How long does a guy have to be dead?
Copyrights and permissions are the bane of documentary producers. Works over 70 years old usually become public domain, but what about people? How long ago does someone have to die before you need no permission from the family to produce a work about him? Would I need family permission to produce a piece about Teddy Roosevelt? Ty Cobb? Edgar Casey? Marilyn Monroe? Richard Nixon?
[steve siegel] "How long ago does someone have to die before you need no permission from the family to produce a work about him? "
How long do they have to be dead? Zero. Works of all kinds (movies, documentaries, television shows, magazine articles, and just about every other medium) are produced about recently-deceased as well as still-living persons both with and without their permission every day. The biography section of your nearest bookstore has shelves and shelves of volumes that will include the words "...an unauthorized biography" on the cover.
It is, of course, easier to get sued by a living person, or by the estate of someone recently deceased... for libel, defamation, or slander. Of course the defense for libel is that what you say is "provably true" (key word being provably)... so in theory you're in the clear as long as whatever you say about someone is true and you can prove that it is true. I say in theory because anyone can still sue you for just about anything. You might win, but there's still the hassle and the expense of defending a lawsuit.
Fantastic Plastic Entertainment, Inc.
[Todd Terry] "The biography section of your nearest bookstore has shelves and shelves of volumes that will include the words "...an unauthorized biography" on the cover....It is, of course, easier to get sued by a living person, or by the estate of someone recently deceased"
Not always true. Speaking in super-broad strokes, there are 3 principles at work.
The first is "personality rights," which basically stipulate that a person **or their estate** has certain specific rights over how their likeness can be used commercially. Even though he's not a citizen, Putin has the right under US law to prevent his use as soap on a rope.
Now, again speaking generally, politicians including your mayor, actors including the star of your community theater, they've all yielded the right to privacy of their likeness -- except not commercially. No soap on a rope.
This won't apply for the body of your documentary - but can for use in trailers, boxes, etc., because at THAT point, the image has commercial value.
Note that this varies by jurisdiction, but in almost all of them, that right is indeed inheritable. Are there heirs? Is there an active estate? There will be money in play.
The second consideration is copyright for images that you can generally get your hands on. For the people you named, Steve, most images of the images of them are subject to copyright by Reuters, AP, Getty, etc.
There are no widely available pictures of, say, Teddy Roosevelt or Thomas Edison that aren't subject to very strict commercial licensing, often by Getty Images. Likely for what you have in mind, the rates aren't out of control, though. A few hundred to the low thousands for most, and Getty tends to be at the top of the range.
The third general consideration is trademark law, which starts to spread the net really really wide. For example, Getty owns the rights to Michaelangelo's David, even if you took the picture yourself, so easy one-stop shopping for all your clearance needs -- but the Empire State Building holds its own trademark. They typically only invoke this for overtly commercial use...but don't try to create a documentary on the building itself, or use its image front and center in your trailer or cover.
In addition to general rights under personality law, and copyrights for images that you can usually lay your hands on, a number of dead celebrities are covered under *trademark* law, which, as long as the trademark holder keeps it alive, never, ever expires. Albert Einstein bequeathed rights to his image to the Hebrew Univerity of Jerusalem, which shares royalties with Princeton's collection of Einstein's papers. Albert had actually trademarked his image while alive, and very actively licensed it for commercial use to raise money for a number of causes that were very dear to him -- so you can't even assume that LIVING people aren't subject to this too.
So, you want to do a fictionalized movie of Einstein? No problem. (I recommend IQ, starring Walter Matthau.) Write a book? No problem...as long as there are no pictures of him. So if you want to do a documentary that you get paid for, and it has pictures of Albert in them, you probably need to speak to Hebrew University.
Again, the amount you'll pay will go through the roof if you want to use the image directly as part of sales or marketing, and often will not be given under ANY circumstances.
Elvis Presley Enterprises manages Elvis's rights. They're more flexible than you might think, but don't even think about not asking first. Unless you find a photo in your mother's scrapbook or something, every image of him that you can typically get your hands on is copyright AND trademarked.
And if a deceased celebrity is performing in an image, other trademarks may apply. You can guess that's true for Elvis at the Hilton, but the Fillmores? Above the rights held by any of the performers, Bill Graham's estate owns the rights to EVERY image taken there, even if the subject of photo is cleared for your use. Bill's been dead a while, and the Fillmores have been closed since the 70s. Doesn't matter.
That's starting to veer back into the overtly commercial - of COURSE the Fillmores were trademarked - but it absolutely applies to individuals other than Einstein. Marilyn Monroe, Walt Disney, Mark Twain, WC Fields, Charlie Chaplin -- personality rights apply in different degrees, copyright of most images, but trademark most DEFINITELY applies to ALL of those examples. Even if you're cleared for copyright, you go through a different process if they wind up on the cover or the trailer.
Want to roll the dice on the Disney estate not tracking you down? Marilyn? I doubt that IBM holds any unique rights to Chaplin's image, but you're rolling the dice TWICE if you don't know for sure.
(You may be too young to remember the IBM campaign with Chaplin's Tramp character. I have no idea what they were thinking.)
Final quick notes:
--"Unauthorized" refers to the book being *written* without the involvement of the subject. Words yes, pictures no. Check even the cheesiest of them though - every image has been licensed.
--Following the Bill Graham example above, Ty Cobb's image is one thing. Trademarks apply to his uniforms separately, held by MLB for sure, and maybe the team too.
--Saying you're a student will NOT get you off the hook. Those outrageous file sharing penalties against students are being slashed, but only after massively expensive fights...but there are still serious penalties...and I'm not aware of any of those findings being overturned altogether.
There are indeed a buuuuunch of exceptions to all of this under fair use...say, as a student doing a project for **class** -- but as discussed at extreme length in this forum, the concept of fair use gets pretty fuzzy once money changes hands, and vanishes once you've made ANY image of these people (or David, or the Empire State Building, etc) the center of your trailer, cover, commercial, whatever.
Not that you can't get permission. You obviously can. People do every day, and often for no money. It's just that you can't make general assumptions, because there are precisely zero that apply. Other than the assumption that you have to tread lightly until you know where you're stepping. That one applies.
As usual, your mileage will vary, but another general assumption: paying a lawyer and rights clearances is cheaper than buying a new house.
Interesting note, Tim, but I suspect ("suspect" - I don't know for sure) that the fair use doctrine is a lot more powerful than you indicate. And I "suspect" that there are many public domain images available (for example, in the Library of Congress Prints & Photographs section) for even the most famous and "trademarked" people, which would be useable in a fair use context.
If you look at the Wikipedia entry for "Einstein tongue" there is a good discussion of one of the most famous images of Einstein. There are also very good websites about the fair use doctrine. It's important for documentarians to keep testing the limits of fair use. imho, trademark and copyright laws has gone way too far in this country, and have unfairly limited the freedom of writers and filmmakers to examine famous people in their work. (And it's even weirder when it comes to patents. When the average person doesn't even own the rights to his or her own biological cells, you know The Man has gone too far.)
But you can spend, and waste, a lot of energy (and money) fighting these battles. And you're safer listening to everything Tim says! Unfortunately.
Sorry for the length of this, but we're covering important ground that we've never touched in our 10 years of Creative COW. (BTW, did you catch that Creative COW turns 10 in April?)
First, to make sure that we're staying on track, I'm not talking about fair use *in general.* This is about the use of a personage, complicated by the fact that many of these personages themselves are trademarked.
So, whether or not the image itself is in the public domain, or even owned entirely by you, the CONTENT of the image is still subject to restriction.
[Bob Cole] "I suspect ("suspect" - I don't know for sure) that the fair use doctrine is a lot more powerful than you indicate....There are also very good websites about the fair use doctrine."
Search "fair use" in the COW, and you'll find a ton of such links, most of them from me.
An entirely apolitical, non-judgmental observation: one effect of courts being increasingly "pro business" is that the rights of corporate interests are expanding. What you thought of as fair use just a couple of years ago has certainly been curtailed, and in some cases, could be gone altogether.
On the flip side, as you point out, Bob, people are pushing back. I highly recommend looking into Creative Commons on this front.
But I can tell you this for sure: as every monkey with a camera and cheap software starts to make documentaries, and the rights to iconic people and their images are tied up....well, combine scarcity with demand, and you can see why licensing fees are going up. Rising prices incentivize additional historic images and personages being snapped up.
But in (very, very) general, once you invoke fair use as in, "it should be fair for me to use this in a project that will make me money," it's almost by definition NOT fair use anymore.
[Bob Cole] "there are many public domain images available (for example, in the Library of Congress Prints & Photographs section) for even the most famous and "trademarked" people, which would be useable in a fair use context."
Again, you can use the images without paying for licensing, but the specific uses of them is still subject to the rights of the holder of that person's trademark. That's why I used the example of a picture of Elvis in your mom's trunk in my first post. You don't need anybody's permission to use it...unless you use it commercially. In which case, fair use ends. Licensing of the PERSON kicks in.
A specific image of Elvis, yours. Elvis's image, not yours.
Side note on Elvis: although Elvis Presley Enterprises owns the rights to Elvis's persona, his images, etc., many specific instances of those are owned by people like Sony and MGM who got there first. To be specific, MGM owns the MOVIE "Viva Las Vegas," and Sony owns the RECORDING of "Viva Las Vegas." So if YOU want to use Viva Las Vegas, you have 3 phone calls to make...and even if Elvis himself (so to speak) wants in on the action, he has to make 2 phone calls.
In the real world, EPE, MGM and Sony all get along nicely, for obvious reasons....and will step in quickly if you try to sneak by, for equally obvious reasons.
That said, there's a TON of free stuff available through the LoC. It's your library. Use it. Great, great reminder Bob.
Here's a link you can lose yourself for hours in, the Library's picture collection. http://www.loc.gov/pictures/
[Bob Cole] "If you look at the Wikipedia entry for "Einstein tongue" there is a good discussion of one of the most famous images of Einstein."
True enough, but at the end of the day, there's no real debate: Corbis is the license holder of virtually every known picture of Einstein, and beyond those, his persona as well. Start by learning more at einstein.biz.
That's DOT BIZ. And fwiw, this is the ONLY official website for Einstein. Dot com rolls over to dot biz. No kidding.
GreenLight Rights started as the rights management division of Corbis, and has been spun off as its own company since (I think) 2008 or so. Here are the other TRADEMARKED PEOPLE they manage:
The Wright Brothers
This is from the FAQ, my emphasis added:
GreenLight exclusively represents the estates and people on our roster. Any commercial use of their name, likeness, quotations (i.e. their “persona”), trademarks or copyrights requires clearance and a license from GreenLight. Each request is evaluated on case-by-case basis to determine if it conflicts with existing licenses and/or is a good “fit” for the brand, and all requests are ultimately reviewed and approved (or disapproved) by the estate or property representative.
Note that quotations are managed too! And why not? The work that any of those folks did is easily covered under the most pro-artist interpretation of copyright law. (Aldrin is still alive of course.) There are some things that you can do with those words, and some things you can't. Assume nothing.
So let's start with the Wright Brothers. They donated 300 plates and 2 nitrate negatives to the Library, most of them taken by the brothers themselves. AWESOME images in the public domain.
And yet, the Wright Brothers rights are managed by GreenLight. Many of the specific images you'd want to use are wrapped up, outside the Library of Congress. And their personas as a whole are wrapped up. When the Post Office issued Wright Brothers stamps, they had to secure the rights from GreenLight...to use images from the Library of Congress...for commercial purposes.
Your rights as a straight-up documentarian are indeed more fluid, but not if you put a picture of the Wright Brothers in a trailer, on a cover, a poster, a web banner -- ANY commercial use, you need a license.
To put it another way with regard to copyright images of NON-trademarked people, you have some wiggle room...although not as much as you used to. In the specific case of documentary material related to TRADEMARKED PEOPLE, commercial use cancels out fair use.
See what I mean? This is copyright + trademark, cubed. Standard considerations of fair use just don't apply to TRADEMARKED PEOPLE in the same way.
Let's climb a little further up the tree. I mentioned that GreenLight is a Corbis company, so let me note a couple of collections that Corbis itself manages, including the 11 million piece Bettman Archive - everything in the Hermitage Museum in St. Petersburg, the National Gallery in London, all of the Smithsonian museums, Playboy and Ansel Adams - just to get started. A teeny tiny sample, some of which goes back hundreds of years.
Now, Corbis is privately owned by Bill Gates - a generous man who has already given away more money than anyone in the history of the world, and he's nowhere near finished....and from what I hear, a pretty aggressive guy. I have no idea how active he is in picking Corbis's fights, and as you can tell, I'm generally a fan of Bill's... but my point is that once you start poking at the images and quotations of a historical person, you have NO IDEA whose nest you're poking until you KNOW.
How geared up are you for a fight with Corbis over whether or not the image you got from the internet, an image of one of their paying clients, is in the public domain? Like the sign says, call before you dig, man.
Another example from Steve's original post: Tyrus Raymond Cobb. Got this picture from the Library of Congress. It's in the public domain. Awesome!
Well looky there, a Detroit Tigers logo. But of course - Cobb played 22 seasons for the Detroit Tigers. (What?!? 22 seasons?!?) Can't make a Ty Cobb documentary without a Tigers logo. Can't be done. So, this is from the official page for Detroit Tigers history, my emphasis added. http://mlb.mlb.com/det/history/index.jsp
The following are trademarks or service marks of Major League Baseball entities and may be used only with permission of Major League Baseball Properties, Inc. or the relevant Major League Baseball entity:...the names, nicknames, logos, uniform designs, color combinations, and slogans designating the Major League Baseball clubs and entities, and their respective mascots, events and exhibitions.
Shiny public domain image, check. Secured rights from MLB and "the relevant MLB entity?" Gotta make a few more phone calls.
This isn't always just about evil corporate bastards trying to get in your way. WC Fields is repped by his 5 grandchildren. They WANT to keep the spotlight on him and his work, and have been at the front of the line pushing to make his writing, annotated scripts, letters, etc. available to libraries, researchers and more. Nobody will work harder for you than WC Fields Productions. I love these guys.
But as with the example of Elvis Presley Enterprises above, Universal still owns the WC Fields movies themselves, and like WC Fields Productions, has every interest in restricting your COMMERCIAL use of that work, including derivative uses.
Look, folks like the Fields family can be very accommodating if they get what you're trying to do. But they don't have the final word on everything. Universal does, and your life is going to be easier if you have the family pushing on your behalf, rather than if the family is standing WITH Universal, pushing AGAINST you.
[Bob Cole] "imho, trademark and copyright laws has gone way too far in this country, and have unfairly limited the freedom of writers and filmmakers"
While I understand the original intent of limiting the lengths of copyrights to keep ideas free, I feel like we've gone far enough by not allowing *ideas* to be protected at all. Anyone can take your idea -- ironically, lamented in this forum at least once a week. People ask how to protect their ideas, and the answer is, you can't.
That's a good thing. It's how you wind up with more than one brand of car. But as Mark Twain observed in his testimony before Congress on copyright law (read it - both razor-sharp and hilarious), it's outright theft to strip a man's family of their rights to Grandpa's work. He can pass down his house, but not his work? Laws SHOULD protect people's rights. What else are they good for?
That's copyright. As vigorously as anyone cares to disagree about copyright and my views on it, trademarks only expire when holders fail to protect them.
That is, trademark holders are REQUIRED to protect their trademarks, or lose them. So the question isn't how much it's worth to, say, Disney, to block your use of Walt's picture in your low-budget documentary. Pennies. The only relevant question is, how much is EVERY use of Walt's picture worth to DISNEY. Because that's what's at stake every single time for them -- their ability to ever maintain any control over Walt's picture, ever. Millions, if not billions. They. Will. Hunt. You. Down.
And again, this is not using the Disney logo or Mickey Mouse. Nobody thinks that that's fair use. Right? But a picture of Walt kissing your mother when she was 6 years old that your grandpa took - well, Walt himself is trademarked. There are limits. Walk softly, because THEY have the big stick.
Walter Elias Disney is the most extreme example I could come up with, to make a rhetorical point. It's not impossible for you to secure documentary rights. People do it every day. But you can't take these considerations for granted, or say that you can get away with it because you're a student (see further: file sharing), or that it's for a good cause, or that you think it's definitely fair use.
While I agree in principle that we should be holding the line on fair use, I also feel that we should also be the fiercest protectors of the rights of artists to exclusively control the rights to their work...and the rights of anyone to their personage.
The law aside, I don't see that karma leaves much wiggle room on this one. Are you the guy who will ask as much permission as is reasonable, or the guy who will try to get away with as much as possible?
Your mileage will vary in spectacular fashion.
[Bob Cole] "And you're safer listening to everything Tim says! Unfortunately."
I have more than once been described in this very manner.
Some of this is just POV. Taking the POV of the creator, Tim likes IP law; taking the POV of documentarians, I don't.
It's fairly sympathetic to think about Mark Twain and his heirs, but the big beneficiaries of our IP system are not quite so warm and fuzzy. In practical terms, the only entities (and usually not actual "creators") who benefit from current intellectual property law are those with the resources to defend them.
re Twain's analogy to the ownership of a house: There's a big difference between IP and real property. Real property rights are democratic; there is a framework of law which supports the rights of the poor homeowner (theoretically) the same as the rich homeowner. But intellectual property is inherently anti-democratic, because its enforcement is left to the owner, and only the "haves" have the ability to defend it.
imho intellectual property law has gone way too far. It inhibits free speech, including scholarly writing; it's fairly commonplace for serious biographical works to be eviscerated and not even published, because the correspondence between two historic people has become a commercial property and can't be quoted. Martin Luther King's family has notoriously defended their commercial rights to the "dream" speech. (I was in a central Mexico town recently, and the CD sellers on the street were blasting a rap song liberally quoting the actual recording of the "dream" speech. I'm pretty sure it was illegal. It was startling to hear King's words and voice, and I realized that I'd been missing it because the legal tie-ups had so constricted its use. I think there should be a "new rule": if the nation declares a holiday in your name, you should give it your public speeches for FREE.)
I hope that intellectual property law evolves further in the direction of fair use, much as real property law has changed. Society has come to recognize the concept of a "bundle of rights" to real property, rather than one single right. There is no absolute right to real property; when it benefits the community to take your house for a road, it gets taken by eminent domain. You can't use your house contrary to zoning. When Your Rights to real property conflict with Society's Rights, you lose.
Look at "Strictly Background," a film about movie extras which liberally uses clips of major Hollywood movies (including their stars) to tell the story of the movie extras who just happen to be in the same field of view as Tom Cruise, etc. The studios first told the filmmakers that they would have to pay mega-thousands for permission to use clips in which the extras appeared. After consulting an attorney, the filmmakers discovered that no payment to the studio or Cruise was necessary, because part of their story involved relatively penurious actors who provide the "background" for big stars. Fair use can be powerful, and we need to exercise and enforce it, lest serious independent documentaries become even more endangered than they are.
Question. You note that "commercial" use is forbidden; are you drawing a distinction between the content of a piece (e.g. a doc on Ty Cobb, using historic images and various MLB logos) vs. putting Cobb's face and the logos on the poster? Or, are you saying that ANY use of such images is subject to licensing?
Another question, Tim. When a major news organization uses a celebrity image or an image of a trademarked figure, do they have to pay the same licensing fees? Or is there an exception for major media to exercise "freedom of the press"? I don't think that Time Magazine has to pay a dime to put any person they want on the cover - just the rights holder to the physical image. (Independent documentarians, with their lengthy production timelines and without the cachet of being "major news orgs," have a very uneven playing field.) Given the evolution of the Internet, where bloggers and anyone with a website or a YouTube video becomes part of a very different media landscape, do you think that the "news exception" will become broader, or more restricted?
Nobody has simply directly responded to the question in the original subject line, but I'm pretty sure that the answer is "forever." I hope we don't have to put up with abusive intellectual property restrictions quite that long.
I'm speaking strictly from the perspective of documentarians. It's how I made virtually my entire living for years. For the purposes of this discussion, though, I have no moral judgments to pass on the law. My intent was always to be a documentarian who didn't lose his house by failing to perform due diligence on clearances.
My one and only point is that personality rights and copyrights are a snap compared to trademarks, and that all three of those add up to something different altogether when the person IS the trademark.
To shift the metaphor all the way over - imagine that you wanted to do a documentary about Coca Cola. You have the Coke bottle (the shape is trademarked), the ribbon (ditto), the big red badge (ditto) and all that good stuff in practically every frame. It's all over the box, and in every banner and commercial, and all over your Facebook page.
Coca Cola will want to have a talk with you.
You might have to pay for some uses of these many Coca Cola trademarks (which include the name Coke in reference to the drink...but not the distillation of bituminous coal also known as coke), and not for other uses. I don't know, but maybe in some circumstances they can argue that you have ZERO rights to ANY use of the trademarks. But they will want to talk to you.
Lovely folks. They'll serve you Coke with a slice of lemon if you'd like.
Now, for Coca Cola, substitute Albert Einstein. Or the Wright Brothers, WC Fields, Maria Callas or Steve McQueen. Yes, they're people. Yes, copyright comes into play for specific images. But these PEOPLE are for all practical purposes LOGOS. They are specific representations of a commercial interest.
The exponentially greater penalties for violating trademark are amply discussed in this forum, by people much smarter than I am, and easily searched. What hasn't come up before is that in some cases, the person IS the logo, so to speak.
For our conversation about Ty Cobb, there are definitely SOME uses of the Tigers logo that are reserved to you under fair use, the news exception, or something similar. The balance tilts further from you, and more in favor of the rights holders, if Ty and his life as a ballplayer are the focus - his Tiger-ness and MLB-ness are essential to your project's commercial value. And if Ty himself IS the trademark? You're pretty much shut down without a LOT of phone calls, and probably a few checks.
BTW, I'm not saying that Ty is NOT a trademark. I don't know. I did a quick search and didn't find anything...but goodness gracious, don't base any business decisions on what I don't know!
Anyway, this is some idea why "PEOPLE as TRADEMARKS" is so complicated.
[Bob Cole] "Nobody has simply directly responded to the question in the original subject line, but I'm pretty sure that the answer is "forever.""
My typically long-winded answer was, "It depends." You MIGHT be good to go today. But for a specific person - say, Maria Callas - the answer is probably closer to forever. Securing the rights to individual images isn't that hard. Securing the rights to trademarks is harder. When the subject of your documentary IS a trademark, it's much harder still. When that trademark is a person, it's even harder.
Lots of other great points Bob...perhaps for another thread....and perhaps bringing in rules that apply in different jurisdictions, which adds yet another set of moving parts....
All good points. You sure you're not a lawyer Tim?
[Tim Wilson] "[Bob Cole] "Nobody has simply directly responded to the question in the original subject line, but I'm pretty sure that the answer is "forever."""
Actually I was trying to make a joke there. Not the first time my effort at humor has gone totally undetected ....
It would be helpful to hear from people who have successfully asserted fair use, to get a better idea of how it can be done and the actual risks involved. What I fear most is self-censorship, due to fear of some catastrophic consequence which might not actually exist. It would be great to learn about real cases and outcomes. After all, there are consequences either way. If you don't use the material, you might have no documentary at all, or a severely compromised project.
Meanwhile, on a far greater scale: there's a story in today's NY Times about China's wholesale mega-ripoffs of foreign companies' IP; the companies won't complain because they fear getting locked out of the Chinese market. It's not about right and wrong, it's all about the money.
Time to switch gears! Merry merry everyone. Tim, a delight to have this dialog with you. Very informative.
Today, dead celebrities estates often make more money per year than when they were alive. And, there are agents who work on behalf of the heirs of these celebrities. Used to be, when they died, the use of their likeness was fair game. Then a few lawyers got into the game and many states changed the laws giving the rights to the heirs.
60 minutes just had a segment last night on it.
[John Baumchen] "60 minutes just had a segment last night on it."
Again - there are fair use exemptions. I strongly doubt that 60 Minutes had to pay a dime to show the celebrity photographs, coffee mugs, etc., that were liberally on display throughout the piece. So documentarians, don't be overly "cowed" by this thread.