Overview of US Law

(a) Protection of Copyright

Copyright law is derived from the United States Constitution,²⁰⁵ which empowers the Congress to protect the works of authors.²⁰⁶ The copyright law in the U.S. is embodied in U.S.C. Title 17. Copyright protection is accorded to the works as soon as they are created. Authors of copyright works do not have to register their copyrights with the Copyright Office to gain copyright protection. The federal law protects copyright owners from the unauthorized reproduction, adaptation, performance, display or distribution of copyright protected works. Penalties for copyright infringement differ in civil and criminal cases. Civil remedies are generally available for any act of infringement without regard to the intention or knowledge of the defendant or harm to the copyright owner. Criminal penalties are available for intentional acts undertaken for purposes of "commercial advantage" or "private financial gain." Habitual offenders can be imprisoned for up to 10 years. Violators can also be held civilly liable for actual damages, lost profits, or statutory damages up to US$ 150,000 per work.²⁰⁷

The "fair use doctrine" of the US federal law is a complicated area. It basically limits the extent of copyright granted to the copyright holder. This doctrine permits others to borrow portions of a copyrighted work for purposes such as teaching, research, news reporting, comment, criticism or parody.²⁰⁸

Unlike India, the copyright law in the U.S. has a specific provision as to what is a "work made for hire". Film projects typically involve the intense work of many creative people acting and working over short and/or long periods of time, often far away from a studio office and over and above office hours. In order to determine whether a person is an employee, the U.S. copyright law provides for certain types of works including audiovisual works, specially commissioned to be considered as work made for hire. The employer is considered the copyright owner of works made for hire. The employee has no ownership rights at all. However, in order for it to be a work made for hire, a "work for hire" agreement must be entered into by the concerned parties.²⁰⁹

The U.S. has also enacted the Digital Millennium Copyright Act, 1998 ("DMCA") which seeks to prevent the infringement of copyright in the digital environment. The DMCA contains provisions concerning the circumvention of copyright protection systems, fair use in a digital environment and online service provider liability.

(b) Censorship

In the U.S., there exists a voluntary system of film rating, which is sponsored by the MPAA²¹⁰ and the National Association of Theater Owners.²¹¹ The aim of this system is to provide parents with advance information about films to protect the interests of their children. The parents are part of a specially designed committee called the film rating board of Classification and Rating Administration. Some of the criteria considered during the rating process by the rating board are, themes, language, violence, nudity, sex and drug. The rating board assesses how these different elements are depicted in the film. The rating board places no special emphasis on any of these elements; all are considered and examined before a rating is given. Producers are allowed to edit their films in order to change the rating that is given. It is important to note that the rating system is only voluntary and does not have the force of law.

(c) Defamation

Just as in the Indian context, filmmakers in the US must ensure that their film does not contain defamatory matter. Defamation, as explained earlier, is a communication that harms the reputation of another so as to lower him in the opinion of the community or to deter third persons from associating or dealing with him. However, there are certain defenses and privilege, which a filmmaker can avail of to defend a defamation suit. One such defense is the truth. If certain remarks in a film hurt someone's reputation, but the remarks are true, the filmmaker is absolutely privileged. An absolute privilege cannot be lost through bad faith or abuse. So even if the filmmaker maliciously defames another person, he will be privileged if the statement is true. Truth is an absolute privilege because society values truth more than a person's reputation.²¹² Another privilege is the conditional common law privilege of fair comment and criticism. This privilege applies to communication of a newsworthy person or event. However, the burden to prove the privilege could, in some cases, fall on the filmmaker who claims the privilege.

(d) Unfair Competition

The law of unfair competition restricts a person from misleading or confusing the public by leveraging upon the goodwill of its competitors. For example, if a person establishes a studio and calls it "Universal Studios," even though he is not related to Universal Studios in any way, he can be prevented from using the name or even the logo or mark of Universal Studios. The use of that name could confuse the public into believing the films are produced by the actual Universal Studios.

Thus, the names of persons or businesses can acquire trademark rights even if they are not registered (i.e. common law rights), provided that the public associates the name with a particular product or service. In Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., the defendant exhibited a pornographic film, Debbie Does Dallas, which portrayed a "Texas Cowgirl" engaged in sex acts. The character wears a uniform strikingly similar to that worn by the Dallas Cowboys Cheerleaders. Advertisements for the film showed the character in the uniform and included such captions as "Starring Ex-Dallas Cowgirl Cheerleader Bambi Woods." The Dallas Cowboy Cheerleaders brought suit alleging that they had a trademark in the particular combination of colors and the design of their uniforms. The court agreed and issued an injunction against further distribution of the film.²¹³

Therefore, filmmakers should be aware that if they portray people or products in a way that is likely to confuse the public as to the origin of a product, they might be liable for unfair competition.

(e) Privacy Protection

The right of privacy is the right to live one's life in seclusion, without being subjected to unwarranted and undesired publicity. While the U.S. Constitution does not mention the right to privacy, according to the U.S. Supreme Court, this right is implicit in the Constitution. Unlike defamation, a cause of action for invasion of privacy does not require any injury to one's reputation. Privacy actions typically fall into four factual patterns:²¹⁴

(i) Intrusion into one's private affairs;

(ii) Public disclosure of embarrassing private facts;

(iii) Appropriation; and

(iv) False Light.

In the case of Melvin v. Reid²¹⁵ a film that depicted a true story included certain unsavory instances of a person's life. The film used the real maiden name of the person who had since reformed, married and assumed a respectable place in society. The person successfully sued the producer for invasion of privacy. Therefore, while making a film, the producers and directors must ensure that they do not impinge on any individual's right to privacy.

(f) Right To Publicity

The right of publicity is the right that individuals have to control the use of their name and likeness in a commercial setting. The right to publicity is similar to the appropriation form of invasion of privacy. The main difference between the two is that while the right to publicity ensures that a person is compensated for the commercial value of his name or likeness, the right to privacy seeks to remedy any hurt feelings or embarrassment that a person may suffer from such publicity.²¹⁶

However, a problem arises when one person's publicity or privacy rights come in conflict with the rights of another person under the First Amendment. In such a case, the rights under the First Amendment are often paramount. For example, in the case of Hicks v. Casablanca Records,²¹⁷ Casablanca Records began to make a film about the well-known mystery writer, Agatha Christie. One of Christie's heirs brought suit alleging infringement of Christie's right of publicity. The Court held that Casablanca records could use Christie's name and likeness without the estate's permission, as the First Amendment rights were paramount to the publicity rights.