BY:STEVEN C. BEER, JAKE LEVY AND NEIL J. ROSINI
This Q&A was originally published in the Spring 2019 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
Just as production in the U.S. is subject to federal law as well as laws of the state and local jurisdiction where it occurs, production abroad, as well as traveling there with crew and equipment, is governed by the applicable laws of that jurisdiction.
Depending on factors such as the amount of production occurring abroad, the value of the footage to be captured outside the U.S. to the production as a whole, and whether or not the documentary is expected to be exhibited in the foreign jurisdiction, financiers, distributors and exhibitors may insist that documentary producers work with a qualified foreign lawyer to provide “local counsel” and advise on legal issues specific to the country in question. This request may come even if footage has already been recorded abroad without incident, as use of the footage may carry risk. (In any event, the production company will be asked to make representations and warranties and indemnify financiers, distributors and exhibitors with respect to foreign production, just as they are asked to do for production occurring in the U.S.)
Some financiers further require production companies to complete training in anti-corruption/bribery laws prior to traveling in order to ensure that their actions don’t violate U.S. law.
Many documentary filmmakers believe that using an online service to translate the form appearance release, location agreement, and materials license used at home into a foreign language will be sufficient to obtain rights from participants. Local counsel will advise on whether alterations should be made to render the agreement enforceable in the particular jurisdiction, or if it is advisable to use another form altogether.
In addition, local counsel may identify production risks that exist in foreign countries but not in the U.S. The very act of filming in certain areas (e.g., public streets, government sites) or capturing the images of certain people (e.g., police officers), without permission may not be permitted and could subject the filmmaker to liability.
Filmmakers should also check whether their insurance policies cover their intended activities abroad. They may find that policies must be supplemented or additional coverage purchased, or that in certain instances (e.g., travel to conflict zones) coverage is not available.