The Importance of Clearing Photographs in Low Budget Movies

I was a speaker at the Big Bear Horror Fi Film Festival this past weekend, which allowed me the great opportunity to watch a lot of horror movies by up and coming filmmakers.  However, being a copyright lawyer, I sometimes get distracted during the film when I spot something that is a potential infringement.

For example, The Victorville Massacre, which took the award for “Fan Favorite Feature” was a very clever take on the “horny kids alone in a house with a killer” genre.  Made on a tiny budget, it had better-than-average acting and some nice twists.  But in one scene, one of the girls in the house picks up a Spin magazine and starts to read with the camera showing the band on the cover (I’m pretty sure it was the Strokes).  Scenes like this always get my alarm bells ringing because I know that there is no way the filmmaker cleared that photograph.  Now for the time being, this is probably not going to be a problem, because the film is so low budget it will almost certainly not draw a lawsuit.  But both The Blair Witch Project and Paranormal Activity were super-low budget movies that eventually earned well over $100 million at the box office.  In the film world, you never know which movie will catch fire.

“But what about E&O insurance,” I hear you asking.  “Won’t that protect them from a claim?”  The short answer is “no.”  The reason being that when someone applies for E&O insurance, the application specifically asks if all photographs have been cleared.  If the filmmaker answers “Yes” and is wrong, then insurance coverage may be denied for making a false assertion on the application.  And if the filmmaker says “No,” then the insurance company will either deny coverage entirely or else exclude coverage for any claim for use of the uncleared photograph.

What makes it frustrating is that if the director and producer are aware of these issues prior to filmmaking, they are easy to avoid during filming.  In the case of The Victorville Massacre, it would have been easy to just have the actress open the magazine so the cover photo couldn’t be seen.  Similarly with things like posters on the walls, it’s easy to use public domain pictures or else remove or cover posters and artwork when shooting in practical locations.

These simple steps can avoid a timely and expensive lawsuit later.

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