Copyright Crosses Borders

George Rush November 16, 2010

Selecting the perfect soundtrack to accompany a newly created film is no easy task. After the breakup scene, should the melancholy introspection scene be accompanied by The Cure's “Boys Don't Cry” or Foreigner’s “I Want to Know What Love Is?” Which song really captures the essence of being an impotent wuss? Which lyrics fit better? Once the song is selected, for how long should it be played? The creative process of choosing the right music for a film seems limitless. But it's not.

Most people familiar with the entertainment industry in the United States have some understanding of the concept of copyright law. A copyright grants an original creator a right to copy and distribute a work for a period of time. Therefore, if a filmmaker wants to include a tragic pop song by Robert Smith or Mick Jones into a film, then a license usually must be obtained from the musician. Usually a particular version of that song (the popular recorded version) might be controlled by the company that recorded the song. In such a case, the permission of the musician's record company must be acquired as well. Avoiding disaster while using a hit pop song in a film usually means finding the right people to get permission from then talking those people into letting you actually use the song.

Easy enough to understand. However, what does this mean for the savvy filmmakers releasing work outside the United States and into the international market? Can copyright issues be avoided without using a license if a work is simply released in a country other than the United States? Unfortunately or fortunately (depending on whether you are an owner of a lucrative copyright or not), copyrighted work in the United States is protected in most foreign countries. Take the following example.

Post-production is coming to an end on your goth-punk-teenage romantic-comedy and you finally found the perfect market to premier the film: Estonia. While acquiring a license for “Boys Don't Cry” or “I Want to Know What Love Is” may pose too difficult of a task in the United States, you feel that you could maybe get away with using the songs without a license in a small, obscure foreign country. But as a righteous law abiding citizen or simply a practical filmmaker preferring to avoid a costly lawsuit, you ask, “What is the extent of international copyright?”

Technically, there is no international copyright law that will protect a work in every single country in the world. However, every country has its own set of copyright laws. In addition to all of these national laws, most countries protect foreign works under various international copyright treaties or conventions. For instance, Estonia is a member of the Berne Convention for the Protection of Literary and Artistic Works. The United States is also a member, as is the overwhelming majority of the countries in the world. Each member of the Berne Convention agrees to recognize the copyrighted works of other members in the same way they recognizes the copyrights under their country's own laws. This means that “Boys Don't Cry” and “I Want to Know What Love Is” are protected under Estonian law in the same way that Estonia protects the work of its own national citizens. Be aware that there could be differences between Estonian and U.S. copyright law, but many of the international treaties that the U.S. is a party to agree to certain uniformities.

It is important to remember that international treaties and conventions work both ways. Consider the following situation. You find a really awesome Estonian song called “I Want to Know What Crying Is” and want to release it in a film in the United States. Can it be used without permission? Most of the time the answer is going to be “no.” Since the United States is a party to the Berne convention, it will treat an Estonian copyright the same it treats its own copyrighted works, which is with a high level of protection. Chances are that making use of the Estonian “I Want To Know What Crying Is” in a film will require permission from the specific Estonian artist or company that recorded the song.

Not every country in the world is a member of the Berne convention, nor is every country necessarily a party to any copyright treaty at all. For instance, Afghanistan, Ethiopia, Iraq, and Iran have no international copyright agreements shared with the United States. Even though these countries give no assurances to United States copyright owners, most of these countries, such as Iraq, still have their own set of national copyright laws. Also, these countries may even have bilateral copyright agreements with other countries. So other than the obvious dangers of releasing a film with unlicensed copyrighted material in Iraq (see the news), there also might exist the threat of legal consequences.

For the filmmaker considering releasing a film in an international market or using a foreign copyright in the U.S., it is important to take precautions in a similar way as releasing a film in the domestic market with purely domestic copyrighted works. This involves selecting one of the handful of ways of lawfully using another person's work in your film. The main way is you can simply get the permission of the person who currently owns the copyright by a license agreement. This is easy in theory, but it might require time to figure out who owns the rights you want to acquire and it may be costly to obtain those rights.  If the song is obscure, that just adds another layer of difficulty in obtaining the rights.  There is also music that falls in the public domain, and music sometimes may fall under fair use protection—but this is not the norm.  More often than not you will have to obtain a license.

As much as we all adore other cultures and traveling overseas, to the extent that some of us are fortunate to release films abroad, it is easy to get stuck in the mindset that our films are only effected by the laws of the United States. Remember, that other countries have laws too, including copyright laws, and these laws apply once a filmmaker releases a film in a foreign country. Still, be a creative thinker and filmmaker. Do what you can to use the music that best fits your film. But don't be so creative with your legal reasoning that you go on to believe that releasing a film abroad is an automatic loophole to make use of any work you want.  One of the most frequent mistakes I see filmmakers making is thinking an obscure work is a clear work to use.  Just because none of your friends have heard of something, doesn’t mean that the creator of that song would be OK with you using it without their permission.

More often than not, treaties, conventions, and certain national laws will limit what works you can use in your film. So if a song totally rocks and you want it on your soundtrack then pursue it through one of the legal means to get it in your film. Indeed, this has been a season of heartache for my beloved Cal Bears.  So when I assemble a reel of lowlights and put it to music, I hope there is an Estonian song called “I Want to Know What Crying Is” for me to lawfully license, because it would absolutely nail the impotent wussiness of being a Cal football fan. 

Thanks to my intern Jacob Rossman with assisting me with this article—he is the opposite of an impotent wuss.