INTRODUCTION

This checklist provides an overview of issues that may arise when you use motion content you license from Kelly Mason Productions. The checklist is general in nature and not exhaustive. We cannot be too specific because it is your particular use that will give rise to legal issues. Prior to licensing and using images, we encourage you to consider the issues raised in this checklist. We also suggest that you contact your Kelly Mason Productions account representative. if you have any questions about our license or usage of motion content you license from us. In addition, we advise you to seek legal counsel to ensure that your use of our motion content will comply with all laws.

Also keep in mind that we have a large and growing library of motion content. Therefore, if you think you have selected motion content that may present legal issues, please contact your account representative and let us help you either confirm your belief, or let us help you find other acceptable motion content that does not present the same legal issues. Finally, please understand that we are not lawyers and cannot offer any legal advice. We can help you make informed decisions. It is up to you, however, to ensure that you are in compliance with our license and all laws.

When you review our motion content, you need to ask two questions: (1) Does your contemplated use violate the Kelly Mason Productions License (this is reviewed in Part One of the checklist below); and (2) Does your contemplated use violate the rights of a person shown in the motion content or the rights of a person whose property is shown in the motion content (these rights are reviewed in Part Two of the checklist below). In other words, in addition to our license requirements, you need to analyze what is depicted in the motion content and determine whether your particular use will require the prior permission from people in the motion content or the owners of any property in the motion content. Getting permission from people and property owners depicted in the motion content is called obtaining “clearance”. Keep in mind that when we use the word “property”, we also mean to include intangible property such as copyrights, trademarks and a person’s right of publicity.

Part One: Kelly Mason Productions License.

All motion content on our website must be licensed by you from us. Unless otherwise indicated on specific motion content, there are no model releases, copyright or other clearances. As discussed in more detail below, simply licensing motion content from us may not give you the rights that you require for your particular use.

You may want to use the motion content more times or in a manner not permitted under our standard licenses. Please call us to discuss how you want to use the motion content and we will make every attempt to accommodate your desire. We may be able to grant additional rights pursuant to the licenses we have been granted by the current owner, or, we may need to contact the current owner and negotiate additional rights. In either case, we are happy to discuss what types of rights you need and how best we can serve you.

The list of rights that may be negotiated include :

LENGTH OF TIME RUNNING. The time period in a licensing agreement during which a motion content spot may be used. This may be limited by the number of insertions during that time period.

LICENSE. Permission to reproduce, which may be limited by time, place, size, quantity or other consideration.

MULTIPLE RIGHTS. Licensing rights which cover more than one usage for the same motion content.

NON-EXCLUSIVE. The licensing of motion content which does not exclude the possibility of others using it in the same way, medium, territory etc. The opposite of EXCLUSIVE.

NUMBER OF TIMES USED. The total number of issues of any publication in which an advertisement will appear.

ONE TIME RIGHTS. A license granted for the specified single reproduction of motion content.

RE-USE. Second or subsequent use of motion content by the same publisher in a different publication. Compare to SECOND USE.

SECOND USE. Further use in the same publication. Compare to RE-USE. Not to be confused with SECONDARY RIGHTS.

SINGLE. A License granted for the specified single reproduction of motion content. See ONE TIME.

SECONDARY RIGHTS. Reprographic rights. The right to copy by Xerography or similar means, the fee usually collected through blanket licensing by Collecting Societies. Not to be confused with SECOND USE.

SPECIAL TERMS. Any unusual conditions or uses in a licensing agreement.

TERRITORY. The area and/or language for which a use is licensed.

USE. A non-specific term denoting the reproduction of motion content. It should be qualified by the specific terms of the license (e.g., medium, territory, etc.).

WORLD RIGHTS. A license to reproduce motion content in a specified medium throughout the world. In publishing usage languages would also be specified.

BUY-OUT. The license to reproduce motion content usually in advertising which may be without limitation in some aspect, e.g. number of insertion screenings, but still capable of limitation in others e.g., by territory, time, medium, etc.

COMPENDIUM. The license to rebind existing volumes to make a single further volume.

ELECTRONIC RIGHTS. Licensing of motion content for use in any electronic medium including but not limited to CD-ROMs, web sites, etc.

EXCLUSIVE RIGHTS. Reserved licensing of motion content which excludes others from obtaining similar rights for use of that motion content. This may be limited by industry or product or client type and time period. Compare to BUYOUT.

FIRST RIGHTS. The right to be the first to use motion content in a territory or a medium.

INTERNATIONAL RIGHTS. Cross-border rights granted at a fee determined by the home agent, which may be global or limited by language and territory.

LANGUAGE RIGHTS. Defines permitted languages.

Part Two: Clearance Rights.

1. Copyrights.

U.S. Copyright Law protects works of authorship. Works of authorship include the following categories:

Literary works;

Musical works, including any accompanying words;

Dramatic works, including any accompanying music;

Pantomimes and chorographic works;

Pictorial, graphic and sculptural works;

Motion pictures and other audiovisual works;

Sound recordings; and

Architectural works.

Authors of works get the exclusive rights to do the following:

To reproduce the copyrighted work in copies or photo records.

To prepare derivative works based upon the copyright work. For example, taking motion content and inserting it into a commercial would be a derivative work.

To distribute copies of the copyrighted work.

To perform the copyrighted work.

To display the copyrighted work.

A partial list of works protected by copyright include the following:

Books.

Plays.

Comic books.

Songs.

Musical compositions.

Recordings of music.

Photographs.

Quilts.

Choreography.

Paintings.

Drawings.

Sculptures.

Jewelry.

Fabric designs.

Architectural drawings.

Maps.

Computer programs.

Movies-including our motion content.

Copyrights do not need to be registered, but many are. One place to start in your copyright investigation is the U.S. Copyright Office. Its Website is: www.copyright.gov. You can conduct online searches yourself or contact the Copyright Offices Reference and Bibliography Section at 202-707-6850.

In addition to the U.S. Copyright Office, there exists various organizations that work with artists to license their copyrights in specific copyright categories.

2. Trademarks.

Trademarks can appear within motion content on buildings, cars, planes, electronic devices, clothing, and almost any of the things we use and see on a daily basis. Trademarks may be registered but do not have to be. One place to find an owner of a registered trademark is the government’s website at www.uspto.gov. You can also contact a professional search agency such as Thomson and Thomson to find both registered and non-registered trademarks. Its website is “www.thomson-thomson.com”:http://www.thomson-thomson.com/.

Trademark protection is also available for certain physical things. For example, film in a yellow box is associated with Kodak. Kodak has “trade dress” rights to sell film in a yellow box. Therefore, if something in our stock footage clip depicts another owner’s trade dress, or, if your use somehow would present a confusingly similar example of trade dress, you may need to obtain a license.

Finally, certain physical buildings or places are protected under trademark and/or copyright law. Over 150 buildings are registered trademarks. A building in public view is generally not protected; however, the artwork upon the building may be. For example, stock footage of a skyline may not require a license, but stock footage of an individual building, especially if it is unique or has art or ornate architectural designs applied to it, may require a separate license. The following buildings may require a separate license:

The Cadillac Ranch (sculpture of Pink Cadillacs sticking out of ground like Stonehenge)

Hollywood Sign

Mystic Marine Museum

Newport Mansions

Coca Cola World

Rock & Roll Hall of Fame

Rockefeller Center all buildings and sculptures

Beverly Hills Sign

Dartmouth College and the “tower”

San Diego Zoo

Eiffel Tower at night (the lighting design is copyrighted)

The Flatiron Building, NYC

The Chrysler Building, NYC

If you want to use an image of a building or place that is not as it normally appears, or is not ordinarily visible from a public place, it may be protected under trademark and copyright law. When you review motion content, you need to analyze it to determine whether any item depicted in the motion content will require trademark clearance from the trademark owners. For example: Are there items depicted in a piece of motion content that contain a trademark or trade dress? Is a building with artwork depicted in the motion content? Is a building depicted whose owners use it as a registered or unregistered trademark? Does the motion content have a mark or trade dress that is confusingly similar to another owners mark? If so, you may need a license in addition to our license from the trademark owner, his or her estate or agency.

3. Right of Privacy.

The right of privacy is a state law. Therefore, each state may define it differently. As a general rule, the right of privacy is the right to be left alone. If your use of motion content will result in the public disclosure of embarrassing private facts, it could be actionable by the person depicted in the motion content. A more likely scenario, however, is when motion content is used to present a person in “false light.” For example, Clint Eastwood sued a tabloid that used his photograph and reported he was romantically linked with someone other than the woman he had been involved with for many years. The claim was untrue and he sued the tabloid and won. Therefore, consider who is depicted in the motion content and how you will use it.

4. Right of Publicity.

The right of publicity is recognized in many but not all states. Some states, such as California, have very detailed laws relating to the right of publicity especially celebrities (living and dead). As a general rule, the right of publicity is the right of a person to control the commercial use of his or her identity. The right is infringed by an unpermitted use which will likely damage the commercial value of a persons right to control his or her identity. The use does not need to be false and the person does not need to be a celebrity. In terms of our motion content, you must ensure that your use does not violate a persons right of publicity. As a general rule, if a person is identifiable and the use is for a commercial use, then obtaining a model release is appropriate. For example, using motion content showing a crowded street may not require a model release because no one is readily identifiable. However, the same motion content with Michael Jordan clearly depicted in the crowd would require a release and probably payment of a separate license fee. In general, it is prudent to obtain a model release if there is an identifiable person in the motion content. Moreover, it is prudent to verify that your intended use is consistent with the terms of a model release. For example, a model may give a blanket release (you may use my likeness for any purpose whatsoever) or it could be restricted (you may use my likeness only in connection with promoting non-sensitive products or issues). If your use will be in a sensitive issue, it is advisable to contact us to see if there are any special restrictions. Sensitive issues may include the following:

Abortion and/or Pro-Life or Pro-Choice.

Aids/HIV (and other sexually transmitted diseases).

Alcohol.

Breasts and breast enhancements.

Contraception.

Drugs and substance abuse.

Guns and weapons.

Homosexuality and alternate lifestyle issues.

Nationalistic and/or religious fanaticism and hate groups.

Sexual issues.

Substance abuse.

Teenage issues (including: sexual and drug-related issues).

5. False Endorsement.

False endorsement is a form of false advertising and prohibited under federal law and many state laws. Federal law prohibits using motion content that would cause confusion or deceive as to the affiliation or association of a person or company with a product. For example, using motion content of Michael Jordan to promote a tennis shoe without his permission would likely constitute false endorsement.

6. Legal Disclaimer.

We are not lawyers and we cannot offer legal advice. This Checklist is intended solely to help identify issues for you to consider. For many of the laws discussed above, there may be either exceptions or defenses available to you. In addition, we have included in our Checklist U.S. law only. The motion content or models may be protected under foreign laws. Because our library continues to grow rapidly, we may be able to find motion content that avoids issues you have identified or clear the motion content for your specific usage.

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