’t even have to be able to see a dancer’s face, just his or her body. Once again, extras don’t require clearance or payment. However, determining who’s an extra can be tricky, because it doesn’t depend on whether they speak, but how they were hired on the show. The worst-case cost for AFTRA comes in the supplemental market area, where they generally require that you approach the performers for a waiver, as 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 don’t obtain waivers and simply pay single scale to all performers. These are considerations decided on a case-by-case basis.
AFTRA has an advantage over SAG, because there are no triple damage penalties. Each rerun of a show featuring AFTRA performers requires an additional payment, with the second run at 75 percent on down. Furthermore, as of January 2009, a number of studios (fearing a SAG strike) started signing actors in primetime sitcoms and dramas to AFTRA contracts, so there are many clips you no longer have to clear through SAG but can make AFTRA payments instead. (You’ll find a talent release for use of a performer’s name and likeness in a film or TV clip at the back of this chapter.)
Directors and Writers Payments
• Rates: The Directors Guild and the Writers Guild have schedules of payments required each time clips are used in a multimedia program, film or television show. There are separate schedules depending on whether the clip came from a feature film or a television show. Fees for use of feature film clips break at a 30-second rate, while fees for television clips are much more expensive, changing rates at a 10-second cutoff. Payment schedules can be obtained from the guilds.
• Waivers: These guilds don’t grant waivers, except for such things as the Oscars and the Emmys.
• One-Time Only: Payments made to the Directors and Writers Guilds for use of clips are one-time only. There’s no second payment when the show reruns or is distributed on DVD.
• Schedules: A producer is required to keep track of the film or television programs in which the clips appear, the writers and directors involved with each and the amount of time used for each. This information is then submitted with a check to the appropriate guild. Episode titles are required for television shows by the Writers Guild. The guilds, in turn, issue checks to their members. DGA charges a 14 percent pension and welfare fee on top of the clip fee; WGA doesn’t charge for pension and welfare.
• Compilation Rate: If a producer is producing a program that’s an anniversary show or “Best of” show, 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, as it’s much more than the per-clip use rate would be. There are also several versions depending on the union: the daytime rate, the prime-time rate, the variety rate. The rate is arrived at by multiplying the standard writer rate times 250 percent 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 unions can divide up the payment you make among the various writers and directors. The only time you would benefit from the compilation rate is when you’re using many short television clips. If your program is comprised of many different elements, then a clip rate is much more economical.
DISTRIBUTION OF RELEASE FORMS
Copies of fully executed release forms should be given to:
1. The person who signs the release
2. The production coordinator (for the files)
3. The production accountant (when a payment is involved)
4. Assistant directors should receive copies of fully executed Location Agreements to have on the set with them at each location.
The original release should be given to your production executive to be stored in permanent company files.
My sincere thanks to Peter L. Kaufman of the Kaufman Entertainment Law Group (www.ebizlegal.com) for the many hours he put into updating and enhancing all of the releases and agreements in this chapter. And thanks again to Suzy Vaughan for her help. For more information on the clearance services provided by Clearance Unlimited, you can contact them at: (818) 988-5599 or visit their website at: www.suzyvaughan.com.
FORMS IN THIS CHAPTER
Note that only the Personal Release comes in two versions — one for those who are willing to appear on camera for free, and the other for those who are paid. The remainder of the release forms grant a variety of rights “for good and valuable consideration,” which means for free. If you need to alter one of these releases to fit a payment situation, change: “For good and valuable consideration” to “In consideration of the payment of the sum of $_____ and other good and valuable consideration …” Also make sure that there’s a line at the bottom of the page for the person signing the release to include his or her Social Security or federal tax I.D. number. Other than that, they’re the same.
The following release forms cover a broad range of clearances, but you’ll occasionally run into a situation where a clearance is needed for something not covered in this chapter. Whether it’s getting approval for the use of one of these forms or having a new one created, always check with your project attorney first.
• Personal Release
• Personal Release — Payment
• Group Release
• Use of Name
• Use of Trademark or Logo
• Use of Literary Material
• Use of Art Work (release from copyrighted owner)
• Use of Still Photograph(s) (release from copyrightedowner)
• Use of Still Photograph(s) (release from persondepicted in photo)
• Use of Poster (release from copyrighted owner)
• Crowd Notice — Release (to be enlarged to poster size and placed in several clearly visible locations in the studio in which filming or taping is taking place. Make sure to film the posters in their locations as part of the “B” roll footage and retain as part of the legal records.)
• Crowd Notice — Release (to be enlarged to poster size and placed in several clearly visible locations in the “area” in which filming or taping is taking place. Make sure to film the posters as well as part of the “B” roll footage and retain as part of the legal records.)
• Supplying a Film/Tape Clip of Your Show for Promotional Purposes
• Product Placement Release — this is a very basic release form that allows for the company providing products or services to receive screen credit in the end titles of the show. For product placement deals that entail contributions of product, a placement fee or tie-in promotion, your studio product placement executive or project attorney will prepare a comprehensive agreement more appropriate to the transaction.
• Film/Tape Footage Release
• Talent/Use of Name & Likeness in a Film or TV Clip
• Request for DVD
PERSONAL RELEASE
| Picture Title:____________________________________ | |
| Prod. Company:_________________________________ | |
| Address:_______________________________________ | |
________________________________________ | Date:_______________________ |
Ladies and Gentlemen:
For good and valuable consideration, receipt and suffiency of which is hereby acknowledged, I, the undersigned, hereby grant permission to [NAME OF PRODUCTION ENTITY] (“Producer”) to photograph and to record my voice, performances, poses, acts, plays and appearances, and use my picture, photograph, silhouette and other reproductions of my physical likeness and sound as part of the [TYPE OF PRODUCTION] tentatively entitled [TITLE OF PICTURE] (the “Picture”) and the unlimited distribution, advertising, promotion, exhibition and exploitation of the Picture by any method or device now known or hereafter devised in which the same may be used, and/or incorporated and/or exhibited and/or exploited. I understand that I may not enjoin any exploitation of the Picture as provided above.
I agree that I will not assert or maintain against you, your successors, assigns and licensees, any claim, action, suit or demand of any kind or nature whatsoever, including but not limited to, those grounded upon invasion of privacy, rights of publicity or other civil rights, or for any other reason in connection with your authorized use of my physical likeness and sound in the Picture as herein provided. I hereby release you, your successors, assigns and licensees, and each of them, from and against any and all claims, liabilities, demands, actions, causes of action(s), costs and expenses whatsoever, at law or in equity, known or unknown, anticipated or unanticipated, which I ever had, now have, or may, shall or hereafter have by reason, matter, cause or thing arising out of your use as herein provided.
I affirm that neither I, nor anyone acting for me, gave or agreed to give anything of value to any of your employees or any representative of any television network, motion picture studio or production entity for arranging my appearance on the Picture.
I have read the foregoing and fully understand the meaning and effect thereof and, intending to be legally
PERSONAL RELEASE — PAYMENT
| Picture Title:____________________________________ | |
| Prod. Company:_________________________________ | |
| Address:_______________________________________ | |
________________________________________ | Date:_______________________ |
Ladies and Gentlemen:
In consideration of payment to me of the sum of $[AMOUNT TO BE PAID], receipt of which is hereby acknowledged, I, undersigned, hereby grant permission to [NAME OF PRODUCTION ENTITY] to photograph me and to record my voice, performances, poses, acts, plays and appearances, and use my picture, photograph, silhouette and other reproductions of my physical likeness and sound as part of the [TYPE OF PRODUCTION] tentatively entitled [TITLE OF PICTURE] (the “Picture”) and the unlimited distribution, advertising, promotion, exhibition and exploitation of the Picture by any method or device now known or hereafter devised in which the same may be used, and/or incorporated and/or exhibited and/or exploited. I understand that I may not enjoin any exploitation of the Picture as provided above.
I agree that I will not assert or maintain against you, your successors, assigns and licensees, any claim, action, suit or demand of any kind or nature whatsoever, including but not limited to, those grounded upon invasion of privacy, rights of publicity or other civil rights, or for any other reason in connection with your authorized use of my physical likeness and sound in the Picture as herein provided. I hereby release you, your successors, assigns and licensees, and each of them, from and against any and all claims, liabilities, demands, actions, causes of action(s), costs and expenses whatsoever, at law or in equity, known or unknown, anticipated or unanticipated, which I ever had, now have, or may, shall or hereafter have by reason, matter, cause or thing arising out of your use as herein provided.
I affirm that neither I, nor anyone acting for me, gave or agreed to give anything of value to any of your employees or any representative of any television network, motion picture studio or production entity for arranging my appearance on the Picture.
I have read the foregoing and fully understand the meaning and effect thereof and, intending to be legally bound, I have signed this release.
GROUP RELEASE
| Picture Title:____________________________________ | |
| Prod. Company:_________________________________ | |
| Address:_______________________________________ | |
________________________________________ | Date:_______________________ |
Ladies and Gentlemen:
I, the undersigned, hereby grant permission to [NAME OF PRODUCTION ENTITY] (“Producer’) to photograph me and to record my voice, performances, poses, acts, plays and appearances, and use my picture, photograph, silhouette and other reproductions of my physical likeness and sound as part of the [TYPE OF PRODUCTION] tentatively entitled [TITLE OF PICTURE] (the “Picture”) and the unlimited distribution, advertising, promotion, exhibition and exploitation of the Picture by any method or device now known or hereafter devised in which the same may be used, and/or incorporated and/or exhibited and/or exploited. I understand that I may not enjoin any exploitation of the Picture as provided above.
I agree that I will not assert or maintain against you, your successors, assigns and licensees, any claim, action, suit or demand of any kind or nature whatsoever, including but not limited to, those grounded upon invasion of privacy, rights of publicity or other civil rights, or for any other reason in connection with you authorized use of my physical likeness and sound in the Picture as herein provided. I hereby release you, your successors, assigns and licensees, and each of them, from and against any and all claims, liabilities, demands, actions, causes of action(s), costs and expenses whatsoever, at law or in equity, known or unknown, anticipated or unanticipated, which I ever had, now have, or may, shall or hereafter have by reason, matter, cause or thing arising out of your use as herein provided.
I affirm that neither I, nor anyone acting for me, gave or agreed to give anything of value to any of your employees or any representative of any television network, motion picture studio or production entity for arranging my appearance on the Picture.
I have read the foregoing and fully understand the meaning and effect thereof and, intending to be legally bound, I have signed this release.
USE OF NAME
| Picture Title:____________________________________ | |
| Prod. Company:_________________________________ | |
| Address:_______________________________________ | |
________________________________________ | Date:_______________________ |
Ladies and Gentlemen:
For good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, I, the undersigned grant permission to [NAME OF PRODUCTION ENTITY] (“Producer”) and its successors, assigns, distributees and licensees forever, throughout the universe, the sole, exclusive and unconditional right and license to use, simulate and portray my name to such extent and in such manner as you in your sole discretion may elect, in or in connection with your [TYPE OF PRODUCTION tentatively entitled [TITLE OF PICTURE] (the “Picture”) including reissues, remakes of and sequels to any such production, prepared by you or any successor to your interest therein, together with the right to publish synopses thereof, and to advertise, exploit, present, release, distribute, exhibit and/or otherwise utilize said productions and publications throughout the world.
I hereby release Producer, its successors, assigns, distributees and licensees from any and all claims and demands arising out of or in connection with such use including, without limitation, any and all claims for invasion of privacy, infringement of your right of publicity, defamation (including libel and slander) and any other personal and/or property rights.
If there is a dispute between the parties, the undersigned’s remedies will be limited to an action at law for money damages and in no event will the undersigned have the right to seek injunctive or equitable relief or to otherwise enjoin the production distribution, marketing or exploitation of the Picture.
In granting of the foregoing rights and licenses, I acknowledge that I have not been induced so to do by any representative or assurance by you or on your behalf relative to the manner in which any of the rights or licenses granted hereunder may be exercised; and I agree that you are under no obligation to exercise any of the rights or licenses granted hereunder.
USE OF TRADEMARK OR LOGO
| Picture Title:____________________________________ | |
| Prod. Company:_________________________________ | |
| Address:_______________________________________ | |
________________________________________ | Date:_______________________ |
Ladies and Gentlemen:
For good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the undersigned hereby grants to you, your agents, successors, licensees and assigns, the non-exclusive right, but not the obligation to photograph, record, reproduce or otherwise use all or part of our trademark(s), logo(s), service marks and/or animated or identifiable characters (the “Mark(s)”) listed below in the [TYPE OF PRODUCTION] tentatively entitled [TITLE OF PICTURE] (the “Picture”), and to utilize and reproduce the Mark(s) in connection with the Picture, without limitation as to time or number of runs, for reproduction, exhibition and exploitation, throughout the world, in any and all manner, methods and media, whether now known or hereafter devised, and in the advertising, publicizing, promotion, trailers and exploitation thereof.
If there is a dispute between the parties, the undersigned’s remedies will be limited to an action at law for money damages and in no event will the undersigned have the right to seek injunctive or equitable relief or to otherwise enjoin the production distribution, marketing or exploitation of the Picture.
The undersigned represents that the consent of no other person or entity is required to enable you to use the Mark(s) and that such use will not violate or infringe upon the rights of any third parties. I hereby release to you and your agents, successors, licensees and assigns, from any claim of any kind or nature whatsoever arising from the use of the Mark(s).
In granting of the foregoing rights and licenses, I acknowledge that I have not been induced to do so by any representative or assurance by you or on your behalf relative to the manner in which any of the rights or licenses granted hereunder may be exercised; and I agree that you are under no obligation to exercise
USE OF LITERARY MATERIAL
| Picture Title:____________________________________ | |
| Prod. Company:_________________________________ | |
| Address:_______________________________________ | |
________________________________________ | Date:_______________________ |
Ladies and Gentlemen:
I am informed that you are producing a [TYPE OF PRODUCTION] tentatively entitled [TITLE OF PICTURE] (the “Picture”), and that you have requested that I grant you the right to use the title and/or portions of the following literary material owned and published by the undersigned for inclusion in the Picture:
For good and valuable consideration, receipt and suffiency of which is hereby acknowledged, I, the undersigned, do hereby confirm the consent hereby given you with respect to your use of the above title and/or literary material (the “Materials”) in connection with the Picture, and I do hereby grant to you, your agents, successors, licensees and assigns, the perpetual right to use the Materials in connection with the Picture. I agree that you may record the Materials on film, tape or otherwise and use the Materials and recordings in and in connection with the exhibition, advertising, promotion, exploitation, and any other use of the Picture as you may desire.
I represent that the consent of no other person or entity is required to enable you to use the Materials, and that such use will not violate or infringe upon the rights of any third parties. I hereby release you, your agents, successors, licensees and assigns from and against any and all claims, liabilities, demands, actions, causes of action, costs and expenses, whatsoever, at law or in equity, known or unknown, arising out of your use of the Materials as provided herein in connection with the Picture.
If there is a dispute between the parties, the undersigned’s remedies will be limited to an action at law for money damages and in no event will the undersigned have the right to seek injunctive or equitable relief or to otherwise enjoin the production distribution, marketing or exploitation of the Picture.
In granting of the foregoing rights and licenses, I acknowledge that I have not been induced to do so by any representative or assurance by you or on your behalf relative to the manner in which any of the rights or licenses granted hereunder may be exercised; and I agree that you are under no obligation to exercise any of the rights or licenses granted hereunder.
(Release From Copyrighted Owner)
| Picture Title:____________________________________ | |
| Prod. Company:_________________________________ | |
| Address:_______________________________________ | |
________________________________________ | Date:_______________________ |
Ladies and Gentlemen:
For good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, I, the undersigned, grant to you, your agents, successors, licensees and assigns, the non-exclusive right but not the obligation to use my artwork (as described below) in the [TYPE OF PRODUCTION] tentatively entitled [TITLE OF PICTURE] (the “Picture”), and to utilize and reproduce the artwork in connection with the Picture, without limitation as to time or number of runs, for reproduction, exhibition and exploitation, throughout the world, in any and all manner, methods and media, whether now known or hereafter known or devised, and in the advertising, publicizing, promotion, and exploitation thereof.
I hereby release you, your agents, successors, licensees and assigns from any claim of any kind or nature whatsoever arising from the use of such artwork, including, but not limited to, those based upon defamation (including libel and slander), invasion of privacy, right of publicity, copyright, or any other personal and/or property rights and agree that I will not now or in the future assert or maintain any claims against you, your agents, successors, licensees and assigns.
If there is a dispute between the parties, the undersigned’s remedies will be limited to an action at law for money damages and in no event will the undersigned have the right to seek injunctive or equitable relief or to otherwise enjoin the production distribution, marketing or exploitation of the Picture.
I represent that I am the owner and/or authorized representative of the artwork, and that I have the authority to grant you the permission and rights herein granted, and that no one else’s permission is required with respect to the rights herein granted.
In granting of the foregoing rights and licenses, I acknowledge that I have not been induced to do so by any representative or assurance by you or on your behalf relative to the manner in which any of the rights or licenses granted hereunder may be exercised; and I agree that you are under no obligation to exercise any of the rights or licenses granted hereunder.
(Release From Copyrighted Owner)
| Picture Title:____________________________________ | |
| Prod. Company:_________________________________ | |
| Address:_______________________________________ | |
________________________________________ | Date:_______________________ |
Ladies and Gentlemen:
For good and valuable consideration, receipt and suffiency of which is hereby acknowledged, I, the undersigned, grant to you, your agents, successors, licensees and assigns, the non-exclusive right but not the obligation to use and include the still photograph(s) (the “Still(s)”) as described below, in the [TYPE OF PRODUCTION] tentatively entitled [TITLE OF PICTURE] (the “Picture”), and to utilize and reproduce the Still(s) in connection with the Picture, without limitation as to time or number of runs, for reproduction, exhibition and exploitation, throughout the world, in any and all manner, methods and media, whether now known or hereafter known or devised, and in the advertising, publicizing, promotion, and exploitation thereof.
I hereby release you, your agents, successors, licensees and assigns from any claims of any kind or nature whatsoever arising from the use of the Still(s), including, but not limited to, those based upon defamation, invasion of privacy, right of publicity, copyright, or any other personal and/or property rights and agree that I will not now or in the future assert or maintain any claims against you, your agents, successors, licensees and assigns.
If there is a dispute between the parties, the undersigned’s remedies will be limited to an action at law for money damages and in no event will the undersigned have the right to seek injunctive or equitable relief or to otherwise enjoin the production distribution, marketing or exploitation of the Picture.
I represent that I am the owner and/or authorized representative of the owner of the Still(s), and that I have the authority to grant you the permission and rights herein granted, and that no one else’s permission is required with respect to the rights herein granted.
In granting of the foregoing rights and licenses, I acknowledge that I have not been induced to do so by any representative or assurance by you or on your behalf relative to the manner in which any of the rights or licenses granted hereunder may be exercised; and I agree that you are under no obligation to exercise any of the rights or licenses granted hereunder.
(Release From Person Depicted In Photo)
| Picture Title:____________________________________ | |
| Prod. Company:_________________________________ | |
| Address:_______________________________________ | |
________________________________________ | Date:_______________________ |
Ladies and Gentlemen:
For good and valuable consideration, receipt and suffiency of which is hereby acknowledged, I, the undersigned, grant to you, your agents, successors, licensees and assigns, the non-exclusive right but not the obligation to use and include my physical likeness in the form of a still photograph(s) (the “Still(s)”) as described below, in the [TYPE OF PRODUCTION] tentatively entitled [TITLE OF PICTURE] (the “Picture”), and to utilize and reproduce the Still(s) in connection with the Picture, without limitation as to time or number of runs, for reproduction, exhibition and exploitation, throughout the world, in any and all manner, methods and media, whether now known or hereafter known or devised, and in the advertising, publicizing, promotion, and exploitation thereof.
I agree that I will not assert or maintain against you, your agents, successors, licensees and assigns, a claim, action, suit or demand of any kind or nature whatsoever, including but not limited to, those grounded upon invasion of privacy, rights of publicity or other civil rights, or for any other reason in connection with your authorized use of the Still(s) in the Picture as herein provided. I hereby release you, your agents, successors, licensees and assigns from any and all such claims, actions, causes of action, suits and demands whatsoever that I may now or hereafter have against you or them.
If there is a dispute between the parties, the undersigned’s remedies will be limited to an action at law for money damages and in no event will the undersigned have the right to seek injunctive or equitable relief or to otherwise enjoin the production distribution, marketing or exploitation of the Picture.
In granting of the foregoing rights and licenses, I acknowledge that I have not been induced to do so by any representative or assurance by you or on your behalf relative to the manner in which any of the rights or licenses granted hereunder may be exercised; and I agree that you are under no obligation to exercise any of the rights or licenses granted hereunder.
(Release From Copyrighted Owner)
| Picture Title:____________________________________ | |
| Prod. Company:_________________________________ | |
| Address:_______________________________________ | |
________________________________________ | Date:_______________________ |
Ladies and Gentlemen:
For good and valuable consideration, receipt and suffiency of which is hereby acknowledged, I, the undersigned, grant to you, your agents, successors, licensees and assigns, the non-exclusive right but not the obligation to use and include the poster (entitled or otherwise described as_________________________________) (the “Poster”) in the [TYPE OF PRODUCTION] tentatively entitled [TITLE OF PICTURE] (the “Picture”), and to utilize and reproduce the Poster in connection with the Picture, without limitation as to time or number of runs, for reproduction, exhibition and exploitation, throughout the world, in any and all manner, methods and media, whether now known or hereafter known or devised, and in the advertising, publicizing, promotion, and exploitation thereof.
I hereby release you, your agents, successors, licensees and assigns from any claims of any kind or nature whatsoever arising from the use of the Poster, including, but not limited to, those based upon defamation (including libel and slander), invasion of privacy, right of publicity, copyright, or any other personal and/or property rights and agree that I will not now or in the future assert or maintain any claims against you, your agents, successors, licensees and assigns.
If there is a dispute between the parties, the undersigned’s remedies will be limited to an action at law for money damages and in no event will the undersigned have the right to seek injunctive or equitable relief or to otherwise enjoin the production distribution, marketing or exploitation of the Picture.
I represent that I am the owner and/or authorized representative of the poster, and that I have the authority to grant you the permission and rights herein granted, and that no one else’s permission is required with respect to the rights herein granted.
In granting of the foregoing rights and licenses, I acknowledge that I have not been induced to do so by any representative or assurance by you or on your behalf relative to the manner in which any of the rights or licenses granted hereunder may be exercised; and I agree that you are under no obligation to exercise
(Studio Audience)
TO BE ENLARGED TO POSTER SIZE AND PLACED IN SEVERAL CLEARLY VISIBLE LOCATIONS IN THE STUDIO IN WHICH FILMING OR TAPING IS TAKING PLACE.
MAKE SURE TO FILM THE POSTERS IN THEIR LOCATIONS AS PART OF THE “B” ROLL FOOTAGE AND RETAIN AS PART OF THE LEGAL RECORDS.
NOTICE - FILMING TODAY
PLEASE BE ADVISED THAT YOUR PRESENCE AS A MEMBER OF THIS STUDIO AUDIENCE DURING THE FILMING/TAPING OF THE PROGRAM [TITLE OF PRODUCTION] CONSTITUTES YOUR CONSENT TO YOUR VOICE AND LIKENESS BEING USED, WITHOUT COMPENSATION, IN THE UNLIMITED DISTRIBUTION, ADVERTISING, PROMOTION, EXHIBITION AND EXPLOITATION OF THE PROGRAM IN ANY AND ALL MEDIA BY ANY METHOD OR DEVICE NOW KNOWN OR HEREAFTER DEVISED, AND YOU RELEASE [NAME OF PRODUCTION COMPANY] FROM ANY LIABILITY IN CONNECTION WITH SUCH USAGE.
IF FOR ANY REASON YOU OBJECT TO YOUR VOICE AND LIKENESS BEING SO USED, YOU SHOULD LEAVE THE STUDIO AT THIS TIME. IF YOU REMAIN, YOUR PRESENCE AT THIS FILMING/TAPING WILL CONSTITUTE YOUR APPROVAL OF THE FOREGOING.
CROWD NOTICE — RELEASE (Area)
TO BE ENLARGED TO POSTER SIZE AND PLACED IN SEVERAL CLEARLY VISIBLE LOCATIONS IN THE “AREA” IN WHICH FILMING OR TAPING IS TAKING PLACE. MAKE SURE TO FILM THE POSTERS, INCLUDE AS PART OF “B” ROLL FOOTAGE AND RETAIN FOR YOUR LEGAL RECORDS.
NOTICE - FILMING TODAY
FILMING/TAPING IS TAKING PLACE IN THIS AREA TODAY [DATE(S)]. IF YOU ENTER THIS AREA, YOU MAY APPEAR IN THIS PRODUCTION.
BY ENTERING THIS AREA, YOU HEREBY IRREVOCABLY CONSENT TO AND AUTHORIZE [PRODUCTION COMPANY NAME], ITS LICENSEES, SUCCESSORS AND ASSIGNS, (COLLECTIVELY, THE “PRODUCER”) THE RIGHT TO FILM, PHOTOGRAPH AND RECORD YOU, TO MAKE SOUND RECORDINGS OF YOU AND TO USE SUCH PHOTOGRAPHS, FILM AND RECORDINGS WORLDWIDE, FOR ANY PURPOSE WHATSOEVER IN PERPETUITY; ALL SUCH PHOTOGRAPHS, FILM AND RECORDINGS ARE THE PRODUCER’S SOLE PROPERTY.
YOU RELEASE THE PRODUCER FROM ANY LIABILITY IN CONNECTION WITH THE ABOVE AND UNDERSTAND THAT THE PRODUCER WILL PROCEED IN RELIANCE OF THE ABOVE. THE PRODUCER DOES NOT
ASSUME RESPONSIBILITY FOR ANY INJURY TO YOUR PERSON OR DAMAGE OR LOSS TO YOUR PROPERTY.
THE USE OF CAMERA AND RECORDING EQUIPMENT IS PROHIBITED DUE TO UNION AND COPYRIGHT REGULATIONS.
SMOKING IS PROHIBITED IN THIS AREA. THANK YOU.
SUPPLYING A FILM/TAPE CLIP OF YOUR SHOW FOR PROMOTIONAL PURPOSES
| [DATE] | |
| [NAME & ADDRESS OF PRODUCTION | |
| COMPANY CLIP IS BEING SUPPLIED TO] |
Ladies and Gentlemen:
The undersigned hereby authorizes you to use a FILM/TAPE Clip (the “Clip”) from the [TYPE OF PRODUCTION] entitled [TITLE OF PRODUCITON] for promotional purposes only in the program entitled [PROGRAM CLIP WILL AIR ON] currently scheduled for broadcast on [BROADCAST DATE].
The undersigned hereby affirms that neither the undersigned nor anyone acting on the undersigned’s behalf or any company which the undersigned may represent, gave or agreed to give anything of value (except for the Clip) which was furnished for promotional purposes solely on or in connection with [PROGRAM CLIP WILL AIR ON] to any member of the production staff, anyone associated in any manner with the program or any representative of [PRODUCTION ENTITY CLIP IS BEING SUPPLIED TO] for mentioning or displaying the name of any company which undersigned may represent or any of its products, trademarks, trade-names or the like.
The undersigned understands that any broadcast identification of the Clip (or the name of any company, product, etc. which the undersigned may represent) which [PRODUCTION ENTITY FURNISHING THE CLIP] may furnish, shall, in no event, be beyond that which is reasonably related to the program content.
The undersigned is aware, as is the company which undersigned may represent, that it is a Federal offense unless disclosed to [PRODUCTION ENTITY CLIP IS BEING SUPPLIED TO] prior to broadcast if the undersigned gives or agrees to give anything of value to promote any product, service or venture on the air.
The undersigned represents that the undersigned is fully empowered to execute this letter on behalf of any company which the undersigned may represent.
The undersigned warrants that the undersigned or the company which the undersigned may represent has the right to grant the license herein granted, and agrees to indemnify you for all loss, damage and liability, excluding the payment of any guild-related talent fees or performing rights fees in the music included in the Clip, if any (which you agree to pay or cause to be paid), arising out of the use of the above material.
PRODUCT PLACEMENT RELEASE
| Picture Title:____________________________________ | |
| Prod. Company:_________________________________ | |
| Address:_______________________________________ | |
________________________________________ | Date:_______________________ |
Ladies and Gentlemen:
The undersigned (“Company”) agrees to provide the following product(s) and/or service(s) to [NAME OF PRODUCTION ENTITY] for use in the [TYPE OF PRODUCTION] tentatively [TITLE OF PICTURE] (the “Picture”):
The Company grants to you, your successors, licensees and assigns, the non-exclusive right, but not the obligation to use and include all or part of the trademark(s), logo(s) and/or identifiable characters (the “Mark(s)”) associated with the above listed product(s) and/or service(s) in the Picture, without limitation as to time or number of runs, for reproduction, exhibition and exploitation, throughout the world, in any and all manner, methods and media, whether now known or hereafter known or devised, and in the advertising, publicizing, promotion, trailers and exploitation thereof.
The Company warrants and represents that it is the owner of the product(s) or direct provider of the service(s) as listed above or a representative of such and has the right to enter this agreement and grant the rights granted to [NAME OF PRODUCTION ENTITY] hereunder.
In full consideration of the Company providing the product(s) and/or service(s) to [NAME OF PRODUCTION ENTITY], [NAME OF PRODUCTION ENTITY] agrees to accord the Company screen credit in the end titles of the positive prints of the Picture in the following form:
The Company understands that any broadcast identification of its products, trademarks, trade names or the like which may furnish, shall in no event, be beyond that which is reasonably related to the program content.
As it applies to any and all television broadcasts of the Picture, the Company is aware that it is a Federal offense to give or agree to give anything of value to promote any product, service or venture on the air. The Company affirms that it did not give or agree to give anything of value, except for the product(s) and/or service(s) to any member of the production staff, anyone associated in any manner with the Picture or any representative of [NAME OF PRODUCTION ENTITY] for mentioning or displaying the name of the Company or any of its products, trademarks, trade names, or the like.
If there is a dispute between the parties, the Company’s remedies will be limited to an action at law for money damages and in no event will the Company have the right to seek injunctive or equitable relief or to otherwise enjoin the production distribution, marketing or exploitation of the Picture.
I represent that I am an officer of the Company and am empowered to execute this form on behalf of the Company.
I further represent that neither I nor the Company which I represent will directly or indirectly publicize or otherwise exploit the use, exhibition or demonstration of the above product(s) and/or service(s) in the Picture for advertising, merchandising or promotional purposes without the express written consent of [NAME OF PRODUCTION ENTITY].
FILM/TAPE FOOTAGE RELEASE
Licensor hereby grants to Licensee, Licensor’s permission to edit and include all or portion of the abovementioned Footage in the Picture as follows:
1. Licensor grants to Licensee a non-exclusive license to edit and incorporate the Footage in the Picture. Licensee may broadcast and otherwise exploit the Footage in the Picture, and in customary advertising and publicity thereof, throughout the world in perpetuity in any media now known or hereafter devised.
2. Licensee shall not make any reproductions whatsoever of or from the Footage except as described hereunder.
3. Licensee agrees to obtain, at Licensee’s expense, all required consents of any person whose appearances are contained in the Footage pursuant to this agreement, and to make any payments to such persons, guilds or unions having jurisdiction thereof and music publishers, when necessary. Licensor agrees to supply the identity of such persons, if known.
4. Licensor represents and warrants that: (1) Licensor has the right and power to grant the rights herein granted, and (2) neither Licensee’s use of the Footage pursuant to this license nor anything contained therein infringes upon the rights of any third parties.
5. Licensor and Licensee each agree to indemnify and hold the other harmless from and against any and all claims, losses liabilities, damages and expenses, including reasonable attorneys’ fees, which may result from any breach of their respective representations and warranties hereunder.
6. As between Licensor and Licensee, the Picture shall be Licensee’s sole and exclusive property. Licensee shall not be obligated to use the Footage or the rights herein granted or to produce or broadcast the Picture.
7. Licensor acknowledges that, under the Federal Communications Act, it is a Federal offense to give or agree to give anything of value to promote any product, service or venture in the Picture, and Licensor warrants and represents that Licensor has not and will not do so.
8. If there is a dispute between the parties, Licensor’s remedies will be limited to an action at law for money damages and in no event will Licensor have the right to seek injunctive or equitable relief or to otherwise enjoin the production distribution, marketing or exploitation of the Picture.
9. This agreement constitutes the entire understanding between the parties, supersedes any prior understanding relating thereto and shall not be modified except by a writing signed by the parties. This agreement shall be irrevocable and shall be binding upon and inure to the benefit of Licensor’s and Licensee’s respective successors, assigns and licensees.
Kindly sign below to indicate your acceptance of the foregoing.
TALENT USE OF NAME & LIKENESS IN A FILM OR TV CLIP
| [DATE] | |
| [NAME & ADDRESS OF ACTOR OR | |
| ACTOR’S AGENT] |
Dear [NAME OF ACTOR OR AGENT]:
I am writing to you with regard to a [TYPE OF PRODUCTION] being produced by [NAME OF PRODUCTION ENTITY] and tentatively entitled [TITLE OF PICTURE] (the “Picture”). The Picture is scheduled for release on [DATE OF RELEASE].
A brief description of the Picture is as follows:
In conjunction with this Picture, we are requesting permission to use the appearance of [NAME OF
ACTOR] in a clip from [NAME OF SHOW ACTOR APPEARED IN THAT YOU’RE REQUESTING PERMISSION TO USE CLIP FROM]. In consideration for [NAME OF ACTOR]‘S permission and in conjunction with the current SAG Agreement, [YOUR PRODUCTION ENTITY] hereby offers to pay [NAME OF ACTOR] a fee of $ [TYPICALLY SAG MINIMUM + 10% AGENCY COMMISSION]. This sum represents the total payment for [YOUR PRODUCTION ENTITY]‘S use of [NAME OF ACTOR]’S name and likeness in the above-described clip in and in connection with the Picture and in promotion for the Picture. Compensation to [NAME OF ACTOR] for any further use of the Picture in any media shall be governed by the then applicable collective bargaining agreements pertaining to such use.
I would appreciate it if you would have [NAME OF ACTOR] complete the information requested below and acknowledge [HIS] [HER] assent to the Agreement by signing below. Once executed, please return a copy of this letter to us for our records.
Please do not hesitate to call should you have any questions.
Sincerely yours,
REQUEST FOR DVD
| [NAME & ADDRESS OF PERSON/COMPANY | [DATE] |
| ACTOR’S AGENT] |
Dear [NAME OF PERSON RECEIVING THE DVD]:
You accept delivery of the DVD (“Recording”) of [TITLE OF PICTURE] (the “Picture”) and in connection of our delivery of it, agree as follows:
You understand that your receipt of such DVD does not convey to you any of the underlying intellectual property rights to the Picture involved, and that each physical DVD will remain the property of the company which supplied it.
You agree to ensure that you know, at all times, the whereabouts of the DVD sent to you under this agreement. You agree not to allow the DVD to circulate outside of your residence or office. You agree not to allow the DVD to be reproduced in any fashion, and not to sell it or to give it away at any time.
You warrant, represent and agree that the Recording shall be used for your private utilization only or for screenings in connection with a demo reel; and the Recording will never be publicly exhibited in any manner or medium whatsoever. You will not charge or authorize the charge of a fee for exhibiting the Recording.
You agree to indemnify us against and hold us harmless from claims, liabilities and actions arising out of your breach of this agreement.
If requested, you agree to reimburse us for the cost of making the Recording available to you.
You understand that a violation of this agreement may result in civil and criminal penalties.
This will become a contract between you and us upon your acceptance of delivery of the Recording.
