Filmmakers Forum - A Resource for Crime Documentarians

An old saying goes, "A little knowledge can be a dangerous thing."Many people seem to know just enough about public domain to be dangerous. Public domain literally means "owned by the public."No individual or corporation owns the copyright in the material, so they don't need to be asked to use it. As a member of the public, you are as free to use the material as anybody else. This chapter explains the concept and provides some contemporary examples to help you understand public domain and its best use in making your film.

Remember that "familiar" does not mean public domain. "Happy Birthday" is a very familiar song, and it has been around a long time,but it is a protected property. In fact, restaurants whose employees sing it to customers have to pay an annual fee to ASCAP for the performance royalties. You have to pay fees to use it in your film for the reasons explained in Chapter 15. "Rudolph the Red-Nosed Reindeer" is very familiar and has been around a long time, but the song and the Rudolph character are protected property. Should you try to use this classic character, born in a song, without permission,you will quickly be contacted by Rudolph's lawyer.

"Old" does not necessarily mean public domain either. To determine cut-off area, subtract 75 years from the current year. If something was written on or before December 31 of that year and registered for copyright in that year, and nothing more happened to the work other than the registration of the copyright, the work is no win the public domain. However, a later translation of that work could still be well-protected by copyright. Copyright might protect a revised edition of a book or the remake of a film. Therefore, before you conclude that a work is in the public domain, you should purchase a copyright report. A copyright report is a detailed history of the work and related registered items. Unless the answer is obvious, you should review the copyright report with a lawyer to decide whether copyright protects the work or not. While you are free to search the records of the Copyright Office yourself, the task would be daunting. It would also omit reports published in the trade newspapers about the piece you are searching, which are included in private reports. The Copyright Office does not issue any such reports. It just records and organizes that material which is submitted. Copyright reports can be obtained from the following companies:

Even if a photo or a piece of film is in the public domain, be careful. Chapter 4 discusses the rights of the people who appear in public domain photos and film clips. Other elements in a film clip,such as music, might also have protection. See a lawyer before you spend a lot of money on a project that relies on what you believe are public domain elements.

If you have an urge to buy life story rights, it is generally because of someone involved in an interesting and publicized story. The facts of the story are in the press, and, as stated above, facts are public domain. So, why do people devote so much time and energy to buying these rights if everybody is free to use the facts because they are not protected by copyright?

Even when something is in the public domain, it is often a good idea to acquire an underlying property. You can sign a contract directly with the person whose story you wish to tell, or you can purchase the film rights to a book or magazine story about that person. The reasons are several fold. First, E&O Insurance (see Chapter 13) is generally easier to obtain if you purchase such underlying rights. The insurance companies feel that if the story was published, and therefore available to the public and no lawsuit followed, it is less likely that the film will draw a lawsuit.

The second advantage of buying underlying rights is that the writer of such a story may very well have some juicy, hard-to-find piece of information that was not used in the article and that they may share with you if you purchase the film rights to the story. In fact, the person who lived the story always has such information. Simply put, you make a better movie with the participation of these people. Finally, it often helps to have a spokesperson for publicity purposes who is familiar with, or directly involved with, the subject, but is not a direct participant in making the film. Purchasing film rights from a person usually makes them available for such promotional purposes.

Also note: People possess rights of privacy and publicity that you cannot invade, and a right not to be put in a false light (as set forth in detail in Chapter 4). When you purchase someone's life story rights, they waive the right to file a lawsuit based on a violation of those rights.

One of the most bizarre examples of the interplay between public domain facts and life story rights is the Amy Fisher story. You may recall that Amy Fisher was a seventeen-year-old girl who claimed to have had an affair with Joey Buttafuoco. Three different television networks made her story into three different movies. Here is the chronology:

As you might guess from the above, NBC portrayed Joey as an adulterous lover and portrayed Amy more kindly. CBS portrayed Joey as an innocent victim of Amy's obsession. ABC, relying on public domain material found in news accounts, didn't draw conclusions about who was right or wrong or good or evil. One thing is for sure: Amy shot Mary Jo and for that she sat in jail.

Astonishingly, each made-for-television movie was a genuine rating success. Even the network executives involved were "stunned"(their word). One NBC executive said, "It's sad . . . it's crazy."

This feeding frenzy raises two other issues about films based on sensational criminal activities. One is the "Son of Sam" statute passed in many states, including New York. The other issue is that your money may be better spent on stars for your film, rather than acquiring rights that are available to you through the judicious use of matters in the public domain.

The Son of Sam statute began in the State of New York in response to some hefty payments made to a notorious convicted murderer for his-you guessed it-life story rights. The public outcry demanded a legislative response. The idea was to prevent felons from selling their stories. However, the legislative response was not uniform among the states, partly because it is difficult to devise a scheme that survives constitutional scrutiny. The schemes generally apply only to persons who have been convicted. If you feel the urge to pay a felon for life story rights, see a lawyer. At least you won't run afoul of the law. Personally, I have never and will never pay money to a felon for his or her story.

ABC's telling of the Amy Fisher tale garnered the highest rating of the three networks without buying any life story rights. They saved their money and spent it on a star, Drew Barrymore. One of the hottest movies made for television was HBO's The Positively True Adventures of the Alleged Texas Cheerleader-Murdering Mom,starring Holly Hunter. That film was based on public domain matter, including a tape-recorded conversation with "Mom" that was originally taped for the police investigating Mom. The conversation was spoken verbatim by the actors in the film.

Events during the O. J. Simpson murder trial inspired the California Legislature to pass a related law. This one prohibits witnesses to a crime from selling their stories to the media before the end of the trial.That law has not been tested, but look for some court decisions, and look for the spread of this kind of statute throughout the country.

If you are creating a script based on facts that are in the public domain, be sure that you keep copies of all the research materials that support your script. Be sure that you have two sources for each factual assertion, (e.g., 8/8/89 interview with Joe Blow, court transcript of Jane Smith p. 7671). You cannot fictionalize any aspect of a person's life just because you have the right to portray the public domain facts about that person. (For information about people and their rights, read Chapter 4.)

If you are going to create this type of script, you should require the writer to prepare an annotated script. An annotated script has references to the various sources the writer relied on when writing the script. You annotate a script by placing handwritten numbers directly on the factual assertions in the script. These numbers correspond to numbers arbitrarily assigned to the various sources used by the writer as the basis for the script. Members of the Writers Guild have the protection of some relatively new rules about annotated scripts. If you require a WGA member to submit an annotated script, you must inform the writer at the beginning of the assignment because it is a lot of extra work to save all the research in an orderly manner and then to go through and annotate script. At the end of this chapter, there is an Annotation Guide for Scripts Based on Facts. You can attach it to the contract of any writer you hire to write the script for a film based on factual events.

Here is a good piece of news for those of you who are researching scripts based on facts. The author of the "true crime"books Where Death Delights sued the producers of the television series Quincy for infringement of the copyright of some fictional stories that the author wrote. Even though the stories were totally fictional, the author represented them to the reading public as true. Therefore the reading public could treat them as true, putting the stories in the public domain.

In court, as a plaintiff, the author said that any reader should have known that the stories were fiction because of their absurdity. The court held the author to his original representation of his stories as "true crime" stories. The moral is that you do not violate copyright law when you retell a story or a fact that you find in a book or article if the author of the book or article said that it was true. An author cannot promote a book as true and then claim that it is a work of fiction in order to pursue a lawsuit for copyright infringement when someone uses the story. This is true even when a typical reader would not necessarily view the contents of the book as plausible. One case even involved stories supposedly told to the author by aliens from outer space. When the stories were copied, the courts found the representation on the jacket and in publicity about the book's truthfulness to be controlling; therefore there was no copyright infringement. This is also true for "fictionalized" elements of biographies. The author of a biography of the actress Frances Farmer found that out when he sued the producers of the movie Frances. "Too bad" said the court. "You presented the book as true, so even the pseudo-facts are in the public domain." Of course, you should see a lawyer if you are planning a film based on material you did not purchase.

One area that is particularly relevant to television producers is "hot news," although it has no relevance to someone involved in the longer, more leisurely process of creating a documentary film,feature film, or other project with a less-pressured process. A hot news exception protects facts for a short period of time.

If a news-gathering agency spends resources and energy to gather fast-breaking news, the facts that it collects are protected from organizations who would like to piggy-back on that effort,without spending the bucks to gather the news themselves. To cite a specific case, the International News Service was prohibited from taking factual information from Associated Press news articles and then reselling this information to its own subscribing newspapers.

All of this falls in the area of unfair competition.The National Basketball League tried to use the AP case to stop Motorola from sending out its sports scores to pager subscribers.The court said, "Oh, no, no, no." The NBA doesn't spend energy collecting this data. The scores and stats that result from NBA games are facts and therefore free for anybody to use. It was Motorola's team of fact-gatherers that did the work of collecting the data and sending it out to subscribers.

This excerpt was taken from Clearance & Copyright: Everything the Independent Filmmaker Needs to Know, 2^nd Edition by Michael C. Donaldson. ©2003 Michael C. Donaldson. Published by Silman-James Press, Los Angeles. You may purchase a copy of this book at www.michaelcdonaldson.com.