Copyright Infringement in Film: What Filmmakers and Other Content Creators Need to Know

Whether you’re an aspiring filmmaker, a sports videographer, a multimedia artist, or a related law-adjacent professional working, understanding the intricacies of copyright law is crucial to safeguarding any creative work. Copyright law not only protects this original content, but it also fuels the economic engine of these industries, ensuring creators and distributors receive recognition and compensation for their contributions. As the entertainment, sports, and art landscapes continue to evolve and converge, navigating copyright law and avoiding claims of copyright infringement are more important than ever.

In the world of filmmaking, copyright infringement can have serious consequences. It generally encompasses unauthorized use of protected content, such as unlicensed footage, images or music, that can lead to costly legal battles and reputational harm. Throughout this blog post, we’ll delve into what creators need to know about copyright laws, discuss common types of copyright infringement, explore key legal exceptions, and provide tips on avoiding legal troubles.

What is Copyright Infringement?

Copyright infringement occurs when a protected work is used without the proper authorization or in violation of copyright laws.¹ In creating films or other audio-visual content, this often involves using someone else’s images, script, or music without permission. An example of copyright infringement is incorporating a song into a movie, sports broadcast, or artistic work without securing the rights from the composer or music label. Additionally, incorporating another creator’s film footage and script content and passing them off as your own can result in claims of plagiarism.

The legal consequences of copyright infringement can be severe. Filmmakers may face lawsuits, court injunctions to stop distribution, and hefty fines and settlements, which can tarnish both personal and professional reputations. Understanding the definition of copyright infringement and taking proactive steps to avoid it are essential in protecting one’s creative investments.

Common Types of Copyright Infringement in Film

Several common types of copyright infringement can occur in filmmaking. One prevalent issue is unauthorized film adaptations. This happens when filmmakers adapt a book, play, or other source material into a movie without obtaining the necessary rights, leading to potential legal disputes.

Plagiarism or literary theft is another significant concern. This involves taking all or part of someone else’s written work, copying it, and presenting it as one’s own, a breach that can undermine trust and authenticity in the industry.

The use of unlicensed music, images, and footage in films also constitutes copyright and/or trademark infringement in the case of protected brand names and logos. Filmmakers often incorporate these elements to enhance storytelling, but without proper licensing or clearance, these additions can lead to legal ramifications. Ensuring all elements of a film are properly authorized, licensed, or otherwise cleared is crucial in maintaining compliance with copyright laws.

Real-World Example of Copyright Infringement

Copyright infringement cases arise on a regular basis in filmmaking, particularly around claims that a film resembles another creative work. One such lawsuit involved the Academy Award-winning movie “The Shape of Water,” which was directed by Guillermo del Toro. In this case, the son of Pulitzer Prize-winning author Paul Zindel filed a lawsuit in 2018, alleging that the film was substantially similar to Paul Zindel’s play, “Let Me Hear You Whisper.”

Both the movie and the play centered around an employee at a scientific facility freeing a creature that had been subjected to experiments. A federal trial court initially ruled that this concept was too general to protect. However, an appellate court disagreed and sent the case back for a trial that would include additional evidence and expert testimony. Finally, on the eve of the trial in 2021, the parties settled for an undisclosed sum and a statement by Zindel’s son that his plagiarism claims were unfounded.²

This lawsuit was one of several that del Toro faced regarding “The Shape of Water,” as the movie’s immense success led to a number of claims and disputes over the originality of its story. The case highlights the challenges in proving and defending against copyright infringement, particularly in creative industries like filmmaking, where similar themes and ideas can independently occur.

Key Copyright Laws Relevant to Filmmakers

Understanding the legal framework that governs copyright is essential for filmmakers to protect their work and avoid infringement. The Copyright Act of 1976 is the cornerstone of copyright law in the United States, providing protection for copyright owners for original works of authorship, including films, scripts, and music. This act outlines the rights of copyright holders, such as reproduction, distribution, and the creation of derivative works.

In the digital age, the Digital Millennium Copyright Act (DMCA) also plays a crucial role by addressing the rights and responsibilities of copyright holders and digital platform providers.³ The DMCA is pertinent for filmmakers as it helps them license and manage content on digital platforms, ensuring their works are not misused online.

On an international level, filmmakers should be aware of the Berne Convention for the Protection of Literary and Artistic Works, which provides copyright protection across all member countries. This multilateral agreement underscores the importance of understanding copyright laws both domestically and globally, helping filmmakers navigate international collaborations and distribution.⁴

Fair Use Doctrine: What Filmmakers Need to Know

The fair use doctrine is a crucial concept that filmmakers must understand. It allows limited use of copyrighted material without permission from the copyright holder for specific purposes, such as criticism, comment, news reporting, teaching, scholarship, or research. To determine whether a use qualifies as fair use, courts typically consider four factors:⁵

1. The purpose and character of the use
2. The nature of the copyrighted work 
3. The amount and substantiality of the portion used
4. The effect of the use on the market for the original work

In filmmaking, examples of fair use may include incorporating short clips from a movie for a documentary analysis or parodying a movie scene for comedic effect. However, it’s important to note that fair use is a complex legal standard that requires careful consideration. Filmmakers should evaluate each situation individually, and consult legal experts when in doubt, to ensure compliance with copyright laws. Filmmakers should also consider obtaining errors and omissions insurance to protect themselves from claims of copyright infringement.

Fair use also applies to footage and images used in the sports and arts industries. The NFL is famously protective of its footage, photographs, and graphics. Those who use NFL content without paying the rebroadcasting fees must be very careful when asserting fair use, as the NFL frequently challenges claims of fair use.⁶

In the arts industry, the Supreme Court in 2023 ruled in favor of photographer and film director Linda Goldsmith, who argued against the application of fair use to her photograph of the musician Prince. Andy Warhol had used this photograph to create his famous silkscreen paintings of the musician. In the words of Justice Sonia Sotomayor, “photographers … are entitled to copyright protection, even against famous artists.”⁷

How to Avoid Copyright Infringement

Avoiding copyright infringement requires proactive measures and careful planning. Here are some essential steps filmmakers can take to protect themselves from potential legal issues: ^8,9

• Conduct Thorough Research: Before using any content, such as music, scripts, or footage, ensure the content is in the public domain or that the rights to use it have been secured. Understanding the ownership and copyright status of all elements is crucial in avoiding infringement
• Obtain Clearances and Licenses: Secure the necessary rights and permissions for any copyrighted material used in a film. This includes securing music licenses, obtaining script rights, and clearing any images or film clips
• Work with Legal Experts: Collaborate with entertainment lawyers or intellectual property specialists who can help navigate complex copyright laws and ensure full compliance
• Implement Fair Use Carefully: If you plan to use copyrighted material under the fair use doctrine, make sure to assess its application thoroughly and consult with legal professionals to evaluate its risks and parameters accurately. Filmmakers should also consider purchasing errors and omissions insurance to protect themselves if they are forced to defend their fair use defense 
• Educate Yourself on Related Legal Topics: Earning a law degree or certificate is a great way to more formally master the legal knowledge you need to protect your work and prevent copyright infringement

By taking these precautions, filmmakers can focus on their creative vision, while maintaining legal integrity and respect for other creators’ rights. Without such copyright compliance, filmmakers and their distributors may face lawsuits, injunctions, and significant financial penalties.

Enter a Career in Entertainment Law With Pitt’s Online MSL Program

Understanding the intricacies of copyright infringement is essential for any filmmaker or content creator aspiring to create and distribute their original works. This knowledge is also critical to those assisting filmmakers in securing copyright clearances and distributing their work. From recognizing the nuances of copyright laws, to employing strategies for protection and fair use, content creators and distributors must understand copyright law to navigate the legal landscape of entertainment, sports, and art.

At the University of Pittsburgh School of Law, the Sports, Entertainment, and Arts Law Certificate program and the Online Master of Studies in Law (MSL) with a Sports, Entertainment, and Arts Law specialization are designed to provide you with in-depth knowledge and practical skills without the need to earn a JD degree. You will explore key topics such as intellectual property, contract negotiation, and compliance, preparing you to meet the challenges of the modern entertainment landscape.

Explore Pitt Law’s online programs to learn how to develop the skills and knowledge needed to take the next step in your professional life. Schedule a call with an admissions outreach advisor today.