Protecting the Creative Canvas: A Dive into Intellectual Property in the World of Cinema
Authors: Bianca Chera (senior associate), Marius Gheldiu (associate)
In today’s digital age, our lives are increasingly populated by video materials. We consume them as feature films in cinemas, as episodes in our living rooms, or as short, attention-grabbing clips on online platforms like TikTok.
Whether it is a cinematic masterpiece or a 15-second viral sensation, the creation and dissemination of videos constitute a fundamental part of modern entertainment. Yet, within this vast world of visual content, there is a legal dimension that often goes overlooked, although it is essential to the very existence of these videos: intellectual property (IP) rights.
This article is a concentrated overview of the intricate world of IP rights within the European Union (EU) legal framework, using Quentin Tarantino’s masterpiece – “Pulp Fiction” as a case in point.
As we venture into this legal and cinematic landscape, we will discover how IP rights, encompassing text, music, images, video content, and trademarks, shape the world of today’s entertainment and safeguard the creative process, ensuring that the creators, whether in Hollywood or on TikTok, have the appropriate means to secure the results of their intellectual work.
1. Cinematic Narrative: Screenplay
Under EU legal framework, the screenplay of a film is protected under copyright law as an original literary work. As a result, the author’s subsequent rights to reproduce, distribute, and adapt the screenplay are born upon the creation of the work, while its registration with the relevant authorities is for protection purposes only (aimed to be used, for example, as proof of a work’s pre-existence in a potential dispute).
These rights are established under the EU Copyright Directive and provide the authors with the ability to control and benefit from their creative work.
When it comes to IP rights in movies, it is important to distinguish between the screenplay and the resulting film, as the screenplay remains a separate creative work serving only as foundation for the movie. In this context, while the screenplay is protected as a literary work, the film itself, being a derivative work, involves a distinct set of rights and often necessitates the involvement of various stakeholders, such as directors, actors, composers, and producers, to bring the written script to life on screen.
Copyright over movies is divided in sets of rights and allocated among the artistic contributors to the movie. Movies comprise a multitude of copyrights which can give rise to complex problems, amplified by the rapid evolution of technology.
For example, in late 2021, Quentin Tarantino, the acclaimed film director, revealed his plan to create seven non-fungible tokens (NFTs) featuring scenes from his iconic movie “Pulp Fiction”. These NFTs included digitized excerpts from the original handwritten script, previously unreleased scenes, and personal audio commentary by Tarantino himself.
This move led to a legal dispute with the film studio Miramax, to whom Tarantino had granted broad rights over “Pulp Fiction” in 1993, each party claiming that the NFTs represented an exploitation of the copyright over the film, respectively the screenplay. Despite the director retaining certain rights to the film, including the screenplay publication, interactive media, etc., Miramax considered that he was not acting within his contractually reserved rights.
Without a doubt, the advent of NFTs is a recent development that studios and filmmakers had not previously anticipated. Therefore, it emphasizes the necessity for a meticulous evaluation of reserved rights in the negotiation of relevant agreements, including the reproduction, exploitation, and conditions under which works may be made available to public.
2. Sounds and Video Feast: Songs, Pictures and Video
One of the most striking features of “Pulp Fiction” is its unforgettable soundtrack and its cinematic brilliance. From surf rock to soul, the movie effectively uses music to set the mood and enhance the storytelling.
It is necessary to remember in this context that the music itself is protected by copyright and that composers, lyricists, and performers own IP rights that must be observed when using their works in movies.
So, how are songs used in videos, or on a larger scale, in movies, without breaching existing copyright over the underlying work? In the realm of filmmaking, songs are typically used under licenses, or even owned by movie production companies, particularly if the songs are specifically created for a film.
Besides the above-mentioned most commonly employed methods, the utilization of songs in videos can also be facilitated by alternative legal mechanisms. This includes the application of the fair use doctrine and the incorporation of songs that have entered the public domain, aspects detailed below.
Similarly, the artistic elements of the film, including its iconic scenes, cinematography, and animations, fall under the umbrella of IP rights.
3. Trademarks in the Storyline
In the world of “Pulp Fiction” memorable trademarks often make appearances. Whether it is the fictional “Big Kahuna Burger” or the very real “Big Mac”, these trademarks can be a tricky legal area. EU law is stringent about trademarks registration and usage, ensuring that owners’ rights are upheld while also preventing trademark rights from being held indefinitely without being genuinely used for commercial purposes.
Trademarks, such as the iconic “Big Mac” are invaluable assets to businesses, but failure to actively use and promote them in connection with the registered goods or services can weaken their protection and lead to potential challenges.
In this context, a notable illustration of this latter principle was the decision to revoke the “Big Mac” trademark due to non-use, issued by the Cancellation Division of the European Union Intellectual Property Office (EUIPO).
Although the decision was subsequently overturned by the Board of Appeal, this case serves as a reminder that trademark owners must not only secure their rights through registration, but also actively and genuinely utilize their trademarks for the declared purpose, to safeguard their exclusivity and protect their brand identity in the competitive market landscape.
Once the trademark’s protection is in place, as a rule, the owner’s consent should be sought before featuring brand names and logos in movies. Exceptionally, it is commonly admitted that the incidental/ background appearance of a brand name or logo should not be construed as an infringement of the owner’s IP rights, as long as the trademark is not heavily featured, it is used as intended, unaltered and not disparaged.
4. Fair Use and Parody
The costs of a movie production can be substantial, and one way to mitigate expenses is by considering alternative options to licensing or acquiring IP rights. Among these alternatives, the fair use doctrine and the use of works in the public domain can prove highly valuable to filmmakers.
Fair use allows for the limited use of copyrighted material under specific circumstances, for purposes such as commentary, criticism, or comedic effect, while public domain works are works not subject to copyright restrictions (either because the copyright has expired or because the work was never subject to copyright protection) offer a wealth of creative material for storytelling and artistic expression.
Under European caselaw, a work was qualified as parody or satire when it (i) evoked the idea of an existing work, (ii) displayed visible differences from that work so as to avoid a risk of confusion, and (iii) was an expression of humor or mockery.
The above mechanisms are aimed at seeking the balance between the freedom of creative expression and the interests of copyright owners. It is also crucial to be aware that the rules governing fair use and public domain works may differ across jurisdictions, so compliance with local copyright laws is essential when working with such materials on an international scale.
Conclusion:
In the EU, intellectual property is a vital aspect of the movie industry, with several forms of IP, including text, music, visuals, and trademarks, intricately woven into the fabric of cinema. By understanding and observing IP rights over the various underlying copyrighted works, filmmakers can continue to create masterpieces while safeguarding the rights of creators and authors in this dynamic industry.
