A Practical Discussion of Appearance Releases Part 2: Why Might Documentary Producers Obtain Appearance Releases Even Though They Don’t Have To?
POSTED ON December 4, 2018 / IN
STEVEN C. BEER, JAKE LEVY AND NEIL J. ROSINI
This Q&A was originally published in the Summer 2018 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
The First Amendment generally supports use of interviews without need for an appearance release as a category of news worthiness. This follows from the fact that the U.S. Constitution trumps state-originated rights of privacy and publicity. But there are still good reasons to obtain appearance releases from interview subjects, such as these:
- Errors and Omissions (E&O) Insurance Coverage. Among other things, E&O insurance covers producers in the event of a claim that they did not properly obtain necessary permissions from persons appearing in the production. E&O carriers may require releases as a condition of coverage as a risk-reduction measure.
- Exhibitor Requirements. Studios, television networks and other exhibitors and distributors often ask for releases from persons interviewed and other participants. The extent of these requirements is not always known by producers in advance of formalizing distribution, so it’s wise to obtain releases during production when participants are in close contact. Asking for a release after an interview carries particular risks, and this requirement can often be narrowed through discussions with the exhibitor. (See below.)
- Reduce Defense Costs. Even though a signed appearance release doesn’t guarantee that no one will bring legal action for the use of his image, most appearance releases contain a provision releasing the producer from claims brought by the participant. (It is from this provision that the appearance release takes its name.) An appearance release lends strong support to a producer’s motion to dismiss a claim, and may reduce lawsuit defense costs substantially.
- Avoid Misunderstandings. A participant may contend that she appeared on camera in reliance on representations that later turned out to be false, such as that the documentary would be distributed only in a certain territory or in a limited way. A typical release includes the participant’s agreement to the use of her appearance in any and all media throughout the world in perpetuity, without restriction. This reduces the likelihood of an objection based on a misunderstanding (real or imagined).
- When a Performance Is Involved. By showing a recorded performance, such as a band’s rendition of a song, a dancer’s routine or a circus act, a producer is potentially affecting the market for that performer’s services by reducing demand on the part of paying customers. The US Supreme Court has held that the First Amendment does not necessarily extend to the broadcast of a performance absent the performer’s permission.