Intellectual Property Presentation at FAVA
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Presented at the Film and Video Arts Society of Alberta on Nov. 7, 2018. This was an intro-level IP seminar targeted for independent filmmakers.
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Intellectual Property Presentation at FAVA
- 1. RedFrameLaw.com Gregory Pang Lawyer Film and Video Arts Society of Alberta, Nov. 7, 2018
- 2. RedFrameLaw.com Outline: 1. What is Intellectual Property? 2. Can I Protect My Idea? 3. Copyright in Canada Applying to Film Production 4. Protecting My Production 5. “Fair Dealing” GOAL: Demystify IP as it relates to film production and help you spot common IP issues as a filmmaker.
- 3. RedFrameLaw.com NOT Legal Advice Nothing in this seminar constitutes legal advice. Rather, only legal information is being provided during this seminar. No client-lawyer relationship is established with Gregory Pang or RedFrame Law merely by attending this seminar.
- 4. RedFrameLaw.com Intellectual Property © ®Patents Timothy Takemoto https://flic.kr/p/56sbk
- 5. RedFrameLaw.com Can I Protect My Idea? - NOT under copyright law. © protects expressions of ideas but not ideas just in themselves. - But, may be able to protect ideas under contract law, e.g. NDAs.
- 6. Copyright in Canada Applying to Film Production Copyright Act, RSC 1985, c C-42, http://canlii.ca/t/52zkj • Def’n (s. 3(1)): sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof • Life of author/creator plus 50 years (likely changing to 70 b/c USMCA)
- 7. Bundle of rights under s. 3(1) – sole right to… (a) to produce, reproduce, perform or publish any translation of the work, (b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work, (c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise, (d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed, (e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work, (f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication, (g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan, (h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program, (i) in the case of a musical work, to rent out a sound recording in which the work is embodied, and (j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner, and to authorize any such acts
- 8. RedFrameLaw.com When do I “have the copyright”? - You have copyright in your work as its first “author” or creator – your right can be transferred or licensed. - Everyone who contributes to your film may have a claim in copyright if they don’t assign or license their contributions to you and waive their moral rights.
- 9. RedFrameLaw.com Do I have to register my copyright? - No, not in Canada b/c copyright in your work does NOT depend on registration - But best practice to do so as “notice to the world” that you are the copyright holder of the work - Different in the U.S., e.g. availability of statutory damages
- 10. RedFrameLaw.com What are “moral rights”? - Rights of integrity belonging to the author/creator that applies to all creative contributions to your film - Not assignable/transferrable - Very important: creative personnel must waive moral rights in their contributions to your film
- 13. RedFrameLaw.com • Signed Releases • Signed Service Contracts • E&O Insurance • Script Clearance Report
- 14. RedFrameLaw.com Brand Releases Do I need these signed for ALL brands shown on camera? - E&O requirements vs legal reality - E&O often requires releases for all brands that appear - Legal reality is that a product with a visible trademark / brand used appearing in its usual context of use is unlikely to raise a claim (warning: this is fact and context dependent)
- 15. RedFrameLaw.com “Fair Dealing” • S. 29 Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright • S. 29.1 Criticism or review • S. 29.2 News reporting • S. 29.21 Non-commercial User-generated Content *Extensive legal test to determine if dealing is “fair” taking into account: purpose, character, amount of dealing, alternatives to dealing, nature of the work, effect of the dealing* (seek legal advice)
- 16. RedFrameLaw.com “La Petite Vite” – A Parody Case Study Productions Avanti Ciné Vidéo inc. c. Favreau, 1999 CanLII 13258 (QC CA), http://canlii.ca/t/1mvrp “There is, in my view, an important line separating a parody of the dramatic work created by another writer or artist and the appropriation or use of that work solely to capitalize on or "cash in" on its originality and popularity. Parody normally involves the humorous imitation of the work of another writer, often exaggerated, for purposes of criticism or comment. Appropriation of the work of another writer to exploit its popular success for commercial purposes is quite a different thing. It is no more than commercial opportunism. The line may sometimes be difficult to trace, but courts have a duty to make the proper distinctions in each case having regard to copyright protection as well as freedom of expression. In this case, Respondent was on the wrong side of that line. Far from a parody of an original dramatic work, "La Petite Vite" constituted a crass attempt to gain instant public recognition without having to create characters, costumes, decor or situation. "La Petite Vie" had supplied the characters, the costumes and the mise-en-scene. Once that was obtained by respondent, he had only to supply the simple pornographic activity for the success of "La Petite Vite". Whatever the dramatic merits of "La Petite Vite", I see no parody, criticism or originality in it. Simply adding pornographic activity as a story line for characters that have been appropriated from another writer's work does not, in my opinion, constitute parody or fair use of that material.” Rothman J.A. at 11-12. *Caveat: This decision is well before “parody” was added to fair dealing under s. 29 of the Copyright Act*
- 17. RedFrameLaw.com
- 18. RedFrameLaw.com “Star Trek Axanar” (U.S.) – A Fan Film That Went Too Far • Fan films were tolerated, and arguably embraced, by rights holders of Star Trek for decades • Axanar may have started or claimed to be a “fan film”, but ended up as a derivate work of copyrighted material that was a competing commercial venture to CBS/Paramount’s Star Trek theatrical films and the then planned new streaming series • More on this: http://axamonitor.com/doku.php?id=timeline
- 19. RedFrameLaw.com Recap: 1. What is Intellectual Property? 2. Can I Protect My Idea? 3. Copyright in Canada Applying to Film Production 4. Protecting My Production 5. “Fair Dealing” https://www.imdb.com/ title/tt3302086/mediavi ewer/rm1385583616
- 20. RedFrameLaw.com Summary: 1. What is Intellectual Property? 2. Can I Protect My Idea? 3. Copyright in Canada Applying to Film Production 4. Protecting My Production 5. “Fair Dealing”
- 21. RedFrameLaw.com A couple of good resources for indie filmmakers: *Warning: These books are informative and practical guides but they are authored by U.S. lawyers with U.S. law in mind. They are not a substitute for legal advice in respect of Canadian law.*
- 23. RedFrameLaw.com QUESTIONS? Gregory Pang 780.429.2771 greg@redframelaw.com Twitter: @cyclaw LinkedIn: www.linkedin.com/in/gregorypang/
Editor's Notes
- GOAL: Demystify IP as it relates to film production and help you spot IP issues as a filmmaker.
- What is IP? Property – intangible property that has value What are the different types of IP? Confidential information, industrial design Differences between the main 3 types of IP
- Rights are licensable and transferrable
- Remember first: Copyright only protects expressions of ideas, i.e. fixed in some material form. “works” under Copyright Act. You have copyright in your work as its first “author” or creator – your right can be transferred or licensed. Everyone who contributes to your film may have a claim in copyright if they don’t assign or license their rights to you.
- What are waiver of moral rights so important?
- Ownership and right to exploit All creative inputs: licence or assignment, waiver of moral rights, right to exploit in all media throughout the universe Lengthens as project matures
- Hand out releases
- E&O requirements vs legal requirement
- Dealing must be “fair”: purpose, character, amount of dealing, alternatives to dealing, nature of the work, effect of the dealing Not for some competitive purpose
- Dealing must be “fair”: purpose, character, amount of dealing, alternatives to dealing, nature of the work, effect of the dealing Not for some competitive purpose
- Non-commercial UGC – the “Youtube exception”
- Dealing must be “fair”: purpose, character, amount of dealing, alternatives to dealing, nature of the work, effect of the dealing Not for some competitive purpose
- GOAL: Demystify IP as it relates to film production and help you spot IP issues as a filmmaker.
- Summary – tell them what you just told them Conclusion