By Cliff Ennico
“We have a client with a legal question that I was hoping you might be able to answer. He owns a high end electronics business doing home theatre, security, sound systems and the like. For his website he wants to PhotoShop® an image taken from a famous movie scene and place it on the black screen that he has photographed from a room he designed and use it on his portfolio. Would there be copyright infringement or any legal issues in doing that?”
A lot of people are under the impression that just because something is old, you can use it without permission. Sad to say, it ain’t necessarily so. A lot of old things are quite valuable (I include myself among them).
There are really two questions here, so let’s take the easy one first. If your client wants to use a photo from one of his installations on his website, he will first need to get the consent of the home owner, preferably in writing. Some people don’t like their homes being used in advertising, especially if there are personal “touches” (such as family photos in the background) that might enable viewers to identify where the photo was taken.
Assuming that permission was granted, we now have to ask whether he can use the movie clip. I’m assuming we are talking about a classic still image from a famous movie, such as the scene in “Gone With the Wind” where Rhett tells Scarlett he “doesn’t give a damn”, or the scene from “The Wizard of Oz” where Dorothy, the Scarecrow, the Cowardly Lion and the Tin Man are walking down the yellow brick road.
If the movie image is in the “public domain,” your client can use it without having to obtain permission from anyone or paying a royalty fee. In order to figure out whether something is in the “public domain,” however, you have to first find out when the image was created, and then look at the copyright law to find out if the copyright has expired.
Generally, copyright attaches to a work of art (such as a movie) at the moment of creation or first release.
Here are the United States copyright rules for works of art, such as movies, that do not have a specific “author”:
if the work was published (released) before 1923, it is in the public domain (except for sound recordings from this period whose copyright length is determined by state laws);
if the work was published (released) between 1923 and 1977, copyright extends 95 years from the date of publication or first release; and
if the work was published (released) in 1978 or later, copyright extends 95 years from publication (release) or 120 years from creation, whichever is shorter.
But that’s not all, folks. If you’re publishing an image on the Internet, you also have to look at the copyright laws in other countries where the Web page could be viewed. For countries that have signed the Universal Copyright Convention, copyright extends 25 years from publication, while for countries that have signed the Berne Convention, copyright extends 50 years from publication. A useful summary of copyright lengths throughout the world can be found online at http://en.wikipedia.org/wiki/List_of_countries%27_copyright_length.
The 1976 Copyright Act established the “fair use” doctrine, permitting limited use of copyrighted material without having to obtain permission. The doctrine applies primarily to scholarly activities and research (including search engines), to parodies and satire, and to news reporting and journalism. Your client will not, sadly, be able to claim “fair use” if he is using the clip to advertise his business.
It therefore seems quite likely that your client will have to get permission before he can legally use a still image from a movie made in America after 1922.
Where to begin? Your client’s first stop should be the “Rights and Clearances” section of Getty Images’ website (www.gettyimages.com/services/rightsclearance.aspx). Getty owns the rights to many if not most still photographs of famous celebrities. If the image your client wants to use appears in Getty’s database, he will have to pay royalties to Getty. Period. If he doesn’t get permission, he will sooner or later get a nasty letter from Getty Images asking for thousands of dollars for their permission to use the clip. I have represented several clients who have gotten these letters, and the Getty people are downright ruthless about enforcing their rights. In their eyes, there is no such thing as an “innocent mistake.”
If the image does not appear in Getty’s database, your client will have to track down the studio that originally made the movie and get permission from them (for a complete list of studios, see www.copyrightkids.org/permissioninformation.htm#filmclip).
If all else fails, here is an excellent Web page that tells you exactly what you have to do and whom you have to contact in order to get permission to use specific clips: www.reelclassics.com/Buy/licensing.htm.
Cliff Ennico (cennico@legalcareer.com) is a syndicated columnist, author and host of the PBS television series ‘Money Hunt’. This column is no substitute for legal, tax or financial advice, which can be furnished only by a qualified professional licensed in your state. To find out more about Cliff Ennico and other Creators Syndicate writers and cartoonists, visit our Web page at www.creators.com. Copyright 2013 Clifford R. Ennico. Distributed By Creators Syndicate, Inc. Follow Cliff: @cliffennico.
