This Q&A was originally published in the Winter 2019 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
In their excitement to commence work on a documentary, filmmakers may start developing and shooting before taking time to make fundamental written agreements in addition to investor terms and work for hire agreements. Their absence can have profound consequences on whether a documentary is “distributable” as well as on creative and production decisions made throughout the course of a project.
In situations where two or more producers are working together, they should discuss and memorialize the terms of their relationship as early as possible — ideally during the first days of development. These terms include the division of responsibilities, how decisions will be made, compensation and costs shared, credit accorded, and who, or what entity, will own the documentary. Failing to do so can cause tension when issues arise that have not been discussed or contemplated. In extreme cases, lack of agreement will prevent producers from providing a clean “chain of title” to distributors, which may prevent distribution.
In early development, producers also should consider, and consult with a knowledgeable attorney about, whether rights held by a third party, such as life story rights or rights to a book or other creative work, are necessary or desirable. Often a documentary may be produced without obtaining these rights, but their absence may dictate creative, production and distribution decisions. For example, a documentary that relies heavily on the fair use doctrine, will, due to the nature of fair use (and in particular, the requirement that producers use no more than necessary of a borrowed work to make a specific point) have a different look and feel than a production that contains licensed material. With licensed material, producers can focus instead on the most aesthetically pleasing and editorially impactful effects without regard for fair use’s requirements.
In certain instances, it may not be strictly necessary to acquire rights, such as life story rights or other permission, from a documentary subject. However, doing so may confer valuable benefits, such as a degree of exclusivity, cooperation, and access to archives, that give an advantage over competing projects.
Fundraising is subject to federal and state rules and regulations and should not be started without advice of legal counsel. Before producers solicit or accept funds, it’s necessary to understand obligations to potential investors and donors as well as certain actions that may be taken and not taken in raising money.
By building a solid foundation in the early stages of a production, savvy producers maximize the chances of their documentary’s success.