This month, Jill Alofs, a rights and clearances professional, presents a general introduction to content clearance concerns. In a follow-up article in our Aug./Sept. issue, she'll focus on the specific issues involved when using Japanese content in new media technology.

Multimedia and New Media Technology Clearance Issues


The basics of the rights clearance process -- what needs to be cleared, and how to do it -- are applicable worldwide. Use someone else's copyrighted material in your company's Web page or PR video without their permission, and you could be setting yourself up for a day in court.

If you plan to use an American film clip, European song, or Japanese anime in your next product, here are some points to consider.

by Jill Alofs

The process of creating a multimedia product that reuses pre-existing material can be both overwhelming and time consuming. Most developers and producers understand that they must obtain permission to use copyrighted film clips, music, or photos, but many are uncertain as to when or how to secure that permission. If handled properly, however, it is possible to achieve this goal without breaking the project budget or creating an on-going headache.

Staying legal

Why do producers and developers of CD-ROMs, CD-Is, Video on Demand, Internet content, and other forms of new media technology want to include pre-existing content? The reasons vary. It may be that the developers have found the perfect film clip, one that captures the very tone and feeling that they are seeking to convey. Or it may be that they need to include television, film, and video clips that illustrate their points. Some producers might be creating historical products that would be enhanced by adding period music or photos from that era. In other words, the reasons for including pre-existing content into a new product are as endless and creative as each developer. The bottom line, though, is the same for everyone: What steps are required to legally include the content, and what will it cost?

There are numerous items to consider when clearing rights to existing material for use in another medium. "Clearing," or "clearance," means confirming that a pre-existing piece of material is available for use in a new product, either by obtaining permission for the new use or determining that permission is not required. Whether permission is required depends upon the facts of the particular situation, and each potential reuse presents its own set of concerns that need to be addressed.

To date, there are no set reuse fees or structured outlines that can be followed to ensure you have fully cleared all your selected pre-existing material for all the uses and territories you need. However, if all the clearances are not successfully obtained, you run a variety of risks. You might find an injunction placed against your product by a rights holder you didn't even know existed, or you might be threatened with litigation by a disgruntled performer who was inadvertently overlooked in your identification of clearance concerns.

So, what do you do?

The basic clearance procedures

One of the first items I suggest to any multimedia producer/developer considering using pre-existing material is to identify all the intended uses for the multimedia product. I encourage them to look into the future: tell me what they expect to happen with their game or new title, and what they dream will happen with it. This enables me to have a better understanding of their wants and needs, which dramatically assists my negotiations in obtaining the clearances.

Only after all the potential uses have been determined is it time to pursue the following basic clearance procedures:

Identify the clearance concerns: Once all potential issues have been identified, it is important that you determine, for each item, whether to clear the material, to assume the potentially vast risks of not clearing it, or to edit the material (which may alter the content) to reduce the necessary clearances.

Develop a clearance strategy: The next task is determining how to locate the appropriate parties involved in the re-use, and whom it may be best to contact first in this regard (for example, guilds/unions, managers, agents, or the individual copyright holders). In addition, you should recognize at this stage that permission may not be granted for some material. Try to have alternatives in mind in the event that permission for your preferred choice is
denied.

Approach rights holders: When you have identified the "best" party to deal with for each item, it is then time to establish the most effective way to present your reuse request. This might be as a letter, an initial informal phone call, a specially prepared form, or other appropriate means.

Negotiate clearances for the intended usage: The final negotiation stage can be tricky. I think experienced instinct is most helpful here, as there are many items to consider (such as buyouts, royalties, favored-nations policy, and especially the possibility that permission for reuse might be refused).

Things to consider

There are numerous questions to consider at every step of the clearance process -- for each usage, each territory, and each product. Overlooking even a single clearance consideration can be detrimental to your project and your budget.

Consider the case of sports footage, for example. If you want to include a 30-second baseball clip in your game CD-ROM, there are numerous issues involved that are vastly different from the issues of film, television clips, or photos. To reuse that sports clip, you'll need to obtain not only copyright clearance, but clearance for all the viewed players, coaches, umpires, logos, and trademarks, permission from the teams and the league, etc. And if you do any editing that may constitute altering of the content, that must be cleared as well.

You may have acted in good faith and identified all the people you thought you needed to clear, but if you missed a player or an advertiser on a billboard, or overlooked a logo issue, you run the risk of infringing upon another's rights. And the rights holders could decide to seek a settlement for damages as a result of your unauthorized use of their content, even though you did not know they existed or that they retained any rights to the material.

Please note that the rights of artists, and their moral rights, are strongly enforced in Europe. This is an especially important issue to consider if you plan to alter content in any way. And the rights of individuals (actors, sports players, etc.) are strongly enforced in the US, as are most of the other rights pertaining to content and rights holders. If you plan to distribute your product throughout the world, you are held responsible for knowing all of the various countries' rights issues and not violating them.

Essential questions

I cannot stress enough that, in the end, it is you, as developer or producer of a multimedia product, that is responsible. You may be held liable for any inadvertent infringements upon uncleared material, even if you did not know that the violated party retained any of the rights.

For clearing and negotiating purposes, keep in mind the following essential questions:

* Where do you plan to distribute your product, and for how long?

* Will you alter the content and, if so, in what manner?

* Are there moral rights issues that should be addressed if you are altering any of the content (e.g., colorizing film)?

* How flexible can you be on your content choices? Must you use the exact film clip or photo you have chosen, or can you select an alternative should your first choice prove too costly or impossible to clear?

* Have you allowed enough time in your production process to obtain clearances on all the material you wish to use?

It is the product developer who ultimately has the responsibility for addressing the various complexities associated with reusing pre-existing content. Even though the clearance process can be a bit tricky and time consuming, such material can be a wonderful, manageable source of additional creative material for your project.

Some good advice

I would advise that you consider what type and range of pre-existing material you may want to include into your product as early as possible. Even if you eventually decide not to use the content, at least you can make informed decisions early in the production process. If you don't begin to consider using pre-existing content until later on in the project, it becomes far more difficult to identify the issues, locate the parties, and negotiate the deals while keeping to the often-tight production/development deadline.

One option you have as a producer or developer is to work with professional clearance companies who routinely perform these tasks and thus know just what issues to consider, who to contact, and how to negotiate the best deals on your behalf as quickly as possible. Not only can this assistance often save you a great deal of time and money, working on a project with a clearance professional also helps you to better understand the clearance process.

Since there are no set rates for reusing material in new media technologies, it is probably cost-effective to hire an expert who works with guilds and unions daily, and thus may be able to obtain far better prices and deals than you would on your own. Simply by the very nature of their professional relationships and the volume of work that they perform with various associations on a yearly basis, clearance professionals can help bring your project to fruition more quickly and cheaply than you could by yourself.

Finally, I would suggest that, if you are a producer or developer, you consider all the types of pre-existing content as a huge reservoir of resource material. With some preparation time and proper planning, pre-existing content can prove to be an invaluable addition to your next product, exhibit, ad, or promotional spot.


Jill Alofs is an internationally recognized speaker and author on the topic of rights and clearances. After developing her expertise in clip clearance at Lucasfilm Ltd. and LucasArts Entertainment Company, Ms. Alofs founded Total Clearance over four years ago. Total Clearance (http://www.totalclear.com; e-mail totalclr@linex.com; phone +1-415-389-1531, fax +1-415-380-9542) offers services for reuse of all types of film, video, music, photographic, text, and celebrity rights and other materials in all media, specializing in multimedia rights and World Wide Web site clearances.

Sidebar

It is important to realize that within the basic clearance steps described in this article, there are numerous subcategories which vary greatly on a case-by-case basis. For example, when you initially try to identify all the clearance concerns for your project, what areas need to be addressed? Consider the following partial general list of rights holders:

* Copyright holders

* Publishers

* Actors and actors' unions

* Stunt performers and their union

* Musicians

* Music publishers

* Master recording rights holders

* Directors

* Writers

* Photographers

* Museums

* Sports figures/players

* Logo and trademark rights holders