Do I Trademark My Documentary?

Dear Rich, I am filming a documentary. Should I trademark it? Should I brand my documentary? How do I do that? Just in case you don't understand what a trademark is, we provide some background here. We can save you some time --  a single book title or movie title cannot be registered at the U.S. Patent and Trademark office. You can, however, register a title that's part of a series, for example, the Up series. (Here's an article with some workarounds for acquiring trademark protection for single movie titles.)
Branding. We remember when "to brand" meant to burn the flesh of an animal to indicate ownership. Ouch! Nowadays, of course, it refers to all kinds of marketing stuff typically related to a product or service line. In addition to product branding, there's personal branding, faith branding, nation branding, and employer branding. We're going to assume that branding your documentary means that you want to expand your "product line" to as many happy customers as possible. We couldn't tell you how to do that and if we could, we'd probably be doing something else.

He Wants to Use B-Horror Movie Samples

Dear Rich: I have two questions but if you guys are too busy then I think the first one is the most important. I'm recording an EP with my band and we've been considering the idea of using audio samples from maybe a few horror B-movies. I've tried searching the blog for a similar question but no luck so far. I've heard that maybe a few seconds doesn't count as infringement? Our other concern is: A few months ago we found a picture which is basically a scene from a very popular movie. We edited a lot and placed the band name on top of it and then joked about making a limited run of T-shirts with that image on it. Turns out people did like them and asked if we were going to make them. Some say that since we edited the image that we now own that image, but It doesn't really reassure us that much. Would we get in trouble if we sold a few or even give them away? The blog already has helped us a lot and I'm thinking of buying your Music Law book on Amazon. Hmm... You're thinking of buying our Music Law book? Is that a passive-aggressive incentive? Will we close the sale by answering? (Or perhaps if we do answer, will you be less likely to buy?)
Right, you had two questions. It is infringement to copy audio samples from B-movies. Taking a few seconds may qualify as a fair use -- though keep in mind that at least one court has (perhaps illogically) held that taking any audio sample (regardless of its size) violates the sound recording copyright. You're okay to use the samples if the film is in the public domain. (Note, even in public domain films, composers have claimed separate musical copyright.) You may be able to defend your activities depending on the fair use factors. But as we always point out, you can only "win" a fair use argument if you're prepared to fight it in court. Considering the vast amount of unchecked sampling, we think the bigger issue is whether the owner of the B-movie rights will ever learn of your use, or will care if they find it.
Using the movie picture on a t-shirt. If you edited the image you can stop others from using your modifications. But you don't "own" the image. You only own what you added. The owner of the underlying copyright can still stop your derivative use. We don't know if you would get it trouble for using the image -- BTW, it wouldn't make any difference whether you sold them or gave them away for free. Again, that's a matter of anticipating the likelihood that the film's copyright owner would spot your use and care. Our guess is that you'll fly below the radar. (We answered a related question in a previous entry.)

Night of the Living Kids Book

Dear Rich: I work for a children's publisher and one of the things we periodically produce are young reader editions of horror classics, such as Dracula and Frankenstein. In the last decade, another horror favorite has risen (from the grave) in popularity: the zombie. Now, the ur-text for the zombie, as people today think of them, is the 1968 film 'Night of the Living Dead'. Famously, the original film is in the public domain owing to some error made by the production company. So my question is, does that mean the story itself is public domain, too? For example, would it be legitimate to produce a book using the same name, character names and plot? Or, failing that, would it be legitimate to produce a book that copied the story but went under a slightly different name (e.g. 'Night of the Zombies'), and changed the character names? Copyright experts agree that the 1968 film, Night of the Living Dead, is in the public domain in the U.S. and -- thanks to a case involving a 1962 John Wayne film -- so is the underlying screenplay. That would leave others free to duplicate the story, plot and dialogue and create derivatives.  The characters such as Ben, Barbra, Harry, Helen, Tom, and Judy, would also fall into the public domain, as this case has indicated. Finally, the title of the work has also passed to the public domain as the Supreme Court has held that the title of a work that enters the public domain cannot be protected as a trademark. Which means that a children's re-telling, as you propose, would not violate U.S. copyright law. However, your derivative work could only be protected to the extent of any new or "incremental" material added to the original.
Muddy waters. Although the story, title, plot, dialogue, and characters are in the public domain, the original screenwriters (George Romero and John Russo) went gone on to create copyrighted sequels and remakes of the original using the same characters. (The two screenwriters couldn't agree on a sequel and Romero acquired the right to movie sequels using "Of the Dead" and Russo acquired rights to "Living Dead" movie sequels. Russo also went on to create a series of Night of the Living Dead comics using the characters and plot from the original.) No trademarks have been federally registered for "Night of the Living Dead" for books but the comics publisher has a reasonable claim that the term is used as the trademark for the series. All of this adds to the confusion surrounding copyright (and explains why a squadron of would-be and oft-bogus enforcers swoop down in opposition whenever the film is loaded on YouTube).
Bottom Line Dept. We think the coast is clear for a young reader's edition in the U.S. but you may want to get an opinion letter from a copyright/trademark lawyer, if possible. You have a good chance of prevailing on copyright claims but we think your activity may possibly attract lawsuits, anyway. In addition, we can't confirm copyright status of the film in the U.K. (where you're located).
BTW ... For those interested in "monetizing" the film, it's also unclear whether certain "separable" elements of the film are also public domain -- for example, the music (credited at different times to William Loose and Fred Steiner and to Scott Vladimir Licina), and the trailer for the film.

Re-Drawing Movie Still at a Website

Dear Rich: I saw your entry on "Using Movie Stills at a Website." What if I draw a picture from the scene? Is that still copyright infringement? Would the quality of reproduction also have a factor (i.e. a very realistic recreation of the still vs. something more paint-like)? As we mentioned last February, unauthorized reproductions are infringements unless excused by a defense such as fair use. The same rules apply for unauthorized derivative works and these can trigger the same legal responses as straight infringements (as Shepard Fairey learned when he created his artsy Obama Hope imagery -- which has triggered its own derivative infringements). You don't protect yourself by making a more "artistic" derivation.  It's infringement as long as a lay observer believes that the underlying (or preexisting) work has been copied (for example, as in the example, above). In any case, this legal mumbo-jumbo we're spouting is ignored by millions of people on the web every day. So, the real question is whether your creation of an unauthorized derivative work based on a movie still will make somebody so mad that they'll come after you, take your home, car and new Mac laptop. As usual, we couldn't tell you ... though as we've mentioned before, you're likely to be better off if you use smaller images (thumbnails are best), you don't poach from popular licensing sites such as Getty Images (that regularly troll for their digital fingerprints), and you don't use the image more than once, or for commercial purposes such as merchandise. And of course, the popularity of your site may also make you a more likely target.

Can We Make Custom Movie Posters?

Dear Rich: I have a question for you. We run a theatre here in Ottawa, Ontario and wanted to start creating our own 'promotional posters' for upcoming movies. Our movies are mainly cult classic and B-movies anywhere from 1940 to 1980. We would like to hire an artist to create a custom promo poster advertising the showing of the film at our theatre. We pay for rights to play the film, but we're unsure if we are allowed to create these custom movie posters. Also, we would like to print a limited supply of these posters, say 100 – 200, to offer souvenirs from our theatre. Do you have any idea if this would be breaking the law? I see this done a lot for music venue's (the resale of music venue posters), but never for theatres. Any advice would be awesome! Wow, will you be showing our favorite B cult movie, Carnival of Souls? We loved that movie when we first saw it and still love it today (and the fabulous soundtrack). And just as the lead character moved in and out of reality, the film moved in and out of copyright. Some claim it is in the public domain while others claim that a chain of title has been reestablished.
Right, you had a question. We love your theater for presenting older films (no subwoofers needed for these movies) and we love your theater for making original posters of the film. (Can we pre-order Carnival of Souls?). We hope our love for you doesn't affect our judgment but the short answer is that we think your creation and sale of movie posters will probably be fine.
The difference between music posters and movie posters? Yes, there is a diff. Movie posters usually include copyrightable elements from films or copyrighted characters from those films -- think Sam Spade, Superman, or the Terminator. That's not the case with music posters where the emphasis is on the artwork and the event. We bring that up because the only way we can see you tripping any alarms is if you use copyrighted stills or imagery from a film (or as in the case of this lawsuit, you copy a non-film copyrighted image into your poster). But if we were a betting blog, we'd bet that the copyright owners of these films (if they are even aware of your use) won't bother chasing after a hip Ottawa movie theater which may after all, be one of the few paying venues showing such films. Takeaway: If you're really paranoid, keep in mind that the more original the poster -- and the less use of stills from the films -- the less chance for hassle.
This just in from our CYA Dept., We're not experts on Canadian copyright law which differs in many ways from U.S. Copyright law (also, note the distinction between "fair dealing" and "fair use").