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Erring on the Side of Caution Best Bet for Inclusion Rules A usual requirement of errors & omissions insurance for a motion picture is that the producer's clearance procedures be overseen and reviewed by production legal counsel. In most cases, the services provided by production legal counsel will include a review of a copy of the production, which preferably occurs at the rough cut stage to allow changes to be made if necessary. It is a common occurrence that some material for which the producer does not have permission will end up in a production and in many cases the inclusion of such uncleared material is accidental and incidental to the production. The legal review of a film involves confirming that the producer has secured permission to include any and all protected material in the production, normally meaning material protected by copyright and trademark. Examples of uncleared material that regularly shows up in productions ranges from storefronts to advertisements on buses or buildings to crowds of people attending a public event. The default rule from which to start is that permission is required for any and all materials included in a production. This includes all source material on which the production is based and all images and sounds embodied in the production. From that starting position, various exceptions may be relied on to remove the need to acquire permission from rights holders. Imagine a scene included in a documentary that was shot in a convenience store. It would be virtually impossible to get permission for all copyrighted material appearing in the shot, which could include items as minor as a gum package or a credit card logo displayed on a till. One exception to copyright protection contemplated in the Canadian Copyright Act is the concept of "incidental inclusion." Section 30.7 of the Copyright Act states that "[i]t is not an infringement of copyright to incidentally and not deliberately include a work or other subject-matter in another work." This means that a producer may in some cases include copyrighted material in a production as long as the inclusion is incidental and not deliberate. What is extremely difficult in relying on the incidental inclusion exception is determining what will be considered both "incidental" and "not deliberate" as there is little to no case law to rely on in this respect. It is unclear at which point the deliberateness of an inclusion matters. Consider an example in which a producer films a scene and incidentally captures The O.C. playing on a television in the background or Barry Manilow playing on a stereo, both of which are protected under copyright. If, in the example, the producer did not deliberately capture the copyrighted material, which is incidental to the scene, could it be retained in the production without seeking permission from the copyright holders? The legislation is not clear at which point the deliberateness of the act of the inclusion should be analyzed. Is it the point at which the image is captured or the point at which the production is edited and released? Typically,
relying on the incidental inclusion exception to copyright infringement
is dangerous territory and any material included under this exception
must be analyzed carefully. Clearing all material as much as possible
is always the best route and if some uncleared material is retained,
erring far on the side of caution is recommended. Making changes
once the production is completed can be expensive and the cost of
a lawsuit even more so. The answer to the question of what needs
to be cleared is everything.
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