By Daniel Nazer on April 26, 2012 at 1:33 pm
The clearance culture is the set of norms and practices within the entertainment industry that mandates—whether or not the law actually requires it—that every scrap of copyrighted or trademarked material be cleared with the original rights-holder. While copyrighted material often does need to be licensed (e.g. soundtrack music), the clearance culture imposes burdens well beyond the law and has become a self-perpetuating and self-serving system of self-censorship.
The first step of the clearance culture dance is getting a script clearance report. The reports, which are provided by companies with names like Clear Everything and Clearance Unlimited purport to identify all risks in the script before production starts. Understandably, these reports take a conservative approach. But while some conservatism is understandable, the clearance culture sometimes takes things to a ridiculous extreme. For example, one screenwriter received a script report recommending he clear a mention of Noah from the Bible. As he noted, who was he supposed to clear it with? God?
In script reports I have reviewed, two pernicious clearance culture myths jump out. The first is the suggestion that any depiction of a trademark must be cleared with the trademark holder. This is not a requirement imposed by law. See Wham-O, Inc. v. Paramount Pictures, Corp., 286 F. Supp. 2d 1254, 1263 (N.D. Cal. 2003). Indeed, the Ninth Circuit has strongly affirmed the fundamental free speech rights of creators to depict trademarked goods in their art. See Mattel v. MCA Records, 296 F.3d 894 (9th Cir. 2002). Nevertheless, script clearance reports will typically flag any mention or depiction of a trademark as problematic (though some services suggest that commercial identification of products is acceptable in feature films).
Requiring clearance of trademarks burdens free expression because it gives corporations a private right of censorship over depictions of their goods. Trademarked products are an integral part of our lives and art is impoverished if we are not allowed to tell stories about the real world. As Judge Bird wrote 30 years ago, no "author should be forced into creating mythological worlds or characters wholly divorced from reality." Guglielmi v. Spelling-Goldberg Prods., 25 Cal. 3d 860, 869 (1979) (Bird, C.J., concurring).
The second dangerous myth of the clearance culture is the suggestion that creators require permission to mention or depict real-world government agencies. Script reports I have seen sometimes include language like "avoid identification of any law enforcement organization by name, badges, patches, or vehicle markings." It seems that we must even ask our own government for advance permission to tell stories about it.
Thankfully, there is no legal authority requiring a creator to ask permission to use the name of, or depict, a law enforcement organization in a fictional work. Indeed, any such rule would raise very serious First Amendment concerns. So why would anyone suggest otherwise? It seems to be a pure invention of the clearance culture. The argument runs as follows: you should ask permission because everyone else asks for permission.
Hollywood’s self-imposed culture of censorship has real consequences. We see the ridiculous practice of trademarks being blurred in television shows. Other self-censorship is more worrying. For example, the FX series "The Shield" was originally to be named "Rampart" (for the scandal-plagued LAPD precinct) but was renamed under pressure from the LAPD. We can only guess how many productions never even make it off the ground because of self-censorship.
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