BY:Jake M. Levy
The First Amendment allows journalists, including documentary producers, to report newsworthy events without the express permission of those who are depicted, and judges have defined “newsworthy” broadly. Why then should documentary producers ask for a signed appearance release from persons seen in the production? There are four primary reasons:
1. Errors and Omissions Insurance Coverage. Among other things, “E&O insurance” covers producers in the event of a claim that they did not properly obtain the necessary permissions from persons appearing in the production. E&O insurance is required by most exhibitors and distributors and E&O carriers may require releases in some instances as a condition of coverage.
2. Exhibitor Requirements. Studios, television networks and other exhibitors and distributors often ask for releases from key participants. The extent of these requirements is not always known by producers in advance of formalizing distribution, so it’s wise to obtain a release during production when the producer remains in close contact with participants.
3. Reduce Defense Costs. Even though a signed appearance release can’t guarantee that no one will bring legal action for the use of his image, it lends strong support to a producer’s motion to dismiss and may thereby reduce lawsuit defense costs substantially.
4. 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 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).
For more information, contact Jake Levy or visit him at the New York Lounge at the 2015 Sundance Film Festival. Visit www.fwrv.com in January 2015 for additional details.