Download - Documentary Film Law 101
Legal Workshops for Filmmakers:Doc Law 101
Presented by:
Deborah Gonzalez, Esq.
2
This presentation is for educational purposes only and does not constitute legal advice. It is recommended that you seek legal counsel for specific matters.
DISCLAIMER
Overview
The development and production of documentary films and shorts have a host of different legal considerations we will discuss in this two-hour session. Topics include: life story rights, trademark and copyright considerations of third-parties, liability for defamation and publicity rights violations, and more.
Documentaries have become an increasingly important part of the
film industry as well as tools of public discourse.
~ John M Garon
Role of Documentaries
Crafting short-form documentaries is becoming part of the core competence for journalism majors, since the ability to write the story, film the content, edit
the narrative, and publish the work reflects the fundamentals of multimedia
journalism today.
~ John M Garon
Role of Documentaries
Documentary Statistics
http://www.the-numbers.com/market/genre/Documentary
Documentary Statistics
Documentaries & Oscars
Documentaries & Oscars
Documentaries & Other Awards
Documentaries & Other Awards
Documentaries & Other Awards
Documentaries & Other Awards
Documentary Feature Film Winner - Getting to the Nutcracker
Documentary Feature Special Jury Prize - WEB
Players
Film Studios (Paramount, Warner, Disney) Production Companies (Miramax, Castle
Rock, New Line Cinema, Pixar) Distributors (Tristar Pictures) Independents (Artisan) Exhibitors (AMC, Regal Cinemas) Festivals (Sundance, Cannes, Tribeca) Academy of Motion Pictures Arts and
Sciences
Directors Producers Screen writers Actors (Managers, Agents, etc.) Casting Directors Music/Art Directors/Supervisors
Players
The Focus – Person or Event What if famous, a public official or a public figure?
Family Friends/Enemies Community/Other Stakeholders The Media
Press/Social Media Broadcast/Cable Networks PBS, Online Streaming
Special Doc Players
Copyrights
What is copyright?
Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.
Copyrights
Bundle of Rights
Right to Reproduce the Work Right to Derivative Works Right to Distribution Public Display Right Public Performance Right
Copyrights: Other
Creative Commons License
Public Domain
The Documentary Original Source Film was based on Screenplay/Script Music: Score vs Songs Derivatives of the Doc (sequels,
promotional items, etc.)
Copyrights in a Movie
Trademarks
Words or symbols used to identify a source in commerce.
In today’s world related to branding.
Infringement occurs if and when customers are confused between the two marks because they are too similar.
Dilution or diminution of value of trademark.
Life Story Rights
With factual stories the problem is to obtain the rights so as not to be sued for defamation, invasion of privacy and/or the violation of publicity rights.
Sometimes First Amendment offers protection.
Option Purchase Agreement
Life Story Rights
Length of initial option period & extensions Price for the option periods & extensions Setup bonuses Purchase price for rights Rights granted (can be specific to a specific
period in a person’s life, or specific events) Control over the screenplay & degree of
fictionalization permitted Use of copyrighted works created by the subject
Life Story “Fair Use”
Public interest vs. copyright holders From publically available and “published
material” (unauthorized biographies) The protection afforded to filmmakers who
act like journalists–dealing with Chevron. Press Credentials/Press priveledges
The same set of laws for non-fiction print and documentary.
Copyright “Fair Use”
Four Factors: purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational purposes;
nature of the copyrighted work; amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and
effect of the use upon the potential market for or value of the copyrighted work.
Documentary “Fair Use”
http://www.cmsimpact.org/fair-use/best-practices/documentary/documentary-filmmakers-statement-best-practices-fair-
use
Documentary “Fair Use”
http://www.cmsimpact.org/fair-use/best-practices/documentary/documentary-filmmakers-statement-best-practices-fair-
use
Defamation
Defamation – accuracy in story telling That you were not negligent in the making of the
film or in its depiction of any persons or companies
Take careful notes regarding your sources – date, time, location of interviews, etc.
If you record the interviews ask permission before each interview at the start of the recording
Must investigate and corroborate any allegations made by one party to another.
Confirm time, date and location of all major events
Rights of Privacy
Is the information newsworthy or of public interest?
Waivers/signed releases from all parties depicted on film
Invasion of Privacy Do not publicize a private fact if that
information is not of legitimate public concern and if the publication of that fact would be deemed highly offensive to the ordinary person.
The Borat case
Rights of Publicity
The right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion. Voice-likeness State Statutory or Common Law Sometimes under Right of Privacy or Unfair
Competition
Prior to any filming a script should be given to an attorney or script clearance company to review and identify any products and/or service marks that need to be cleared (gotten permission to use) for the film. Script clearance reports with issues to resolve and recommendations are important since you will need Errors & Omissions (E&O) insurance for your project distributor.
Product Clearances
However you cannot get E&O without a clean clearance report as it can lead to possible legal exposure for copyright and trademark violations.
Product Clearances
Product clearances are one of many clearances required for your film project. Others include: talent clearance, music clearance, intellectual property (IP) clearances for things like art and literary excerpts, title clearance (ex. The Butler).
Clearance Points to Keep in Mind
Certain product use can fall under “fair use” and not require a clearance. Such as if the product is one of many on a grocery store shelf that a character passes by but is not highlighted in any way
Clearance Points to Keep in Mind
You may need to obscure logos and trademarks – this is a strategy used in a lot of documentaries to keep clearance costs down.
Clearance Points to Keep in Mind
The ultimate responsibility for clearances is of the film producer – you will be indemnifying (holding harmless so you take all the blame) all the other partners so make sure you have this issue right.
Clearance Points to Keep in Mind
Agreements
Screenwriter Director Talent/Participants
Consent Forms Personal Release Forms Waivers
Crew
Agreements: Special Concerns
Minors: A minor can disaffirm a contract – generally.
Parental Management SAG-AFRA Union Members
Insurance
General blanket vs individual projectErrors and Omissions (E&O)
Extra insurance Filming in danger zones (such as Middle East) Cast insurance to cover death or incapacity
of principal actors Essential elements insurance (for licensing,
presale)
Other Doc. Concerns
Filming Permits Religious Overtones Political Advocacy
International Censorship – The Square Ethics – how far do you go for the story?
For the film?
Insurance
General insurance for theft, damage, injury to cast members
Workers compensation insurance Weather insurance Foreign Insurance Aircraft and water insurance Errors and Omissions insurance for producers
Ancillary Markets
• Home videos/DVD• Amazon
• Digital Streaming: Netflix, Hulu• Soundtracks• Books• Merchandise• Collectibles
Resources
Documentaries and Films Based on True-Life Storieshttp://www.gcglaw.com/resources/entertainment/documentaries.html
Five Legal Issues Every Documentary Filmmaker Should Keep in Mindhttp://www.lawlawlandblog.com/2010/08/five_legal_issues_every_docume.html
Resources
Docudrama: Navigating the Legal Issues of Documentary Filmmakinghttp://getinmedia.com/articles/docudrama-navigating-legal-issues-documentary-filmmaking
Tips from the Trenches: Documentary Filmmakershttp://youtu.be/dT7Sv-25lMI
Deborah Gonzalez, Esq.The Law Office of Deborah Gonzalez, Esq., LLCIP: Art, Music, Entertainment, DigitalAtlanta – New Yorkwww.dgonzalezesq.com [email protected]: @dg_iplaw
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