How do you keep copyrighted material out of your work? In a world where seemingly everything has been copyrighted, it can be nearly impossible, especially for an independent filmmaker without the budget for meticulous set design.
The good news is you don’t always have to. Here’s a general guide to when it’s okay to use material you don’t own.
Brands
Let’s say you have a skater character who wears a VANS sweatshirt with the logo clearly visible. As long as she’s using the product as the manufacturer intended, you don’t need the company’s permission to use the brand. In fact, if your production is big enough, you can go around to multiple companies and offer the product placement to the highest bidder. However, if you do use a brand without its permission, be careful. If your character says something to the like of, “VANS sweatshirts are uncomfortable” (which is NOT the opinion of this writer - see what I did there?), they can sue you for defaming the brand. The smaller your production is, the less likely this is to happen, but it’s always something to consider.
Other Media (Films, TV, Music…)
What if you want to show your characters watching Disney Channel while a Taylor Swift song plays? Well, that’s quite a bit trickier. Those things are creative works, so you do need a license to use them for your own benefit. Unless you have several thousand dollars handy, that probably won’t happen for you.
However, thanks to a concept called fair use, you might be able to use this material if you follow these two stipulations (1) are transforming the material in some way so that it’s not being used for the same purpose it was originally made for, and (2) are only using just as much of the copyrighted material as necessary. There are four basic occasions when courts will typically allow this:
Using the Material to Comment on or Critique it. This is how YouTubers get away with song parodies.
Using the Material to Illustrate a Broader Point. Video essays fall into this category.
Capturing the Material Accidently. If you’re shooting a documentary, and there happens to be a song playing on the radio where you’re filming, a court may decide this is fair use, provided you really adhere to that second fair use stipulation.
Using the Material to Preserve or Memorialize It. This allows gameplay commentaries to exist (unfortunately).
Writer - John Wrigley