The Legal Due Diligence of Filmmaking
Rights Clearance is a critical, behind-the-scenes legal process that every professional film production must undergo. It is the meticulous task of identifying every piece of intellectual property (IP) that appears in the film—from the music on the soundtrack to a piece of artwork on a character’s wall—and securing the legal right to use it. This process is essential for obtaining ‘Errors and Omissions’ (E&O) insurance, a requirement for any film seeking distribution. Failure to properly clear all the elements in a film can lead to devastating consequences, including injunctions that block the film’s release, demands for a share of the profits, or the need for expensive digital alterations to remove the infringing material.
The Expansive Clearance Checklist
The scope of what needs to be cleared is vast. A dedicated clearance team or lawyer will review the script and rough cut of the film to identify and secure permissions for a wide range of items:
- Literary Rights: The right to adapt the underlying source material (a book, play, or article).
- Music Rights: This famously requires two separate licenses: a synchronization license from the music publisher to use the song’s composition, and a master license from the record label to use a specific recording of that song.
- Clips and Stock Footage: Permission is needed to use any footage from other films, television shows, or news broadcasts.
- Art, Photos, and Graphics: Any copyrighted painting, photograph, or sculpture visible on screen requires a license from the artist or their estate.
- Trademarks and Logos: Featuring prominent brands or logos requires permission. To avoid this, productions often use ‘greeked’ products (where the brand name is altered) or create entirely fake brands.
- Names and Likenesses: Clearance is needed to portray real living people to avoid ‘right of publicity’ claims or defamation lawsuits.
Public Domain: A Creative Safe Harbor
The Public Domain is a term for creative works that are no longer protected by copyright law. This can be because the copyright has expired, was forfeited, or never existed in the first place. These works essentially belong to the public, allowing anyone to use, adapt, and build upon them for free without seeking permission. The public domain is an invaluable resource for filmmakers, providing a rich trove of stories, characters, and music that is ‘pre-cleared.’ This includes the works of William Shakespeare, classic 19th-century novels like Frankenstein and Dracula, and films and musical compositions from the early 20th century. Using public domain material can save a production significant time and money in licensing fees.