THE LAW OF COPYRIGHT
THE LAW OF COPYRIGHT
Introduction to US Copyright Law
By Brandon A. Blake
Under current copyright law, works need not be registered with the copyright
office as a prerequisite for copyright protection. Copyright automatically
vests when the work is fixed in a tangible form of expression, such as
a printed page. However, there are many benefits to registering the copyright
in a work, including guaranteed statutory damages, the right to compensation
for attorney’s fees if the filmmaker must file suit against an infringer,
and the ability to document the chain-of-title for later distribution purposes.
The copyright office has a number of separate forms for registering
different types of works. Films, videos, and other audiovisual works are
considered performing arts by the Copyright Act and registered on form
PA. Screenplays are also considered works of performing art and/or works
intended to be performed. Depending on the work to be copyrighted, either
a long or short form registration may be used. Copyright registration costs
are small compared to the potential benefits, making copyright registration
a good precautionary step in avoiding later disputes.
Motion Picture Copyrights
A film is a derivative work, or in other words, it is based on many
other existing works that may also have been copyrighted. Even a film based
on an original screenplay is derivative because the film by necessity is
based on the screenplay itself. A filmmaker must make sure to acquire the
rights to all of the works the film is based on.
What filmmakers often don’t know, is that all of the collaborators in
a film, such as the director of photography, sound technicians, art directors,
and many others can all qualify as authors of the film under federal copyright
law. U.S. Copyright law has provided for the collaborative nature of film
making by creating the work-for-hire doctrine, which states that all of
the various artists and craftspeople that are typically found on a film
set can work on a film while the copyright ownership remains with the production
company. The work-for-hire doctrine is more fully discussed below.
In general the producer is ultimately responsible for registering the
copyright of the film with the Copyright Office in the name of the production
company. This gives the production company the right to sell, license,
or modify the film, unless certain contractual obligations apply.
Works for Hire
Part of the work-for-hire doctrine in the U.S. Copyright Act is specifically
directed towards filmmakers. If the filmmaker wants to avoid sharing the
copyright in the film with all of the participants in the production of
the film, the filmmaker must enter into a written agreement with each person
involved in the production of the motion picture.
The agreement should state that the participant agrees to perform all
of his or her services on the film as a work-for-hire. Even if no money
is exchanged, these agreements will insure that the production company
alone holds the copyright in the work.
Everyone who works on the film and contributes to the production or
postproduction must sign a work-for-hire agreement. On most films, this
is simply one of the standard clauses inserted into an employment contract
with the different parties involved.
Documentaries and University Film Making
Sometimes institutions like universities or grant foundations claim
that a copyright in the film belongs to the institution, either because
the filmmaker is a grantee or a student or because the filmmaker is using
the institution’s equipment. Care must be taken before accepting funds
or facilities, so that the institution will not later claim a stake in
the production.
To insure that the filmmaker, not the institution, holds the copyright
in the film, it may be advisable to require an authorized party at the
institution to sign an agreement, clarifying that the film belongs exclusively
to the filmmaker. It will be beneficial in the long run to always stay
aware of the obligations and expectations of institutional funding and
facility support.
© COPYRIGHT 2001 BLAKE & WANG, P.A. ALL RIGHTS RESERVED.
