Script clearance: A legal must-know for filmmakers and digital creators

Consider script clearance prior to discussing with producers or production companies.

Simply put, script clearance is the process of identifying and addressing any potential legal risks in a film or television script. This includes things like copyright infringement, trademark infringement, right of publicity violations, and defamation. It's a vital step to ensure that a film or TV show doesn't inadvertently infringe on someone else's rights.

The exercise of script clearance is important for a number of reasons:

1. First, it can help avoid cost lawsuits down the road. A majority of filmmakers even today are unaware of the legal complications that may arise when going ahead with a non-vetted script for production.

   If a production company uses copyrighted or trademarked material without permission, or if it defames someone, it could be sued for a heft penalty.

2. Second, script clearance is required by most distributors and insurers. Before a distributor agrees to distribute a film or television show, it will typically require the production company to provide a script clearance report. This report is a legal document that confirms that the script has been cleared of any potential legal risks.

But what are the points to consider regarding script clearance?

1. Copyright Law: Having a basic, practical understanding of copyright law is fundamental for a creator or filmmaker in today's digital era. It's extremely essential to determine whether any part of the script involves copyrighted material, like books, songs, or artwork, and to secure the appropriate permissions or licenses. Ignorance of the same has previously resulted in copyright infringement suits that cost the producers/filmmaker millions of dollars as penalties.

2. Trademark Usage: If the script includes references to specific brand names or trademarks, obtaining clearance is crucial to avoid potential trademark infringement claims. Sometimes, the negotiations are as simple as securing a No Objection Certificate, but for most part, it is similar to a regular business transaction between to corporate entities, involving monetary considerations, mandates to follow brand guidelines and other relevant factors. The last thing a filmmaker would want is to incorporate a trademark on the screen for impact or storytelling but eventually getting caught in a legal battle, that may end up delaying the release, beyond his control.

3. Defamation and Privacy: It's important to be vigilant about the content in your script to prevent defamation claims. Any references to real individuals should be done with care to avoid privacy issues.

   In 2014, the film "The Wolf of Wall Street" was sued for defamation by a lawyer and investment banker, claiming a notable character in the film was based on him without his consent.

4. Location Permissions: Filming in real-world locations requires proper authorization. Obtaining location releases is necessary to prevent legal issues during production or post-production.

   This exercise is mostly usually conducted with other stakeholders in discussion, such as a Line Producer/Production Manager who can advise on various dynamics related to permissions being granted for the relevant shooting locations. As best practice, we recommend strategizing according to the situation and be prepared with all the necessary documentation that can come in handy during police verification, administrative approvals, etc.

5. Fair Use: Understanding the concept of fair use is vital. Some copyrighted material may be used without permission if it falls under the fair use doctrine, but it's a complex legal area that requires expert guidance.

   Assuming that one's usage constitutes fair use without having the script cleared by an expert, may bring unwanted consequences that may even end up shelving the project all together. Our counsels can help you pave the way for your script by conducting a thorough evaluation regarding fair use of copyrighted material which helps creators ensure their work sees the light of the day.

6. Chain of Title: Establishing a clear chain of title is crucial for securing financing and distribution deals. Ensuring that all necessary rights have been acquired for the script is a priority. Who owns what, contributes, in which capacity and what all can be exploited are extremely important questions to answer during a film's journey. Developing a sound legal process and strategy to overcome any complications is strongly recommended.

Simply put, while script clearance can be meticulous and time-consuming, it is nevertheless an imperative part of the creative process. By addressing potential legal issues before production begins, you can save both time and money while safeguarding your creative project.

script clearance can be meticulous and time-consuming, it is nevertheless an imperative part of the creative process.

How to clear your script

There are a number of steps that production companies and creators can take to clear their scripts:

1. Hire a qualified entertainment lawyer to review the script and identify any potential legal risks.

   Our practice is designed for creators, artists and production companies to benefit from during their path-breaking IP journeys and safeguard their interests.

2. Obtain permission from the copyright and trademark holders of any copyrighted or trademarked material that is used in the script.

3. Obtain release forms from any real people whose names or likenesses are used in the script.

4. Make any necessary changes to the script to address any potential legal risks.

If you have any questions about script clearance or would like to discuss this further, please write to us namaste@namamilaw.com.