Legal Question in Entertainment Law in New York

I recently produced an independent feature film that will be shown in festivals and (hopefully) gain distribution. There were a number of improvised bits that made it into the movie, and I wanted to make sure all were legal:\n- A character sang a song to the tune of \"Tonight, Tonight\" from West Side Story, but with completely changed words. Does this count as parody?\n- A character hummed the first four notes of \"The Final Countdown.\" Is that enough to qualify?\n- A character spoke/sung the first line from \"You Took the Words Right Out of my Mouth\" by Meatloaf, but did not use the melody at all. Is just a spoken line protected?\n- A radio can be heard for under a second in one scene. I can\'t recognize what song is playing at all. Do we need to worry about this?\n- One of the characters played with an action figure that we found in a park in which we were shooting. It turns out it may be a Luke Skywalker figure without the accessories. Do we need to be worried about this? Does it matter if we never show it up close?\n\nThank you in advance for your answers!


Asked on 7/31/09, 2:36 pm

3 Answers from Attorneys

Adam Hirshfield Adam E. Hirshfield, Esq., PLLC

looks like you will need a number of licenses for your picture. Please contact me if you'd like help with this. Best way to reach me is via email at [email protected]

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Answered on 8/05/09, 2:46 pm
Steven Mark Steven Paul Mark, Attorney at Law

The simple answer is clear songs that are identifiable and for which a fair use or de minimis defense can't be asserted. Studios would clear everything in sight whether it was legally necessary or not but indie films, while no different legally, are usually giiven some slack. Specifiically, however:

"Tonight, Tonight: While you may be usiing it as a parody, you're doing it in a highly commercial media. However, you still may be able to assert 'fair use.'

"The Final Countdown:" Iprobably shoulld clear it.

Meatloaf - That's a distinctive line, hence copyright issue may arise.

A radio can be heard: Probably not a problem

Luke Skywalker figure without the accessories: probably not a problem

Despite the above, you really should consider retaining an sttorney to review the film. To distribute, you will eventally require errors and omissions insurance and the carrier will require an attorney to have "cleared" the film..

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Answered on 8/05/09, 3:20 pm
Donald W. Hudspeth The Law Offices of Donald W. Hudspeth, P.C.

What an interesting question! Unfortunately it is too complex to answer definitively in this forum. I can give you some pertinent nformation: As you may know factors that courts look at in determining whether the user has "fair use" (that is the right to use without license) include:

1. manner of use, e.g. commercial (for $$$) or instructive, like teaching

2. transformative, does the work add something new, with a further purpose, or different character, altering the first with a new expression, meaning or message (e.g. 2 Live Crew's commercial parody of the Roy Orbison song "Pretty Woman". New meaning was "life on the streets not so pretty").

3. Parody, subjecting the original idea to ridicule or at least a comment on it.

4. What was taken? Most of something, or the heart of something, or something incidental.

Can't tell you what a court would decide. As the plaintif's lawyer I would focus on the commercial use, lack of comment or critique implied on or against the original and the recognizability of what was taken and used. For defense I would argue not take whole song like 2 Live Crew did, but only a few notes, minimal recognizabiity if any, and then tranformed into something different entirely with different meaning and expression. Unfortunately, on the practical level, however, it is all about money. I would expect a claim for money and your need for money to defend and or settle.And you don't have the defense that the film is not for money because it is. (Sorry).

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Answered on 8/05/09, 3:25 pm


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