Producing in Place: 5 Ways to Produce from Home and Related Legal Considerations

POSTED ON May 29, 2020 / IN FWRV Legal

BY:

Eve Nguyen

In a world on pause and full of uncertainty, one thing is for sure: consumer demand for new entertainment content has never been higher. Production lots may be empty, but right now is a golden opportunity for filmmakers and other content creators to supply the masses from the comfort of their own homes.

Here are 5 ways that you can produce content while sheltering in place and some legal considerations to keep in mind:

1.  Use content uploaded by other people online.

Social media usage is spiking, meaning there’s currently an incredible amount of user-generated content being posted online. If you find content online that you want to include in your production, first ask yourself the following questions:

–Who owns the copyright to the content?  In order to use the content, you’ll need permission from at least the copyright owner or someone else with the right to license it to you (unless that content is in the public domain, which is relatively rare, or fair use applies, which also is relatively rare, especially for still photos and music). Be careful: just because someone uploaded a video, for example, onto their social media account doesn’t mean they own it. Generally, under U.S. Copyright Law, copyright is owned by the creator of the work. So if you want to use that video in your production, a good first step is figuring out who created it.

–Who’s featured in the content?  The copyright owner can’t always grant you permission to show all the people featured in the content, so you may need to track them down as well and get the right to use their likenesses before you can use the content in your production.

What’s in the background?  Because you can’t pre-clear the “set” for content you found online in the same way you could for the set of a studio production, you need to pay attention to copyright and trademark clearance issues. Can you show a prominent Nike swoosh on one of the subject’s sweatshirts or the artwork on the wall? Do you have the right to play that song in the background? Sometimes fair use applies, but depending on how copyrighted and trademarked works are incorporated into the content and your production, you may need to secure additional permission to include them.

2 Use stock content from a digital stock content provider.

Right now, it’s hard to hop on a plane to French Polynesia and get that perfect shot of the sun setting on the Pacific. Luckily, there’s a good chance someone else has captured similar footage that is available for your use. Digital stock content providers (like Shutterstock, Getty Images and Pond5) and open source providers (like Creative Commons) can be a great and affordable place to go to spice up your production. Here are a few considerations for using stock content:

–What rights in the stock content do you need for your production?  It’s important that the license for the stock content gives you rights that are appropriate for what you want to do with your production. If the goal is for your production to someday be distributed by a major network and seen across the globe, you would need to obtain rights that major networks often require (e.g., the right to use the stock content in perpetuity, throughout the universe and in any and all media, now known or hereafter devised, in and in connection with your production) and perhaps the right to use the content in advertising and marketing too. If, instead, you simply want to post your video on YouTube, a more limited license might be enough.

What representations and warranties are the stock content providers giving, if any?  As discussed in Point 1 above, in order to use content in your production, you need to have the appropriate permissions. Can the content provider represent and warrant (i.e., promise) in the license that they have all the rights necessary to grant you the license? If not, then it becomes questionable whether you have acquired the necessary rights from the appropriate source to include the content in your production.

3.  Use existing music.

Licensing existing music is more complicated and more expensive than you might anticipate. When deciding whether to include that chart-topping single into your production, consider which of the many types of music licenses you’ll need to acquire. Below are a few types of licenses that you may need:

–Master use licenses give you the right to use the sound recording (i.e., a particular performance of the song embodied in an existing recording) in an audiovisual format.

Synchronization licenses, or “sync” licenses, give you audiovisual rights in the underlying musical composition (i.e., the music and lyrics) of the song. This allows you to sync the song up with visuals.

Public performance licenses give you the right to perform the underlying musical composition in a live stream or to transmit a recording of the composition.

Often, you’ll need more than one license to include a song in your production and you may need to obtain those licenses from one or more sources. Because songs contain two distinct types of copyrights [(1) the copyright in the sound recording, and (2) the copyright in the underlying musical composition of the song)], multiple people may own the copyright in the recording you’re interested in using. As a first step, you’ll have to figure out whose permission you need, which may be the song’s music publisher or its representative, or the composer, the vocalist and/or the record company. As a second step, you’ll actually have to get their permission. Certain platforms, like YouTube, may handle some of the licensing for you depending on the particular song you’ve chosen, so music licensing may be a little easier if you only upload to those platforms. All this means that securing the appropriate licenses for a song can be a burdensome process and, depending on the song, a costly one at that.

4.  Use commissioned content, like animated works and music.

At the end of the day, the perfect content for your production may not already exist, or if it does, you may not be able to get the necessary rights at a reasonable cost. One alternative is to commission someone, like an animator or a music composer, to create content specifically for your production. Generally, commissioning works allows you to be in control of what the content looks and sounds like and possibly to own all rights (including copyright) in that content as a work-made-for-hire. You can also avoid any clearance issues by requiring that the commissioned work be wholly original and not feature any third-party materials. When hiring an artist to produce content for you, be specific about whether you’re permitting the artist to subcontract parts of the production (e.g., if the artist is an animator, can he or she subcontract a designer to create certain graphics?). If yes, you should specify in your contract whether the artist’s fee is inclusive of the costs associated with subcontracting and that the artist is having subcontractors sign appropriate contracts that give you ownership over their work.

5. Stream live productions.

Streamed live productions are currently prolific, from charity concerts to educational webinars. It may seem like the easiest way to produce in place – just start that Zoom session and let the content flow, right? If you’re just putting on a live show that doesn’t feature any third-party materials, then that might work. But, for example, if someone is going to sing an existing song, you’ll need to obtain the appropriate rights. Consider the following when streaming a live event:

–Are there any copyright and clearance issues? Is there any music and what types of licenses do you need?

–When obtaining appearance releases in connection with your live stream, do you need the right to rebroadcast or to use clips for advertising and promotional purposes? Given the unpredictable nature of live streams where the person on camera is in full control of what happens, do you need to protect yourself from the possibility that they go completely off-script or off-message?

Generally, you’ll also want to update your agreements to protect yourself when producing in place during a pandemic. This may include expanding the waiver of liability provision and the right to suspend, extend and/or terminate your agreements if your production is impeded or delayed.

The current state of the world presents a unique opportunity for filmmakers to reach a broader audience than ever before, meaning it’s as important as ever to continue producing content and to secure the appropriate legal rights for you to share your work.

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  • Marc
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    …so for past 10 weeks I have consistently watched live streamed performances where very famous and very unknown performers were playing OTHER folks tunes…you really think Paul Simon and Edie Brickell and Woody Harrelson got The Everly Brothers permission beforehand to sing Bye Bye Love? What use are laws, licenses and regulatory mandates if they are unenforced?