LEGAL REPRESENTATION FOR FILM AND TELEVISION PRODUCTION TRADEMARK, COPYRIGHT AND CONTRACTUAL RIGHTS CLEARANCE

[Please note that the Nissenbaum Law Group does not serve as an entertainment agency, nor does it shop its clients for production or distribution deals.]

The very nature of film and television production creates the possibility of infringing—albeit, inadvertently—on the intellectual property rights of others. This includes, copyright, trademark, contractual rights and other legal protections. The general need for this stems from the fact that film images, music and even dialogue are meant to tell a story that engages the audience.  One aspect of doing so is to include familiar trademarks, copyrights and even branding, such as logos and product names, in the final version of the film or television show. Infringement can take many forms and indeed, be completely unintentional. A film or television show’s story can violate a literary work’s copyright; a series of notes can just happen to echo a protected musical composition; the use of a digital platform related to a film or television show can incorporate intellectual rights from a virtual work.

The Nissenbaum Law Group has experience serving as clearance counsel regarding all aspects of film production. It is available to do so in New Jersey, New York, Pennsylvania, Texas and other states (in accordance with the multi-jurisdiction rules). The firm can review both the pre-production—scripts, storyboards, artwork, locations, soundtracks and such—as well as perform a post-production review of the rough and final cuts of the film or television show itself. It can handle these engagements in most of the United States, including all states in which it has offices—New York, New Jersey, Pennsylvania and Texas—and others consistent with the multi-jurisdictional rules. Accordingly, the firm has an unusually large breadth of potential client coverage: from Austin to Dallas, from Philadelphia to Pittsburgh, from Manhattan to Brooklyn, from Newark to Hackensack. In all these places and more, the Nissenbaum Law Group is available to serve the need for film coverage legal services.

Having intellectual property clearance counsel for a film or television project is especially important not only to avoid claims of infringement, but also because the errors and omissions insurance that most film and television productions are required to secure imposes the condition that clearances have been obtained. Likewise, motion picture investors will typically require a representation that the releases and clearances are in place. It is a vital part of the film production process.

The Firm is available to act as clearance counsel regarding a wide range of matters relating to film or television production, such as

• evaluating logos and branding reflected in the final film or television show;
• effectuating digital licensing;
• filing or amending the corresponding copyright or trademark applications;
• evaluating locations and venues for shooting the production;
• reviewing and securing third party rights through non-exclusive licensing;
• reviewing dailies and performing footage research;
• obtaining prop, artwork and set clearance licensing;
• reviewing draft and final versions of the script for copyright issues;
• performing post production clearance review;
• obtaining necessary intellectual property releases;
• assisting in finalizing the documentation for errors and omissions insurance; and
• answering questions raised by investors or distributors relating to intellectual property clearances and releases

Serving as Clearance Counsel For Film & Television Production

The Nissenbaum Law Group welcomes inquiries from clients involved in any aspect of major motion picture production, including film studios, producers, directors, performers, talent agents, distributors, financers, publicists, cinematographers, soundtrack composers and engineers. The firm not only practices entertainment law, but also handles matters in other states in accordance with the local multi-jurisdictional rules.

FAQs — Frequently Asked Questions About Intellectual Property Clearance and Registration for Film and Television Productions.

#1 Is it more likely that the title of a film or television production will be registered as a trademark if it is part of a series that uses that title?

Generally, yes. Trademark law seeks to prevent infringement on a title by which a work is known in commerce. The basic idea is to prevent confusion on the part of the consumer, so that when the title is used to identify the product, the purchaser or user is not mistaken in assuming that it is from the same source as products that used that title previously. The United States Patent and Trademark Office (USPTO) has analyzed the issues surrounding this on its under the article “Trademark Refusal: Title of a Single Creative Work”.

#2 Can there be criminal penalties for willfully violating another’s copyright?

Yes. While rare, criminal penalties can be imposed for copyright infringement. As stated on the United States Department of Justice website, they can include the following. “A defendant, convicted for the first time of violating 17 U.S.C. §  506(a) by the unauthorized reproduction or distribution, during any 180-day period, of at least 10 copies or phonorecords, or 1 or more copyrighted works, with a retail value of more than $2,500 can be imprisoned for up to 5 years and fined up to $250,000, or both. 18 U.S.C. §§ 2319(b), 3571(b)(3)”.

#3 Can Film production be halted by an injunction if there is serious copyright infringement?

Yes. Serious copyright infringement can be a basis for obtaining injunctive relief, which presumably can include halting production or distribution of a film. As stated on the United States Copyright Office website, Section 502 of the Copyright Act states:

502. Remedies for infringement: Injunctions

(a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.

(b) Any such injunction may be served anywhere in the United States on the person enjoined; it shall be operative throughout the United States and shall be enforceable, by proceedings in contempt or otherwise, by any United States court having jurisdiction of that person. The clerk of the court granting the injunction shall, when requested by any other court in which enforcement of the injunction is sought, transmit promptly to the other court a certified copy of all the papers in the case on file in such clerk’s office.