The Clearance of audiovisual works, in a common misinterpretation, is revising scripts, movies, or series along with creators, and telling them that they must remove all third party trademarks, artworks and copyrights, trade names, and in general that they have to limit themselves only and exclusively to what they have invented. Many creators are used to lawyers that have the NO on their forehead and that with excessive conservatism, they might even reach the point of cutting the creativity.
There are some myths that we would like to address in this publication:
- It is not the same discussing the inclusion of artworks than to speak about trademarks or real names. While freedom of speech protects certain uses of real names and trademarks, with some limits, in Colombia is not completely clear whether such exemptions apply to copyrighted works. Moreover, Caracol Televisión S.A. was condemned for using the artwork “Tres Caballos en la playa,” in the series “La Selección” by Colombian specialized copyright court. It was said that there no “incidental use” exemption for copyrighted works.
- One has no copyrights over one’s life. In the cases Relatos de un Náufrago which had as protagonist Nobel Prize Gabriel García Márquez, as in the case of the movie “La Mujer del Animal” from Victor Gaviria, Colombian case law made it clear.
- It is not the same speaking about famous characters than to do it of those who are not. Unknown persons have a reinforced right of intimacy, while the persons that have become famous have it more limited. That is what the Constitutional Court has resolved in various cases, some of them concerning the famous vallenato singer Diomedes Díaz.
- Even though that without a doubt in there is a right of image in Colombia (which applies for famous and non-famous people) and undue exploitation of someone else’s reputation is forbidden, for example, from the advertising perspective (as it was shown in a case that faced a Colombian company with Juan Pablo Montoya some decades ago), that does not mean that anytime a motion picture is done, authorization from the persons whose names are going to be used is required. If they are famous people, the use of the name is among what is permitted by freedom of speech. Of course, always without violating their right to a good name and honour.
OlarteMoure Litigation and Entertainment areas have advised more than 20 audiovisual productions without a single claim filed yet against them.
Juan Felipe Acosta
Partner | Litigation and ADR Director