Avoiding lawsuits is a major but little-known job in film and TV

Lauren Krugel, The Canadian Press</span>
Published Sunday, June 4, 2017 10:37AM EDT

CALGARY -- Someone on the set of the TV series "Fargo" liked the pop of colour a vintage clown game gave to an ominous scene in a dank, cluttered basement, so they moved it forward in the shot.

The problem? After the scene was filmed for the second season, the studio wasn't sure it could show the garish carnival game without being sued -- even though it's there for less than 10 seconds.

"Several high-level MGM executives spent weeks on that clown game," producer Kim Todd recalled during a recent visit to a Calgary sound stage where Season 3 was being filmed.

Countless hours go into making sure anything featured in a TV show or movie -- whether it's a character's name, a brand-name product or a work of art -- won't get the studio into legal trouble. Outside businesses are hired for what's known in the industry as clearance -- scouring scenes for any potential pitfalls and flagging them in reports for studios.

It took some detective work, but the "Fargo" clearance team eventually tracked down the maker of the clown game in Montreal and got the permission it needed.

Hunting down the rights owners of tacky garage-sale tchotchkes for the show's second season, set in the 1970s, was a huge undertaking. Ditto cheap figurines manufactured by the millions in China.

"Bad art is a character in 'Fargo' -- it just is," said Todd.

Frustrating as it is, she said she understands where the clearance folks are coming from.

"It's this plodding thing and I have to be very respectful of people who do it because they're working for the studios who don't want to get sued."

Characters have also caused headaches on occasion. Ray Stussy -- one of two brothers played by Ewan McGregor in the show's third season -- came up as a potential problem after the name had already appeared in the show's promotional material.

It turned out that the real Ray Stussy the clearance team found is an African American man in his 70s -- different enough from the one on the show to quell any potential concerns over using his likeness.

Jim Erickson, a retired set decorator who won an Oscar for his work on the 2012 film "Lincoln," said clearance concerns were a huge headache at times during his 40-year career.

When he first started out, it wasn't so much of a problem. But then in the '90s, studios appeared to get increasingly nervous about litigation.

Working with the clearance team to track down permission for items used on set became such a big job that he had to eventually hire someone full-time just for that.

"So the legal department was starting to dictate what we could or couldn't put on sets and that was really, really disturbing," Erickson said from his home on B.C.'s Salt Spring Island.

"I was in fights all the time and I would just always lose."

Clearance is required for studios to get errors and omissions insurance -- similar to malpractice insurance in the medical field -- for their productions, said Amy Lennie, president of The Rights Company.

The Toronto-based firm does intellectual property rights research and clearance for films, television shows, web series and video games around the world.

"They need to cross all the t's and dot all their i's to make sure that things are done properly and any potential lawsuits out there are not going to happen," she said, adding most in the industry understand how important it is.

"Everybody's a professional and they're reasonable people. It's common sense."

Ideally, all clearance quandaries are tied up before shooting even begins, said Chad Mathis, a Los Angeles entertainment lawyer and founder of The Clearance Lab.

Slip-ups can be fixed in post-production, but it's expensive.

Mathis said clearance tends to trip up those new to the business who might not even think about it until after they have a distribution deal.

"It kills a lot of projects, failure to pay attention to these matters," said Mathis.

"It's easy to get wrapped up in the creative -- and you should. But you can't leave out the rest, or you won't be around for long."

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