Independent Filmmakers Walking the Tightrope: Legal Compliance vs. Creative Expression
Hollywood becomes the main character in any discussion of the film industry. The American movie scene has had a tremendous influence over creative expression in the entertainment world.[1] From classics like Casablanca (1942), to more recent successes like the Barbenheimer phenomenon, cinema has embedded itself into the deepest corners of pop culture and plays a large role in economic contributions. Globalization continues to expand the film industry’s reach and saturation.[2] However, with this growth, copyright law has become a double-edged sword.
Copyright Dangers and Problems in the Modern Era
As the oversaturated entertainment industry becomes increasingly litigious, intellectual property regulations have become more complex, which has significantly increased the difficulties of navigating compliance obstacles.[3] In today’s age of heavy litigation, smaller independent filmmakers especially face more difficult hurdles, as legal guidance has become a practical necessity in every stage of production.[4] Larger companies employ in-house counsel to manage a range of legal issues, such as contracts, copyright and trademark, employment, and financing.[5] Still, outside counsel is often utilized to gain more specialized insight, because the in-house legal team may be unable to properly address every legal concern.[6] Indie filmmakers often forego preventative measures due to financial barriers or lack of awareness.[7] However, such sacrifices can lead to detrimental legal disputes that halt production or even shut down a project altogether.[8] Copyright law has become weaponized, as a multitude of infringement disputes can arise during production such as music licensing, geographical restrictions, and similarities in plot lines.[9]
The original purpose of copyright law was to promote intellectual and creative innovation by protecting an author’s exclusive rights to their works.[10] However, the proliferation of copyrighted content has created intensified infringement disputes; litigation may ensue over minute usage of protected material.[11] Movies are often filmed in public areas where a multitude of items in the background can create a copyright issue. This makes it very difficult for filmmakers to work through their creative process because the absolute avoidance of other licensed representations, while working in public settings, is near impossible. Production must be accompanied by a keen legal eye to minimize copyright violations in the background of camera shots, to secure proper licensing of media usage, and to monitor representations of likeness throughout the production process.
The director and producers of Together (2025), an initial independent horror film, were accused of copyright infringement after the initial showing at a festival.[12] The plaintiffs sued and claimed that Together had numerous unoriginal elements, including the film’s concept—allegedly stolen from a project that the plaintiffs had pitched in 2020.[13] Despite dissimilar genres, the plaintiffs highlighted similarities between their comedic film, Better Half, and Together.[14] While the case has not been settled, it serves to demonstrate how films can be picked apart to find infringing similarities.
With countless films, manuscripts, and an infinite number of unadapted books, copyright infringement claims can easily attach to works that may have been born from spontaneous and independent creation. This seems especially true when a film finds great success; many people come out of the woodwork, alleging infringement, hoping to get a portion of the credit. Large production companies can easily settle these claims, or they can retain personal legal counsel to preemptively avoid liability altogether. Independent filmmakers, on the other hand, are greatly disadvantaged by having to navigate the numerous obstacles and legal pitfalls alone.
Most copyright claims often fail in court, while a greater majority settle before litigation.[15] However, the cost of litigation and the damages to one’s reputation can hold detrimental consequences, especially for independent filmmakers—possessing less access to preemptive legal counsel, less resources for extensive damages, and a higher reliance on revenue from the success of their films.[16] Consequences can include anywhere from civil penalties and criminal penalties, to reputational harm and financial impacts.[17] Returning to Together, although the film’s representative claimed the suit was frivolous, the film’s popularity has exposed them to public scrutiny.[18] A film’s reputation and media perception greatly impact its success markers, such as ratings and box office performance.[19] Negative associations with the film can deter new audiences, divide the consumer base, and divert attention from the film to its legal disputes.[20] Not only is this unfavorable to investors and the film company, but the creatives that are involved lose the public’s interest in their artistry.[21] This reputational harm can also impact future endeavors as well.[22]
Fair Use & Protecting Creatives
Indie filmmakers must make it a priority to acquire some form of competent legal counsel, to familiarize themselves with proper licensing regulations and fair use issues. The fair use doctrine gives filmmakers a safety net, to cushion the extreme fortifications of copyright regulations.[23] This doctrine serves as a limitation and a defense to the complete exclusivity that copyright owners possess.[24] The usual fair use allowances that courts have agreed upon would include purposes of criticism, comment, or parody.[25] The fair use doctrine allows the use of otherwise legally protected works by assessing four factors: (1) the purpose and character of how the creatives use the original work; (2) the nature of the protected work; (3) the extent to which the original work is used compared to the original; and, (4) the effect the usage has on the original, in terms of impeding on potential market value.[26]
Factor 1 focuses on whether the new work used the original work to add new commentary or transformation. Courts have more leniency for drastically or attenuated uses from the copyrighted material.[27] Factor 2 balances whether the original work is more factual or creative. Courts have distinguished creative works, finding them to be more original in nature and have, therefore, afforded them greater protections.[28] Factor 3 assesses whether the portion used in the new work is an unsubstantial or non-central part of the original work.[29] Courts will be more inclined to protect key elements of copyrighted material.[30] Factor 4 looks at a broader picture, analyzing whether the use of the copyrighted material would negatively impact the market.[31] If the original work can be easily substituted by the new work, courts will likely disallow a defense under the fair use doctrine.[32] The fourth factor is often regarded as the most important, because the consequences that could arise from allowing such use would be unfair for the copyright holder.[33]
Although these factors serve as guidelines, film copyright disputes often take on a variety of forms, making the assessments complex.[34] Courts analyze these disputes on a case-by-case basis.[35] This makes litigation extremely unpredictable, because a single detail can shift a court’s decision to a completely different result from a similar case.[36] The rationale for this doctrine balances creative freedom for the public, while still prioritizing the copyright holder’s rights of exclusivity and personal use to a reasonable extent.[37] Generally, when the contested usage does not impede on the original owner’s use, and the use is transformative, so as not to directly compete in the owner’s market, fair use has been granted.[38]
The fair use doctrine is often a useful defense for appropriate usage of copyrighted materials but does not give the user full legal claim.[39] This doctrine also places the burden of proof on the defendant.[40] The uncertainty of success for a fair use defense, paired with the overwhelming cost of litigation, gives all the more reason for independent filmmakers to prioritize early forms of mitigation and protection.[41]
The film production industry faces great obstacles during the creative process, and this is especially true for independent filmmakers. The legal oversight necessary to navigate legal regulations is understandably unfathomable to a lay individual. While the fair use doctrine offers independent filmmakers some flexibility around copyright laws, they are frequently deprived of certainty. Fair use cases are decided under specific circumstances, so litigation frequently produces unpredictable results. Moreover, litigation can greatly damage the reputation of a film and its creator, even deterring consumers from future projects. Balancing the demands of legal oversight against a filmmaker’s creative vision is one of the biggest challenges. It is important to seek legal counsel and stay informed about the legal hurdles within the film industry. Longevity and success depend on awareness. The public should focus on enjoying the films themselves, rather than focusing on the drama.
[1] Allen J. Scott, Hollywood in the Era of Globalization, Yale University (Nov. 29, 2002), https://archive-yaleglobal.yale.edu/content/hollywood-era-globalization#:~:text=American%20films%20always%20garner%20at,tastes%20in%20many%20different%20cultures.
[2] Id.
[3] Id.
[4] Indie Film Legal Issues, Counsel for Creators (Aug. 17, 2022), https://counselforcreators.com/log/indie-film-legal-issues/.
[5] Id.
[6] Id.
[7] Indie Film Legal Issues, Counsel for Creators (Aug. 17, 2022), https://counselforcreators.com/log/indie-film-legal-issues/.
[8] Id.
[9] Amit Jaju & Lucina Roy, Legal Disputes in the Digital Content and Streaming Industry: Challenges and Solutions, Ankura (July 31, 2024), https://angle.ankura.com/post/102je3v/legal-disputes-in-the-digital-content-and-streaming-industry-challenges-and-solu#:~:text=1.,legal%20challenges%20and%20antitrust%20concerns.
[10] U.S. Const. art. I, § 8, cl. 8
[11] Jaju, supra note 9.
[12] Gene Maddaus, Alison Brie and Dave Franco Face Copyright Suit Over $17 Million Sundance Hit ‘Together’: ‘A Blatant Rip-Off’, Variety (May 13, 2025), https://variety.com/2025/film/news/alison-brie-dave-franco-together-copyright-lawsuit-wme-1236390539/.
[13] Id.
[14] Id.
[15] Strategic Considerations in U.S. Copyright Litigation, FindLaw (June 13, 2017), https://corporate.findlaw.com/intellectual-property/strategic-considerations-in-u-s-copyright-litigation.html#:~:text=The%20Costs%20and%20Uncertainties%20of,and%20trial%20may%20be%20necessary.
[16] Id.
[17] Id.
[18] Maddaus, supra note 12.
[19] The Impact of Social Media Reviews on Box Office Success, Millennial Public Relations (August 13, 2024), https://www.millennialpublicrelations.com/blog/the-impact-of-social-media-reviews-on-box-office-success#:~:text=These%20platforms%20have%20democratized%20film,might%20struggle%20to%20attract%20audiences.
[20] Id.
[21] Copyright Compliance and Public Performance, Swank Motion Pictures, inc., https://www.swank.com/copyright-homepage/#:~:text=Leaves%20individuals%20open%20to%20embarrassing,their%20copyrights%20are%20not%20violated.
[22] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
[28] Id.
[29] Stewart v. Abend, 495 U.S. 207 (1990).
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[35] Id.
[36] Id.
[38] Stewart v. Abend, 495 U.S. 207 (1990).
[39] Copyright vs. Fair Use, OpenLab, https://openlab.citytech.cuny.edu/whatiscopyright/fair-use/#:~:text=Copyright%20and%20fair%20use%20tend,what%20is%20considered%20fair%20use.
[40] Id.
[41] Indie Film Legal Issues, supra note 4.