Clearing the Legal Path for Filmmakers with Attorney Dale Nelson

Welcome to the Entertainment Business Podcast. I'm your host, Tisha Morris. Join me as we go inside the entertainment industry of film, TV, books, music, and all content creation, where we'll weave together the creative and business of entertainment with practical tips, inspirational interviews, and insider information of all the latest trends. And with that, let's get on with the show. You're like me, you love a good documentary. Especially true crime or a scripted film based on real people and real events. My guest today has spent her career clearing these types of projects in film and television, including the movie Priscilla, Milli Vanilli, and yes, Larry Flint for President. Today we're going down the legal rabbit hole to discuss what goes into film clearances and what filmmakers need to know about avoiding, avoiding legal red flags as it pertains to common clearance issues such as defamation, right of privacy, and copyright infringement. To discuss this, I have one of the top experts in the industry joining me. Dale Nelson is a partner at the LA-based firm Donaldson Callip Perez, where she works with independent filmmakers, documentarians, podcasters, and artists to help them tell their story their way. Dale spent over 25 years as in-house counsel at Warner Brothers, where she handled a wide variety of properties, including Harry Potter and the DC Comics franchise. Dell is a frequent speaker, lecturer, and panelist on a wide range of media and intellectual property topics and has lectured at numerous universities and law schools around the world. And she's here to talk with us today. Welcome, Dell.

Thanks very much, Tisha. It's a pleasure to be here.

Your firm wrote the book on clearances, literally. I have it right here. It's called Clearance and Copyright. I have the 5th edition. I think that's the most recent one. I have all the— I have the pages tabbed and underlined and all that stuff. So I thought I want to hear about your background, but first let's explain what we mean by clearance or what it means to legally clear a film.

Yeah, sure. I'd be happy to address that. And thanks for your kind words about the book. I'm really pleased whenever I hear somebody has a copy. And yeah, the 5th edition is the latest edition. We actually just finished that in the past year. And the book called Clearance and Copyright, it's available on Amazon, um, is, uh, something the firm is very proud of because we are here at our firm. We represent independent filmmakers and especially a lot of documentarians, and we really try in a lot of different ways to provide filmmakers with tools that they can use outside of engaging us for our legal services. And one of those, probably the most important thing is that book.

Yeah. This idea of clearing a film, which I wanna— we won't get, we won't get too in the weeds, but I'm gonna get into it for, cuz we have a lot of filmmakers that listen to this podcast and some of the things that, that they should look out for. But yeah, explain what, what we mean by clearing a film or clearance.

Yeah. So generally speaking, when we say we wanna clear a film, we wanna make sure that it's legally sound. And defensible against any claims that a third party might make in terms of intellectual property infringement or privacy rights. And pri— by privacy rights, I mean like defamation, false light, um, right of publicity, those kinds of rights. And depending on what kind of film it is, you'll need different kinds of clearances. So With a narrative film, for example, you will probably want to put your script through a script clearance, which is not something that we do, but there are script clearance agencies that do an efficient job of checking all the names of your characters and making sure that it doesn't match anybody in your— in the town where it's set. So that— and the reason for doing that is, you know, you want to avoid a claim that somebody could pop up and say, You use my name and I live in that town and I'm a doctor in that town and I'm the same age. And so you're talking about me and I never robbed that bank.

Right.

So you want to avoid those kinds of—

Accidental, like accidental right of privacy.

Yeah, exactly. Accidental right of privacy. But another area is fair use, which is a defense to a claim of copyright infringement. Now, especially documentarians tend to want to rely on fair use for things like photographs, news clips, artworks, for example, depending again on what your film is about. But say it's about, uh, a famous actor and the documentary is about his or her career. Of course, you'd want to use a lot of film clips from the films in which the actor appeared. To illustrate their career and important moments in their career, their acting style, things they won awards for, things like that. So it's perfectly justified to use film clips in that kind of instance without the permission of the studio that owns the, the film. That's a classic example of fair use. Mm-hmm. But fair use is a very flexible concept, comes in all shapes and sizes. And that is one of the things we specialize in.

Mm-hmm.

We also— clearance also means a review for the use of trademarks also comes up. But we get a lot of questions from filmmakers about, can I use— can I show the Apple logo when I'm showing the computer on the screen? Can I show the bottle of Coke that somebody's drinking? And the quick answer to that is yes. Because you're not really using that in a trademark way. And if you're not using it in a trademark way, it's not a trademark infringement.

Yeah.

So those kinds of things.

Yep. In my experience, I've come across a lot of filmmakers and writers who throw around the fair use, the word, the concept, doc— it's really a doctrine, but not really knowing what they're saying. It's like a quick and easy thing to bring out of your pocket. When it's a very legally complex doctrine that's on a very case-by-case basis, depending on the actual facts. Is there, that being said, is there any quick and dirty way of how you advise clients, or is the best way to, you know, get that attorney review?

You, I, what you said is absolutely right. Fair use is a legal conclusion that you really should have an attorney evaluate, somebody who knows what they're doing. There's lots of case law out there around fair use that guides the lawyers like me to make their determinations. And there are no bright rules. There are no bright line rules. Sometimes we'll have clients say things like, well, if it's under 10 seconds, it's okay. And the real answer is it depends. Sometimes 10 seconds is okay and sometimes it's not. The amount you're using. Of the original is one of, just one of the factors that you take into consideration in determining fair use.

Right. And that's in proportion to the entire entirety of the, and also the qualitative nature of it, not just the quantitative nature of what you're using.

Exactly. So if you want to use a photograph of somebody, for example, You typically are using the whole photograph, right? But if you use a screen grab of that same person from a 90-minute feature film, you then, you're only using a very small portion of the source work. And therefore you have a better argument under fair use that you're only taking a small amount of the original.

Yeah.

So that's one of the— I, I don't like to use the word tricks, but I'll be persistent. That's one of the things that sometimes we might recommend something like that for our client to avoid using a photograph where the argument might come back, well, you're using the whole thing.

Mm-hmm.

Yeah.

And, and this applies to literary, uh, you know, books, like you mentioned, not just film and TV, but in any medium in which you're using others' Copyrighted material comes up a lot. I do legal vetting books a lot. If they've cut and pasted a chunk of a, you know, quote that turns into more than— more like a few paragraphs. Also with music, it shows up in all mediums. But yeah, film and film document— documentaries is definitely where we see it a lot. I'd love to talk about the timing of the process of clearing. Let's just use a documentary as our example. For some filmmakers, clearance issues can be an afterthought that comes up when they realize they need E&O insurance, but obviously it's always best to retain counsel at the beginning of any project. But walk us through the ideal scenario in dealing with clearance issues, um, in, in the case of a documentary.

Okay, sure. In the case of a documentary, the ideal time to have an attorney do the clearance work is really when you have a rough cut that's finished enough so that we're not later reviewing something that's completely different, but it's still in the stage where you can edit things, swap things out. And yeah, that's the sweet spot, the timing, because when we do a review, you'll send us the rough cut. With a corresponding clearance log that lists out all of the third-party material that you're using. And we'll evaluate each asset, we call it, on the log and give you a determination whether we think it's fair use or not. Sometimes we'll have questions and sometimes we'll recommend licensing. And when we're watching the film itself, we may notice things that aren't on the log, like maybe there's a shot of a mural That needs to be added to the log because that would be a third-party work. You might want to rely on fair use. Murals can be tricky. There are actually a lot of lawsuits filed by muralists, and the advice we give might be, gotta go get a license. You gotta track down who did that mural, which sometimes is not easy, and get a license, or you need to cut it from the film. So when we get back the notes, then filmmaker needs enough time to work on it and do the licensing, maybe get the editor back in and do some editing, and then we'll review the changes. And sometimes it takes a few rounds before we resolve everything. And so that entire process can take anywhere from, I'd say, 2 weeks on a real expedited basis. To several months and sometimes longer.

Now you, your career has been a few decades long and you were at Warner Brothers for a long time and got to work on some pretty major projects. Tell us how you got, how you ended up in this part of law and maybe some of your more notable, not cases, but clientele, intellectual property you've got, you've gotten to work on.

Yeah, sure. Yeah, I have been practicing law a long time. It occurred to me that In October it'll be, or no, maybe in a, yeah, in October I think it'll be 40 years, which is really hard to believe. Of course I don't look that old, but of course not.

Yeah.

And sure. Just quickly, I, yeah, I did start out at a litigation firm doing intellectual property litigation. I was always, since law school, I was interested in intellectual property. I got interested particularly in copyright law, and so I worked at the litigation firm doing a lot of trademark work, some patent work, some copyright work, but it was mostly litigation for about 5 years. And then I woke up one day and realized that I didn't want to be a litigate. I didn't wanna be a trial lawyer, and I sent a letter to a lawyer in LA that I heard was maybe starting her own firm. And unbeknownst to me, she was on the phone one day with, uh, a lawyer from Warner Brothers who said, I've just been hired by Warner Brothers and I'm starting an IP group. Spent the next 26 years in, uh, at Warner Brothers in the intellectual property department. So when I was Working at Warner Brothers all those years, I was just so happy working on really cutting-edge intellectual property issues from all kinds of directions because in the IP department, we serviced all the businesses of the studio, and that meant feature production, TV production, animation, consumer products, video games. All the distribution units, and I learned a lot, and I had a chance to work on some of the crown jewel properties controlled by Warner Brothers, including Harry Potter, Lord of the Rings, all the DC Comics properties. Yeah, so those are some of the top ones. Oh, and Looney Tunes. A lot of work on Looney Tunes. And but there's just so many others, TV properties. And one of the fun things I worked on a lot was developing fan policies for the studio.

Hmm.

Because with the advent of the internet, and I was there at that time, suddenly fans wanted to have fun with the properties in ways that we'd never seen before. Websites, all kinds of themed events. Merchandise that people would sell on Etsy places and just all kinds of things. So we had to come up with some policies where we could protect the intellectual property in those properties, but at the same time not alienate all the fans.

Yeah, that's gonna be a really fine line.

It was really tricky and a lot of fun.

Yeah. And that's even bigger than ever with obviously the internet is still around and now moving into the Web 3.0 and going in the virtual world and being able to self-publish and self-everything, anything you want to produce, you can now. So I imagine that's even gotten more complicated.

So I, I have a lot of just knowledge on how things work at a studio and how the studio might view things that I find comes into, comes in handy now when I'm advising independent filmmakers who may have questions like, can I wear a Harry Potter costume in my film? Or can I do a parody on something?

Um, so now you, I'm guessing, work more on real life stories and docu— documentary I'm a huge fan of true crime, as are a lot of people. And there's been a recent drop of two documentaries on the Laci Peterson disappearance, or not disappearance, now a murder. And there's one that features her mom on Netflix, and there's one that features Scott Peterson in jail on Peacock right now. And so it got me down the story rights rabbit hole, story or life rights rabbit hole. When do you need, as a filmmaker, when do you need to get the story rights for someone that, that you're featuring in, in, in your documentary? And when do you not need to get story rights?

Yeah, that's a great question. And we get that question all the time from filmmakers. And the answer is you don't need the rights of the people you're telling the story about. I always like to say to people, there's really no such thing as life rights. And people will talk about, gotta get the life rights. It's really, that's really not true. You don't need to get the life rights. Now, sometimes people want to get the life rights or they, but they, what they really mean is they wanna get the cooperation of the subject of the story. And there's lots of reasons for that. Sometimes they want it to be the official story. The authorized biography or the authorized version. Sometimes they want the, the subject to get involved in the marketing of the piece, and that can be important to distributors. Sometimes you want to enlist the person because they have access to information and materials, or you want to interview them. But putting all those things aside, you do have a free speech right to tell the story about facts about people and events that happened in real life, and you don't need the people's permission to tell the story. We help a lot of filmmakers who do it both ways. Mm-hmm.

Yeah. In the, the Netflix version of the Laci Peterson story, it clearly, they got, I would love to see the contract between them and Laci's mom because the whole, it's only 3 episodes and it features interviews with her mom throughout. The entire thing, but they were very specific on leaving out any evidence that was contrary to Lacey's side of, or to that, the family's side of the story. So I'm imagining that was part of the agreement of, so basically in the story right agreement, you would also put in what this person is going to provide, whether it's photos, footage. There were some unseen footage from Lacey as a child that clearly her mom had produced to them. So anyway, it's a really good example of when you do need the story rights. Not because of the rights, but just because, like you said, the participation of that person in the process.

And the downside, of course, is if you want the person's cooperation, they're probably going to ask for approval rights. And that's something that you can negotiate. But if they have approval rights, then the film will probably end up a little censored. Yep.

That's exactly— yeah, that's exactly what I think happened here. Now, do you ever get involved with acquiring story rights? And do you have any interesting stories around that?

We do, we do those negotiations and sometimes they're simple, sometimes they're not. So your question makes me think of a, of an example once where filmmaker wanted to do a story about a woman who was a political activist and, um, it's a long story and he really wanted her cooperation and couldn't quite get it. And so he ended up doing it without her and getting in, securing insurance over the script. And once he had the insurance, then he went out to her again and tried even harder because the fear was if she said no, he still wanted to make the story. If she ever agreed, then he was open to the story back up again and write it a little bit differently. So sometimes there's that option.

Yeah, I imagine there's a lot of emotions, some psychology of what needs to happen and negotiating these types of rights. What trends are you currently seeing with, with people, with what source material people are using? Obviously podcasts, turning those into film has become a big trend. Anything else you're seeing with trends based on existing IP?

While there was a little flurry of interest a while back when Mickey Mouse went into the public domain in the US, and we got questions from several filmmakers about other things that might have entered the public domain. But the thing about public domain is that it's territory by territory.

Mm-hmm.

So just because something falls in the United— into the public domain in the United States doesn't mean is without copyright in other countries of the world.

Yes.

A lot of times people think copyright is like a worldwide thing, but it's not. It's territory by territory. And so I think people that really got interested in some older properties, maybe they got advice from us or others that it actually wasn't in the public domain worldwide. Then the plans are— there's a big monkey wrench in the plans if you want to distribute something worldwide, which most people do.

Yeah, that's a really great point. This came up for me recently. Someone was wanting to acquire or use a book in the public domain. Now you do a lot of international IP work, and I imagine it's becoming more and more in play because of how easy things are to do, how much easier things are to distribute internationally. Any other red flags people should be aware of with regards to international?

That's a good question. Generally speaking, the IP laws around the world in most developed countries are similar. Where they vary is on things like practical enforcement. Americans are much more litigious, generally speaking, than in Europe. The procedure, litigation procedures are different. You don't have juries in lots of places. You don't have big damage awards. So if you have a conflict, an IP conflict in a European country, for example, you can usually set it and settle it rather for a reasonable amount. Whereas in the US, it may be more difficult to settle something because people are motivated by the hopes of getting a big court judgment. But on the other hand, the fair use laws in the United States are much more flexible than they are in Europe. So somebody coming to us for a fair use analysis, for example, wants to use some copyrighted assets that are foreign-based or non-US-based, like they originate from Europe or Asia. We tend to be, well, we will flag that. For the filmmaker and say, if somebody sues you over this, they're likely to do it in their home country where their copyright laws will apply. The US law doesn't apply. So you might want to think about getting a license, or we'll review it more conservatively. But insurance policies we help our clients get are typically worldwide. So even if that did happen, the claim were brought in China or the Netherlands, then the policy would cover it.

Have you gotten your— I, I'm sure you've been following all the copyright infringement cases regarding AI that have, that have— there, there are a lot of authors have filed class action suits, the music publishing companies have filed. I'm still waiting for the studio, the studios to file something because these AI machines are just gobbling up intellect, all these films to, for their models. Do you have any thoughts on where you think this is headed as far as do you think courts are going to use fair use as legitimate to legitimize what's going on? Or do you think we're looking at maybe blanket licensing? What are your thoughts on this trend and where it might be going?

Yeah, I'm glad you mentioned AI because when you asked before about trends, I was thinking, oh yeah, AI, that's the It's a trend. Everybody wants to use AI for something now. And because the law is still developing in this area, it's really hard to give advice. So the way I break it down in my mind is you have the ingestion cases, which you just mentioned. There's been lawsuits against OpenAI and all the other AI companies about using copyrighted material to, to teach as learning source material for their AI systems. So there's been lawsuits by book publishers, music owners, filmmakers, um, other artists. And we'll just have to see how that plays out in the court there. The company, the AI company's main defense is gonna be fair use. Um, they will mainly rely on cases like Google Books, which was where Google was successful in arguing fair use, that its ingestion of all the books of the world into its system where it would return snippets from the books was a fair use. And the court ultimately agreed with that, holding that use of the underlying material was a fair use because it was used to produce a socially useful tool. Okay, so this sort of social utility argument, which was also used in the Sony Betamax case years and years ago, where people— it was held to be a fair use to timeshift things that you could tape off the TV. It's a, the type of fair use that I think the courts might recognize in these situations. On the other hand, I secretly hope that there is some sort of commercial understanding or industry transaction that happens where copyright owners will be compensated by these companies in some fashion. And that might happen before we get court decisions. It might happen after we get court decisions. But it's all a very active space right now. But that, that is actually what happened with YouTube and music owners were, and film owners were going crazy accusing of YouTube and Google of copyright infringement. And at the end of the day, they came up with a Content ID system that compensates the copyright owners. For a portion of the ad revenue that YouTube gets for placing the content. And so that was a way for these companies to all come together and compromise. And I wouldn't say everybody's happy about what happened, but probably a better result than just having one set of, one set of winners and one set of losers.

Agreed. Yeah, I think that's, that would be my preference as well. It's not, doesn't help the fact that it's these big tech that are already have plenty of money and resources that are involved in using the IP of all these artists and creatives for free.

I was just going to say, what's interesting is that because of my international IP network, I've been asking my colleagues in Europe, for example, what's happening and who seemed to be seeing blurbs of legislation coming out about AI machines, and they tell me that it's, it's really never been debated that the AI companies should take a license from the underlying copyright owners. In other words, it's required that they do compensate them to use that underlying material. Now, I don't know how that works in practice because sounds like a kind of a nightmare, but in Europe they're used to things like collection societies for these for these kinds of things. And it's not something we really have a system set up for in the United States.

This has been so enlightening. I really appreciate you sharing your wisdom with, with the podcast listeners. For Del Services, the website of her firm is donaldsoncalifperez.com. It's in the show notes. Del, any other— is that the best way to get in contact with you?

It is. Yeah. You can reach us on the website. My personal email or my office email is dnelson@dcplaw.

So thank you so much. Thank you so much for listening to today's episode. If you like the podcast, please like, subscribe, maybe even share to your friends. And for more information about my services, visit my website at tishamorris.com. That's T-I-S-H-A M-O-R-R-I-S. Well, that concludes today's episode, and I wish you all the best. Until next time, keep creating and please take care.