Filmmaker-2-Filmmaker: Tip 5 - Why Public Domain Music Isn't As Cheap As You Thought

During my last year in film school, I got some bad advice.

I was working on my student film, the one that would have to play in the senior film festival. I had no budget and most of my actors and crew were generously donating their time to help me finish what I expected would be a masterpiece.

As post-production loomed, I began searching for music to score my film that fell within my budget - zero dollars. I was hoping to hire a local Providence-based band, but none of the ones I contacted were willing to do it for free. While I didn’t know much about copyright back then, I knew enough to avoid using popular songs and I didn’t want to get pinched for illegally downloading music (back then, Napster was all the rage).

Witnessing my plight, a friend suggested that I use classical music. His reasoning: the songs were composed hundreds of years ago and were in the public domain, so I wouldn’t have to ask anyone's permission and I definitely wouldn’t have to pay anyone for the privilege. Even better, classical music would give my film an air of sophistication, like 2001: A Space Odyssey. Because nothing demonstrates film school hubris quite like comparing your student film to one of the greatest pieces of cinema ever made.

Anyway, I followed my friend's advice and used classical music. The film played in the student filmfest and, while not exactly on par with Kubrick’s masterwork, it was moderately well received. I sent it off to some real film festivals and was rejected by all of them.

My friend was right about one thing: music composed before 1922 is not protected by copyright law. As a result, it lives in the public domain (meaning you can use it for any purpose without paying for it). But it was still bad advice. As I later learned in my producing career, where music is involved, not only is the song itself subject to copyright protection, the RECORDING of that song is also explicitly granted copyright protection. Which means that most music is protected twice under the law.

Why are recordings granted their own copyright protection? Because they're considered separate works of artistic expression. The copyright to a piece of music protects only the WRITTEN music and accompanying lyrics. The copyright to a recording rests with the specific audio RECORDING of the song. More than that, each separate recording - even if it’s of the same song - is granted its own copyright. A live recording of Eric Clapton’s Layla (like the famous MTV Unplugged version) has a separate copyright from the original recording which appeared on the 1970 album Layla and Other Assorted Love Songs because it's a completely unique and discrete interpretation of the song. And each of those copyrights stand apart from the copyright granted to the words and music as written by Clapton and his partner Jim Gordon.

Even if the music is in the public domain, copyright protection will still attach to recordings made after 1922. Just yesterday I was listening to a rendition of Fare Thee Well (Dink's Song) by Marcus Mumford and Oscar Isaac off the Inside Llewyn Davis soundtrack. The origins of the song can be traced to 1904, which means it predates modern copyright law. But a simple iTunes search will reveal dozens of recordings of the song by Bob Dylan, Pete Seeger, Dave Van Ronk, Jeff Buckley, Ramblin’ Jack Elliot, and many more. Each recording of the song gets its own copyright, even though the music and lyrics are no longer protected.

So the moral of the story for all you filmmakers out there: don’t do what I did and think you’re getting off scott free just because you chose some archaic piece of music that was popular during the Napoleonic wars. You’ll still have get permission from the owner of the recording's copyright.

The Artist Returns... With a Mission For His Readers

Dear readers, friends, and colleagues,

As you may have noticed, I have been absent from this blog for the better part of a month.  The reasons for this absence are myriad and range from interesting (a sudden and epic trip to Beirut, Lebanon) to uninteresting (Olympic-level laziness).  Suffice to say, I plan to make sure that such a lengthy absence occurs never again.  As things calm down over the next few weeks, I expect to return to the blog full-time and give regular updates at least once a week, starting now.

But that's not all.  Back in September, I briefly mentioned a project that I've dubbed The Artist's Bill of Rights.  The time has come to make this project a reality and friends, I want your help.

Here's the pitch: You're an artist, writer, musician, or filmmaker and you want to earn a living doing that.  But as an artrepreneur, you know you have to sweat the business stuff to make a living.  That's where the Artist's Bill of Rights can help you.  It will be a guide to all those young starving artists out there who can't afford to hire a legal team, but desperately need to know how protect themselves and their work.  And while the Bill of Rights isn't meant to be a replacement for real legal representation, it WILL at least give artists a primer on how to find the resources they need and give them a basic education in their legal rights.  When the Bill of Rights is completed, I will provide it FREE OF CHARGE here on this website.

So what do I need from you?  Two things:

(1) Just like the United States Bill of Rights, the Artist's Bill of Rights will have a list of Ten Rights that I think are the most important for artrepreneurs to know.  I've already come up with more than enough to get started, but I realize that my experience in the art world isn't sufficient.  So I'm asking every artist out there this question: what law or law-related issues do you wish you had been taught when you first started going it alone?

These questions can run the gamut from ownership of intellectual property, such as "if I'm commissioned to do a sculpture, who owns the copyright?" to payment questions such as "if a client doesn't like the work I do for them, can they withhold payment?"  They can even be business oriented questions such as "what is the best corporate form for my design business... an LLC or a sole proprietorship?"  As long as the question has a tangential relationship to the law, don't hesitate to ask me.  I will incorporate the most relevant ones into the Bill of Rights.

(2) Maybe you're not an artist, but I'll bet my paycheck that you know one.  Find him or her and direct them to this post.  We live in a precarious time, economically speaking, but there's no reason why someone with artistic talent and ambition shouldn't be able to make a living doing what they're good at just because they don't know how to protect themselves.

My hope is that The Artist's Bill of Rights will be a tool that artists - young and experienced alike - can use to level the playing field and even *gasp* make a living doing what they love without fear of poverty.

I can be contacted through the Get In Touch link at the top, or directly at thelegalartist at me dot com.

Also... did I mention that it would be free?  That's pretty important.  Tell your friends!

Filmmaker-2-Filmmaker: Tip 3 - Sweat The Business Stuff

Have you seen Night of the Living Dead?  Even if you haven't, you are probably aware of its influence.  The 1968 George Romero horror film is the progenitor of every modern zombie trope; the shambling, the flesh-eating, the brain-lust.  Dawn of the Dead, 28 Days Later, Resident Evil, World War Z, the list of imitators and followers extends to infinity.  Everything you know about zombies came from this film.  On top of that, the film is great.  It was terrifying in a way that horror films just weren't until then.  The black and white cinematography is among the most beautiful ever put on film.  And forty-four years later, the film is still teaching us... about copyright?

Before the film was released, it was originally titled Night of the Flesh Eaters, and like all movies of it s day, there was a copyright mark next to the title (that famous little © followed by a date).  But when the title was changed to Night of the Living Dead, the copyright mark was negligently removed.  Based on the copyright law of the time, the absence of the © rendered the film's copyright invalid and the movie immediately entered the public domain.  That meant that anyone could make money off the movie and Romero couldn't do anything about it.  Today, the film is sold on home video by a number of different distributors and is available to view or download free on Hulu and YouTube.

Night isn't the only movie currently in the public domain, but it's rare to see a film on that list that isn't from the 20s, 30s, and 40s.  Thankfully, that law became defunct in 1988 and today artists are no longer required to place the © mark on their work in order to maintain the copyright, although I still recommend doing it (For information on how to protect your copyright, please see my previous post on how and why to register).  Romero has since gone on to make seven million zombie films (only a slight exaggeration), and he owns the copyright to many of them.

So why am I writing about this?  First, because it's an awesome anecdote and an appropriate one for the first day of October.  Second, because it functions as a cautionary tale for every artist out there.  It's tempting to say "I'll take care of the art now and worry about the business stuff later" because as artists, that's where our passion lies.  Our instinct says that if the art is good enough, the business stuff will just fall into place on its own.  Of course, that isn't the reality.  I can attest to that from personal experience...people will try to take advantage of you, either by design or accident.  No one is going to protect your work for you, which is why you need to sweat the business stuff from the moment you begin a project until the moment you deliver it.  It may not be fun to labor over copyright applications or contracts, but that's how you prevent the world from gaining unfettered access to your work (and let's face it, if you're an artist your work isn't just a living, it is an extension of you).  To Romero, the image of zombies in a field was the most terrifying thing he could think of.  To me, it's the idea that because of a little negligence, someone else can make money off your work.

If you're an artist or a filmmaker, you need to condition yourself to take the business side seriously from the beginning.  Don't leave it to the end and certainly don't leave it entirely in the care of another.  Here are some things you should be asking yourself:

1. Is my original work registered with the U.S. Copyright Office?  If not, it should be.
2. Regardless of whether I registered my copyright, did I put ©, the date of publication, and my name on the work?  If not, I should.
3. Do I know what my value is?  If not, I should figure it out and stick by it.
4. Do I have a contract?  If not, I should have one.  It doesn't need to be long or lawyer-y.  It just has to state the terms.  It doesn't even have to be drafted by a lawyer (although it helps).
5. If I'm pitching original ideas, did I have people sign non-disclosure agreements?  I should.
6. Do I own the copyright or does my employer?  This is called work-for-hire and the general rule is that if you are hired to do a creative work for someone, the employer, not you, owns the copyright (this is a bigger issue and I'll tackle it in a future post).
7. Did I double and triple check all my papers (including papers that I had other people sign and papers that other people had me sign)?

Bottom line: pay attention to every little particular because the devil - or in this case, the zombies - are in the details.

Filmmaker-2-Filmmaker: Tip 2 - Copyrighting Your Writing

[Author's Note: this post contains legal information but is not intended as legal advice. All the legal information contained in this blog post is public domain and available to everyone.]

Between high school and law school, I wrote 21 screenplays - 5 features, and 16 shorts.  Like many creative types, I only had a vague idea of what copyright was and had no concept of how to use copyright to protect that work.  As a result, I was too scared to show my writing to anyone for fear of theft.  Those scripts sat collecting dust for a very long time.

So when I get a question like this - "If I want to copyright a movie script in the U.S., how do I do it? And do I have to be a citizen?" - I feel compelled to pass on the knowledge and experience that I have been blessed with since that time.  This particular question came from my cousin, a man who is as much a movie buff as I am, and with whom I've spent countless hours geeking out over a wide variety of films.  And while the citizenship question is not one that most of you will face, it does tap into the fundamentals of U.S. Copyright Law.  So let's get to it!

U.S. Copyright Law is really an artist’s dream because there are so many devices built into it that help artists protect their work.  Here are some good ones:

1. The moment you create a work of artistic expression, such as a screenplay, and that work is fixed in a tangible form (i.e. you wrote it down), that work is copyrighted.  No registration of any kind is required.  You don't need official documentation to copyright something and, believe it or not, you don't even need to put that little © on the work (although it’s still advisable… the more information there is to demonstrate authorship and date of creation, the better you can protect yourself).  Basically, the moment you put pen to paper, you are the owner of that intellectual property (minus some exceptions that I won't go into here).
2. Just about everything creative qualifies for copyright protection (you can’t, however, copyright ideas or concepts). For those interested in the specifics, Section 102 of the Copyright Law outlines what is covered.  The list is not exhaustive and is left wide open for future types of artistic expression.
3. If you create a work, then you, your children, your grandchildren, and maybe even your great-grandchildren can benefit financially from it.  Most copyrights last for the life of the author plus 70 years.
4. If someone steals your work, you can sue for quite a bit of money.  Damages range from $750.00, to $150,000 for each infringed work!
5. And yes, even if you’re not a U.S. citizen, you can still benefit from U.S. Copyright Law protections.  According to the U.S. Copyright Office, “Any work that is protected by U.S. copyright law can be registered. This includes many works of foreign origin. All works that are unpublished, regardless of the nationality of the author, are protected in the United States.”

But even with all these protections, U.S. Copyright Law can’t prevent someone from stealing your hard work.  And if you end up in a situation where someone is claiming your writing as their own, you need to show that your work predates theirs.  For that, you need documented proof.  So although your artistic expression is copyrighted from the moment it’s created, registering it with the Copyright Office or the Writers Guild of America (WGA) is the best way to create that proof and take advantage of all those great benefits I just outlined.

True story: in 2003, I went to pitch several TV shows to development execs at a Hollywood production company that I had freelanced for.  The ideas were fairly detailed, but I had not written them down.  The execs politely informed me that the ideas weren't right for them and sent me on my way.  A few months later, I went back to interview for another low paid freelance position at that company, only to discover that I was interviewing for a job on a new show that bore a suspicious resemblance to one I had pitched them months before.  I put up a fight and, as you might expect, wasn’t hired by them again.  I felt angry and helpless, mostly because I didn’t have any proof that I had come up with the ideas myself.

If I had typed up my ideas into “treatments” and registered those treatments with the Copyright Office and the WGA, I could have sued for theft of my copyright because the registrations would have created a public record showing that my idea had existed before their show.

There are three main ways to register, they're all relatively painless, and you can do as many or as few as you want:

1. Register your work with the U.S. Copyright Office.  You can register online at the Copyright Office website. There’s a $35 filing fee (per work) and the processing time is roughly between 2-3 months.
2. Register your work with the Writers Guild of America.  You can register online at the WGA East or WGA West.  The filing fees for non-members are $25 per work for WGA East and $20 per work for WGA West.  You can also register with either by mail if you prefer.  I’ve registered works with both the Copyright Office and the WGA and the protections are comparable.  The whole point is to make sure that there’s an official record of your work somewhere in case you need to prove it.
3. The last option is known as the “poor man’s copyright.”  If you wish to have evidence that your work came first, but cannot pay the filing fees (remember, at the Copyright Office or the WGA, you must pay the fee FOR EACH WORK registered), you can mail yourself a copy of the work.  The envelope will be stamped with a date and that date will be the proof of origin.  Of course, the envelope must remain sealed once you receive it.  To open it would be to eradicate the purpose of sending it yourself (if the envelope remains sealed, no one can tamper with the contents). In my experience, the “poor man’s copyright” isn’t nearly as effective as the first two, mostly because people forget that they’re not supposed to open the envelope.  One time, I mailed myself my own screenplay (it cost $10 to mail).  A week later, I received it in the mail.  I was so excited to get a package that I neglected to look at the sender's address (MINE!) and tore open the envelope to find my own script.  Whoops!  Suffice to say, that was not $10 well spent.

Speaking from personal experience, registering my writing gave me the peace of mind I needed to feel comfortable showing it to others without fear of it being stolen.  My feeling is, if I can’t prove that I own the copyright, I can’t prove theft and thus, can’t win in a lawsuit.

As an aside: the Copyright Office is a great resource for artists and writers looking for information on how the law works.  It also contains the complete copyright law for you to peruse.

Filmmaker-2-Filmmaker: Tip 1 – Wiretapping

This is the first in what I hope will be an ongoing resource for up and coming filmmakers.  I want to warn you guys that it’s going to be a bit dry… I’ve fallen asleep twice while writing it.  So if you want to read something fun, take another pass at my Avengers analysis.  To kick off the inaugural Filmmaker-2-Filmmaker, I’m going to talk about something that doesn’t seem like a big deal, but it’s an issue that shows up often in documentaries and reality TV: recording phone calls, or, in legal speech, wiretapping.

Normally when people think of wiretapping, they think of this:

A couple of federal agents sitting in an unmarked van decked out with monitors and microphones listening to phone calls made by gangsters.  But in reality, you see it all the time when your on-air talent makes a phone call while being filmed.  In my producing days, we recorded phone calls for a variety of reasons: maybe a phone call made more logical sense to the narrative we were telling; maybe the person wasn’t willing to be put on film; maybe the person lived in another state and we didn’t have the budget to fly cast and crew to that location for an on-camera meeting.  I once produced a show where we filmed a phone call instead of trying to get a live interview because the subject had a history of violent criminal activity and was an accomplished bow hunter.  It would have been great to get him on screen, but it just wasn’t worth the risk to our safety.

So how do you protect yourself if you want to make an on-air phone call because you either won’t or can’t get your subject live?  The very first thing you want to do is make a good faith attempt to get a personal depiction release from anyone whose voice you want to use – yes, even if you’re only going to use their voice and even if you don’t identify them by name. A depiction release should be a major part of any producer’s arsenal and is the best and easiest way to protect yourself legally. [If you need help drafting one, drop me a line. I’m going to tackle the topic of release forms in a future post.]

But maybe the person won’t sign a release form, or you make an executive determination that trying to get a release would be futile.  Then what do you do?

You determine if you are filming in a one-party or two-party consent state.  Here’s why: if you are in a one-party consent state, as long as one of the phone call participants knows you're filming the call and allows you to film it, you will generally not be subject to criminal or civil penalties, even if the other side does not consent.  Conversely, if you are in a two-party consent state, both phone call participants must allow you to film the call; without consent of both sides to the conversation, you could be liable for civil and/or criminal penalties depending on the state.  Let’s take a quick look at some sample penalties for violating the consent laws:

• Massachusetts is a two-party consent state.  A violation of the consent law carries a maximum criminal penalty of five years in prison and a fine of up to $10,000.  Mass. Gen. Laws ch. 272, § 99(C).  Massachusetts also permits civil suits against persons who violate the consent laws.  Courts may award actual damages, punitive damages, attorneys fees and litigation costs.  Mass. Gen. Laws ch. 272, § 99(Q).
• California is also a two-party consent state.  A first violation of the consent law is punishable by a fine of $2,500 or less and/or imprisonment of less than 1 year.  Subsequent offenses carry a fine of up to $10,000 and a 1-year imprisonment.  Cal. Penal Code §§ 631, 632.  Like Massachusetts, California permits civil suits.  Anyone injured by a violation of the consent laws can recover damages of $5,000 or three times the actual damages, whichever is greater. Cal. Penal Code § 637.2. The court may also impose an injunction preventing the use of that wiretapped phone call. Cal. Penal Code § 637.2(b).
• In comparison, New York is a one-party consent state and does not permit civil suits against persons who violate the consent laws.

To determine what type of state you’re in, you should check out the Reporters Committee For Freedom of the Press.  This website is a great resource for video journalists and documentarians.  It has a handy chart outlining which states are one-party or two-party, which states have criminal and civil penalties, and will give you detailed breakdowns of how the law works in each of the 50 states.  I used this site all the time during pre-production and principal photography and I like to think that having this handy resource kept my colleagues and me out of trouble.  It’s such an invaluable tool that I’ve gone ahead and placed it on my Resources For Filmmakers page.

The analysis doesn’t end there, however.  You may be in a one-party consent state, but if you have to make a phone call across state lines, it falls into federal jurisdiction.  In that case, you should assume that a two-party consent law applies, even if you’re making a call to another one-party state.

Unfortunately, if you find yourself in a two-party consent situation and one of the parties won’t consent, there really aren’t many workarounds if you need that phone call for narrative purposes.  In the few instances where that happened to me, I simply made the call off-screen and then staged it later with the information gathered from that call (hey, it’s reality TV!).  I want to give a word of caution here: if you’re in a two-party state and you don’t get consent from the party being called, you cannot simply film the call and drop out the sound later.  The criminal and civil penalties are not generally based on whether the other side’s voice is heard, they’re based on whether you knew or should have known about the consent laws and knowingly violated them anyway.

At the end of the day, producers aren’t lawyers.  Even if you have the best intentions and good information, you can still screw up (i.e. recording an interstate phone call without both parties’ consent).  If that happens, don’t try to lawyer yourself out of the situation.  Call me or an attorney you trust and inform them what happened.  There are always ways to protect yourself, even if you step in it.