Legal Question in Intellectual Property in California

Oh, what an excellent question! Foresight is a really good thing.

Yes, to show the poster on the wall in the background of your film, you need to get the permission of the holder of copyright in the poster.

You may also have to obtain Mr. Bloom's permission to use his image in the film, outside of the copyright concerns; he's a "famous" person, and there are certain rights that those who are famous have in the distribution of their images that the rest of us don't have.

Bare-bones copyright infringement requires that the plaintiff meet a two-pronged test: (1) does a valid copyright exist? Here, the answer is very likely to be yes. (2) is there a substantially similar copy of the copyrighted material? Here, the answer is definitely yes.

Obviously there are many defenses to a copyright suit, and you may prevail in court, but count on a lawsuit if you don't negotiate for the rights to use the image before you distribute; although you will likely have to pay a licensing fee, it's really far less expensive (in terms of money, time and angst) to get those rights to use the image before you distribute the film.

You need to sit down with your copyright attorney and talk about this and other potential copyright or trademark issues that may be in your film before you distribute it.

Nancy Delain

Delain Law Office, PLLC

http://www.ipattorneyfirm.com

518-371-4599

Ms. Delain made a great post. I want to add that you might be able to get by without seeking permission under what we call in the law,"fair use". Fair use provides an otherwise infringer, the rights to use the copyright owner's work. There are five factors to help determine whether something is allowed under fair use. The predominant factor I see here is how much of the poster is being exposed. Is it in the background and can barely be seen? Or is it exposed clearly in the scene? The former would weigh more in favor of fair use. You will need to consult a copyright attorney and have him/her look at the scene to determine whether you should get permission or not. But chances are, seeking permission from the copyright owner is the easiest way.

I would agree with both of the attorney's above. I want to add that in addition to the potential copyright issue, there is also an issue under California's Privacy Laws. In California, the use of a person's likeness (in this case, photograph) for a commercial purpose is prohibited unless you obtained permission from said person. If you would like to discuss your situation in more detail, feel free to call me for a free consultation.

Kind regards,

Jim

Jim Betinol

Partner

Withrow and Betinol Law

www.wibelaw.com

E: [email protected]

P: 424.229.2560

F: 424.258.7001

Disclaimer: This communication does not create an attorney-client relationship and such a relationship can only be formed through a signed written agreement. This communication is not legal advice and should not be solely relied upon in making your legal decisions. Any situation depends on many different facts and specific laws that require an in-depth legal consultation to evaluate the best solution for your needs.