BY:Michael I. Rudell and Neil J. Rosini
As originally published in the Entertainment Law column in the New York Law Journal on Friday, September 23, 2016.
Documentary films vary in look and purpose. Some advocate a point of view and are a form of social activism. Others are more “evenhanded” and present multiple views of an issue in journalistic fashion. There are historical, biographical and scientific documentaries and documentaries that entertain more than they inform (e.g. “The Definitive Elvis”)[i].
No matter the category, documentary makers and their attorneys can avoid pitfalls by being aware of basic legal and business concepts. Some described below apply primarily to documentaries; others are common to films of all types.
Appearance releases include permissions to use the name, likeness and biography of those who sign them. Materials releases authorize the use of photographs, documents and other materials that are owned or controlled by third parties. Location releases assure that semi-public and private places will be made available for a shoot, that the signatory has legal control over the premises, and that no one will object later to its appearance in the film. From a legal perspective, releases are not always necessary for journalistic endeavors because of First Amendment privileges, fair use, and other defenses. But they’re almost always recommended to satisfy exhibitors, distributors and insurers, and they avoid subsequent disagreements about the scope and types of uses both of the film and derivatives of the film.
The fair use exception to monopoly control of copyrighted works by their owners can be of great value to documentary makers: it circumvents not only the need to obtain permission for using third party clips or material otherwise protected by copyright but also the need to pay for them. Moreover, a profit motive is not disqualifying. But the application of fair use is circumscribed, almost in proportion to its usefulness. Qualitative and quantitative limits on the amounts borrowed, the manner of use, the type of work being borrowed from and the type of work in which the borrowed material appears, and the economic effect on the copyright owner, all must be taken into account. Works of entertainment are more difficult to borrow from than fact-based works. Ultimately, the value of a film to an audience must come less from borrowed material and more from what the documentary maker adds to it.
Defamation is injury to reputation of a living person or company from a false statement of fact. The range of potentially defamatory statements is large, including for example dishonesty, lack of financial soundness, lack of skill in a profession, affliction by a serious communicable disease, and racial bigotry. Owing to Supreme Court interpretations of the First Amendment, defamatory statements about newsworthy subjects only are actionable in the U.S. when false and made either with knowledge of falsity, reckless disregard for truth or falsity, or insufficient corroboration; the legal standard varies depending on whether the plaintiff is a public person or a private one . Documentary makers, however, are well advised to focus on collecting sufficient corroboration no matter who their subject is. What constitutes enough depends on common sense factors, such as the degree of damage a statement would inflict if false, the amount of time available for fact-checking, and the number and quality of sources consulted versus how many are available. Documentary makers should identify all potentially defamatory statements, eliminate those that are not needed and corroborate the remainder with good backup sources.
Documentary makers need several different types of insurance during the course of production and after. Production insurance covers general liability from personal injury and property damage during the making of the film. Workers compensation insurance, which covers on the job injuries, also applies as it does for employers generally. Errors and omissions insurance is required by virtually all exhibitors and distributors – who demand to be named as additional insureds — as a condition to acceptance; it provides for both defense and indemnity in the event of inadvertent falsity, violation of rights of privacy and publicity, and infringement of copyright and other intellectual property. (Usually, insurers only want to insure against “errors and omissions” that an attorney experienced in defamation, privacy/publicity law, and copyright could not spot). For this reason “E &O” insurance usually is conditioned on an attorney’s review of the near-completed film and often an attorney’s opinion letter certifying compliance with legal standards must be submitted as part of the application process.
Documentary makers who base their films on pre-existing works, like articles or non-fiction books, often should acquire rights in those works to avoid claims based on copying. Although bare facts have no copyright protection, the precise wording used to express facts as well as original compilation and arrangement of facts, often are protected. These rights agreements give comfort to exhibitors and insurers, too.
Rights issues also come into play if the documentary itself is adapted into a play or a scripted film “based on true events.” To put themselves in control of those adaptation rights, documentary makers sometimes seek life story rights from their subjects at the outset as well as authorization to use any pre-existing work on which the documentary is based. Documentary makers also may need to freeze a subject’s right to authorize other documentaries or dramatized films based on the same events; potential funders, distributors and exhibitors wish to avoid the production of competitive films.
Contracts with Personnel
Films are collaborative endeavors that involve creative and business decisions. Unless there is a film with a sole funder and/or a single entity with all creative controls, agreements as to ownership, obligations and creative and business decision-making must be prepared. These are in addition to the assorted agreements required for onscreen talent, directors, crew members and others who perform services in connection with the film. The safest path is to ask those who will not share in ownership to sign work for hire agreements, which avoid questions later.
Negotiating agreements for transmission of films on emerging platforms requires not only familiarity with traditional entertainment legal principles, but also knowledge of new distribution technologies. Documentaries commissioned by broadcasters, cable networks or online services such as Netflix, provide ready-made platforms for viewing. Depending on how much the financier contributes to the film’s funding, it may also be owner of copyright or co-owner and participant in all future earnings derived from the film. Alternatively, a distributor may be involved with a documentary’s production from the producer’s presentation onward, which ensures that there will be a committed representative ready to make agreements with television networks, online streaming services, theatrical exhibition chains, or combinations of them, to show the finished film.
Most documentaries, however, are made entirely on speculation without a distributor involved, which may provide untrammeled creative license but until recent years, also results in a good deal of uncertainty about whether the film will ever be seen. Connecting with audiences has been made easier, however, by new platforms and self-distribution options. Filmmakers no longer depend solely on traditional theater distributors like Fox Searchlight or Sony Pictures Classic. Instead, they can turn to online services like Amazon and Netflix for both financing and online streaming and sometimes limited theatrical release as well. For self-financed projects, advertising-supported exposure — as on YouTube– supplemented by social media marketing allow filmmakers to build an audience by motivating viewers to serve as digital marketing agents.
Without funding. the vision of the filmmaker cannot be fulfilled. Financing traditionally comes from sources like private investors, foundations, distributors and exhibitors (e.g., cable networks). Recently, new sources of funding have emerged in the form of crowd-funding through Kickstarter, GoFundMe and Indiegogo.
Foundations remain an important source of funding for independent documentary films, even though some large foundations have decided to channel money through intermediary non-profit organizations instead of providing funds directly to filmmakers. This makes financing a budget more difficult. Filling the void, however, are funders with a mission who are ready to finance films that support a cause.[ii] The quid pro quo is that the filmmaker must stick to a message that may not correspond with where the facts take her. Also, certain platforms, like public television, are unlikely to accept films that are financed by entities that have a direct or indirect interest in the point of view being espoused or those in which the message appears unbalanced.
Funding also may be available from a person or corporation that wishes to become the centerpiece of the documentary. These productions might be regarded as a subset of advocacy films (and even may lean towards being characterized as a promotional film), as they rarely criticize their subjects, and are prone to being rejected by the same platforms that don’t accept films with a bias.
Funders have varying expectations about the amount of control they will exert over the finished product and getting a return on their investments. The attorney for the filmmaker should ensure that her client’s agreement with the funder covers these aspects. Funders who might be less interested in profit could be more interested in control, such as activist private foundations and biographical subjects. If the funder is primarily a commercial television network it often will insist on owning outright the films it finances and on having a final control over what goes into them.
It’s not unusual for a would-be filmmaker who is consumed by a passion to embark on a documentary project without having considered all of the factors that come into play as the project advances. The earlier those factors are considered by the filmmaker and her attorney, the better the opportunity to focus on her message and avoid stumbling blocks.
[i] See, Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622 (9th Cir. 2003)(clips of Elvis’s performances held not to be fair use).
[ii] John Anderson, “Documentary Filmmakers Find That an Agenda Helps With Financing,” July 8, 2016, http://www.nytimes.com/2016/07/10/movies/documentary-filmmakers-find-that-an-agenda-helps-with-financing.html?_r=0, published in print on July 10, 2016 under the headline “First Get an Agenda, Then Find the Funding.”