This article originally appeared on Moviemaker.com on March 3, 2017. Republished here with permission.
Q: I’m making a film and I’d like to use a quote from a famous person in the script. Are quotes considered intellectual property and if so, would I need legal permission to use one?
As a general rule, if you have to ask “do I need legal permission,” the answer is almost certainly yes. Lawyers tend to be conservative creatures. We don’t like loose ends or vagueness, so we will always tell you to get permission, even if using the quote wouldn’t necessarily open you to liability. After all, why run the risk of guessing and then getting sued when you can simply ask and get a straightforward answer? It’s always easier to ask permission than to beg forgiveness later.
Remember too that the film industry isn’t run by creative people. It’s run by businessmen and lawyers. Most movie studios won’t buy or distribute your movie if there are any issues that could open them to liability (at some point, the studio will have lawyers do a review specifically to look for those issues) and most festivals won’t screen it either if you can’t prove you’ve acquired all the necessary licenses. Simply getting your movie seen can be impossible if you’re not careful.
Further complicating matters is the fact that the law surrounding this stuff isn’t cut and dried. Quotes are absolutely considered intellectual property, but the type of intellectual property depends on a variety of factors. For example, copyright law typically doesn’t protect short slogans or phrases because there isn’t the requisite level of artistic expression. Instead, short quotes will more likely qualify for trademark protection. However, trademark law only applies if the quote is designed to identify a good or service. Or, to be reductive about it:
Copyright = Art
Trademark = Commerce
So if the quote you want to use is too short to qualify for copyright protection, but not used in conjunction with a business, what law, if any, applies?
Length isn’t the only relevant factor either. The nature of the quote, its purpose, its originality, the medium it appears in and its context are all incredibly important when considering which laws apply. Charles Foster Kane’s immortal last word, “rosebud,” in Citizen Kane may only be a single word, but its inherent meaning within the film (it drives the entire plot) and the fact that it was written into the screenplay make it significant enough to qualify for copyright protection. But if the quote isn’t “fixed in a tangible medium of expression”—that is to say, it was merely said as opposed to written down—then copyright law doesn’t apply anymore, and you’re back to square one.
Another thing we lawyers would consider: What’s the context of your use? If a character in your movie merely utters the quote in passing, it’s different than if the quote is the central thesis of your film. In 2013, the William Faulkner estate sued Sony for paraphrasing a line from his novel Requiem for a Nun in the Woody Allen film Midnight in Paris. The case against Sony was dismissed because, among other reasons, the quote was such an insignificant part of the film that the judge couldn’t see how Faulkner’s estate was harmed by Allen’s use of the quote. Even if you figure out the applicable law, the way you use the quote matters greatly.
But the analysis doesn’t end there. There’s also the matter of whether the quote could possibly infringe the publicity rights of the figure you’re quoting. Everyone, celebrities and lay people alike, have the right to control their public image. The use of a quote that is inextricably tied to them could impinge their right not to have unauthorized commercial uses of their name, likeness or other recognizable aspects of their personality used.
I could continue, but I think you get the point. Asking for permission settles the question then and there. Winging it and hoping you won’t get caught—or that your use will be considered fair use—is much riskier. So my advice is this: Whether or not you legally have to get permission to use a famous quote, do it anyway and save yourself the hassle later on. Or at the very least, talk to an intellectual property attorney before going down that road.