Legally Obtaining Rights to Music for Your Film


Music is often a very important part of a filmmaker’s creative vision in putting together a film, and the collaboration between musicians and filmmakers can result in great things for both parties. From the point of view of the musician, the use of his or her music in a film brings up not only issues of payment, but of attribution, business relationships, and reputation as well. The filmmaker has to think of how he or she would feel if some of his or her work was used in another film or project, and the rights to be protected. The clearance of rights to music are mostly negotiated and not statutory, and involved people and entities other than the musician, such as record companies, music publishers, and music performance societies. Whether the filmmaker wants to use existing music or commissioned music, there are certain steps which must be taken, which can be costly and time-consuming. This paper will lay out some of the basics to determining the rights involved and how music can legally be obtained for a film. To ignore these steps and attempt to use music without obtaining rights to it, either because you think your film is `too small’, the amount of music used is `minimal’, or not enough money will be made to make a difference to the rights holders, is a risky and foolish proposition. As most filmmakers dream of their film “making it big” even if it starts small, you would be foreclosing yourself from that ever happening if you use music that has not been cleared. You will not be able to get a distribution deal, may have lawsuits filed against you and everyone involved in making the film, and at the very least may have to reshoot your film without the music that has not been cleared. This will not only be very costly to you, but may ruin your reputation for future filmmaking. There are ways to obtain music more cheaply, but first you have to think about others’ rights and plan the use of music in your film ahead of time. Balancing the cost of clearances with the need for certain music will help you to form a budget for your film and make sure you are not causing yourself extra problems with your production.

Costumes, Characters and Copyright: a Cosplayer’s Guide to Recent Cases


No more eloquent a description of a fan costumer, or cosplayers as they are known, exists than in the amicus curiae brief filed by the International Costumer’s Guild in the recent U.S. Supreme Court case Star Athletica, LLC v. Varsity Brands, Inc.[1], where the costume creators were described as a “community of celebrants of culture”.[2]

NBA2K16 should pay for the “Extra Value” Added to the Games by Players’ Tattoos

A tattoo is undoubtedly a work of art, and once inked onto a person’s skin, that art is permanently “fixed” as a part of that person. But is it “fixed in a medium” as required for protection under the Copyright Act?

That is the question posed by the makers of the wildly popular basketball video game series, NBA2K, in answering a lawsuit brought by the owners of the copyrights to the tattoo designs featured on some NBA players in this and prior years’ games. After making a deal with the tattoo artists to exploit their designs in return for a royalty, Solid Oak Sketches, LLC offered 2K Games, the makers of the NBA2K series, a license for the tattoo designs, but they declined. Ultimately Solid Oak filed suit for copyright infringement against the video game makers and developers, Visual Concepts LLC, 2K Games Inc., and Take-Two Interactive Software, Inc. on February 1, 2016 after this year’s video game, NBA2K16, was released.[1]

Fan Films – Breaking the Unwritten Rules and Defining Profit

The word “fan” finds its origins in the word “fanatic”, defined as a person “unreasonably enthusiastic” or “overly zealous” about a specified performer, sport, movie or program. Some of the most enthusiastic fans of all are those who profess their love of certain movies or television shows by producing a “fan film.”
Fan films use copyrighted material to pay homage to the original, and under the unwritten rules of this practice, they are not to be sold and no profit is to be made from them. They are not supposed to be in competition with the original film or show, and they are not to be seen as a substitute for the original work. Usually these heartfelt homages are made by amateur filmmakers with their own money, and they do not rise to any significant competitive level with the original in quality, scope or length.
This noncommercial but still infringing use of copyrighted works is termed “tolerated use”, and is allowed by the rights holder despite knowing someone is infringing on their work. The understanding of fan film makers is that under these unwritten rules they cannot profit from their fan film in any way, and it must remain noncommercial (i.e. not for sale) and noncompetitive with the original work. The copyright holder may feel the fan film complements the original work, creates goodwill and adds value in keeping fans engaged and favorite characters alive. On the other hand, it is still direct infringement of copyrights and trademarks that the rights holder may to put a stop to at any time. It is possible that the movie and television studios have allowed fan films to this point because they were not any competition and did not made profits from the use of their copyrights, so committing serious money to sue them did not make sense.
Fan films have been made for decades and many rights holders have unofficially sanctioned them by not suing the makers for copyright infringement. Some rights holders not only tolerate fan films, they encourage them. Lucasfilm holds an annual “Star Wars Fan Film Awards” which they call “the ultimate celebration of Star Wars fan creativity”. However, the rules for this contest state that “SW fan films are limited to 5 minutes in length and nobody that is union affiliated is allowed to be involved.” Obviously a five minute video is by definition not in competition with the full length Star Wars films.
Another issue for rights holders is the use of their logos and other trademarks in fan films which may not square with the reputation and goodwill that are represented by the marks. The fan film may make use of subject matter or topics that the rights holder does not want associated with its trademarks. Or the use can be so poorly executed that it may reflect badly on the rights holder by association, so that it tarnishes the company’s brand. Of course any use by fan filmmakers of the trademarks of the original work in any kind of commerce, either distributing or selling items with the logo or trademarked characters is a violation of the Lanham Act and can be the subject of a separate lawsuit.
These issues all came into sharp focus with the filing of a copyright infringement lawsuit in U.S. District Court in Los Angeles by Paramount Pictures and CBS Studios against Axanar Productions and its president, Alec Peters, along with twenty other “John Doe” defendants who assisted in the making of the film (Paramount Pictures Corp. & CBS Studios Inc. v. Axanar Productions, Inc.) When a group of filmmakers decided to make a Star Trek fan film called “Axanar” and raised over $1 million in donations through Kickstarter and Indiegogo campaigns to produce the movie, the copyright holders sat up and took notice. According to Variety, “(t)he suit notes that the two films are “substantially similar to the Star Trek Copyrighted Works, with Vulcans, Klingons and many of the original franchise’s characters portrayed throughout.” The suit alleges that in their unauthorized derivative works based on Star Trek, the Axanar producers “unabashedly” took CBS and Paramount’s intellectual property to make their movie “look and feel” like a true Star Trek movie. It claims that Axanar was intended to be a professional production, and infringes the plaintiffs’ works by “using innumerable copyrighted elements of Star Trek, including its settings, characters, species and themes.”
The studios in this case seem to have finally drawn the line on how much they will tolerate with fan films, and in their complaint are asking for injunctive relief restraining the Defendants, and anyone acting in concert with them, from directly or indirectly infringing the copyrights of the Star Trek Works, including but not limited to “continuing to prepare, reproduce, distribute, copy, publicly perform, market, advertise, promote, produce, sell or offer for sale the Axanar Works or any works derived or copied from the Star Trek Copyrighted Works”; statutory damages of $150,000 per each separate infringement of the Star Trek Copyrighted Works; reasonable attorney’s fees; and a declaratory judgment that the continued production of the Axanar Motion Picture specifically constitutes infringement of the Star Wars Copyrighted Works.
The case revolves around what “profiting” from a fan film includes – can a filmmaker hire actors, set designers and build out a studio with crowdfunded money to make a “fan” film? Can he pay himself a salary from the funds? Paramount and CBS say no, deciding that this Axanar movie is no fan film but a competing product made from their copyrights and trademarks. The lawsuit is their way of reining in their previous tolerance of unlicensed use of their intellectual property, and protecting their legal rights under federal law. It is the evident hope of CBS and Paramount that the court will set a precedent on what is a fan film that can be tolerated by the rights holders, and what is straight infringement by a rival producer.
The producer of Axanar, Alec Peters, has not made himself popular with the studios or even a lot of Star Trek fans, some of whom contributed money to the project. In his response to the lawsuit on his website, he claims his movie is a “labor of love” that “keeps fans engaged, entertained, and keeps favorite characters alive in the hearts of fans.” He claims to have been in contact with Paramount and CBS before the project was started, but does not say how far he may have been allowed to go with a Star Trek fan film.
Discussions among filmmakers and Star Trek fans reveal the theory that the Axanar movie may have been “too good” and the competition was too much for Paramount and CBS, so they decided to shut it down. The braggadocio exhibited by Peters in criticizing how the owners of Star Trek have exploited the franchise in the past, and that his movie was going to be better, probably did not help his cause. But the very fact that the production was staffed with “industry professionals” as Peters admits in his published response, and that a commercial production studio was being built with the million dollars’ worth of funds donated to make the film, shows that this was a for-profit project. The profit component is the real linchpin to gauge how future fan films will be treated by rights holders.
Some were suspicious that Peters mysteriously kept delaying the start of production while encouraging people to make more donations to his crowdfunding sites for the film. He announced that he was building out a studio “for the production of Axanar,” but also said he wanted to use it to make other films in the future. This plan added to the feeling among fans that Axanar was using another’s copyrighted work for their own profit. The admissions by Peters, along with a financial report sent out to donors that was said to have numerous red flags indicating that he and his girlfriend may have drawn salaries from donated funds, was evidently the last straw for Paramount and CBS.
Whether Peters and Axanar Productions are shut down by a permanent injunction or they settle with Paramount and CBS to voluntarily cease production of this copyright infringing movie is still to be seen. One question has been posed in discussions among filmmakers – will Peters have to return the donations made through Kickstarter and Indiegogo? The project only got as far as a small prequel, “Prelude to Axanar”, so the fans donating cash did not really get what they were promised, a full length Star Trek film. There have been some concerns voiced recently about how stringently the crowdfunding sites monitor projects they accept for the unlicensed use of others copyrighted material, and whether they would take any responsibility to enforce any reimbursement by Peters and Axanar Productions.
The Axanar lawsuit should serve as a cautionary tale for all fan film makers, as it will most likely result in strongly stated and probably strict parameters being set by other rights holders for future tolerated use of their intellectual property. Peters, by going too far in making a film that was no longer a fan film but a low budget film with paid professionals competing with Star Trek works, crossed that line. He may have made it more difficult for fans to pay homage to their favorite movies with a lovingly crafted but still unauthorized work.

©2016 Mary Ellen Tomazic