Legal Workshops for Filmmakers:Doc Law 101

Presented by:

Deborah Gonzalez, Esq.

2

This presentation is for educational purposes only and does not constitute legal advice. It is recommended that you seek legal counsel for specific matters.

DISCLAIMER

Overview

The development and production of documentary films and shorts have a host of different legal considerations we will discuss in this two-hour session. Topics include: life story rights, trademark and copyright considerations of third-parties, liability for defamation and publicity rights violations, and more.

Documentaries have become an increasingly important part of the

film industry as well as tools of public discourse.

~ John M Garon

Role of Documentaries

Crafting short-form documentaries is becoming part of the core competence for journalism majors, since the ability to write the story, film the content, edit

the narrative, and publish the work reflects the fundamentals of multimedia

journalism today.

~ John M Garon

Role of Documentaries

Documentary Statistics

http://www.the-numbers.com/market/genre/Documentary

Documentary Statistics

Documentaries & Oscars

Documentaries & Oscars

Documentaries & Other Awards

Documentaries & Other Awards

Documentaries & Other Awards

Documentaries & Other Awards

Documentary Feature Film Winner - Getting to the Nutcracker

Documentary Feature Special Jury Prize - WEB

Players

Film Studios (Paramount, Warner, Disney) Production Companies (Miramax, Castle

Rock, New Line Cinema, Pixar) Distributors (Tristar Pictures) Independents (Artisan) Exhibitors (AMC, Regal Cinemas) Festivals (Sundance, Cannes, Tribeca) Academy of Motion Pictures Arts and

Sciences

Directors Producers Screen writers Actors (Managers, Agents, etc.) Casting Directors Music/Art Directors/Supervisors

Players

The Focus – Person or Event What if famous, a public official or a public figure?

Family Friends/Enemies Community/Other Stakeholders The Media

Press/Social Media Broadcast/Cable Networks PBS, Online Streaming

Special Doc Players

Copyrights

What is copyright?

Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.

Copyrights

Bundle of Rights

Right to Reproduce the Work Right to Derivative Works Right to Distribution Public Display Right Public Performance Right

Copyrights: Other

Creative Commons License

Public Domain

The Documentary Original Source Film was based on Screenplay/Script Music: Score vs Songs Derivatives of the Doc (sequels,

promotional items, etc.)

Copyrights in a Movie

Trademarks

Words or symbols used to identify a source in commerce.

In today’s world related to branding.

Infringement occurs if and when customers are confused between the two marks because they are too similar.

Dilution or diminution of value of trademark.

Life Story Rights

With factual stories the problem is to obtain the rights so as not to be sued for defamation, invasion of privacy and/or the violation of publicity rights.

Sometimes First Amendment offers protection.

Option Purchase Agreement

Life Story Rights

Length of initial option period & extensions Price for the option periods & extensions Setup bonuses Purchase price for rights Rights granted (can be specific to a specific

period in a person’s life, or specific events) Control over the screenplay & degree of

fictionalization permitted Use of copyrighted works created by the subject

Life Story “Fair Use”

Public interest vs. copyright holders From publically available and “published

material” (unauthorized biographies) The protection afforded to filmmakers who

act like journalists–dealing with Chevron. Press Credentials/Press priveledges

The same set of laws for non-fiction print and documentary.

Copyright “Fair Use”

Four Factors: purpose and character of the use, including

whether such use is of a commercial nature or is for nonprofit educational purposes;

nature of the copyrighted work; amount and substantiality of the portion used

in relation to the copyrighted work as a whole; and

effect of the use upon the potential market for or value of the copyrighted work.

Documentary “Fair Use”

http://www.cmsimpact.org/fair-use/best-practices/documentary/documentary-filmmakers-statement-best-practices-fair-

use

Documentary “Fair Use”

http://www.cmsimpact.org/fair-use/best-practices/documentary/documentary-filmmakers-statement-best-practices-fair-

use

Defamation

Defamation – accuracy in story telling That you were not negligent in the making of the

film or in its depiction of any persons or companies

Take careful notes regarding your sources – date, time, location of interviews, etc.

If you record the interviews ask permission before each interview at the start of the recording

Must investigate and corroborate any allegations made by one party to another.

Confirm time, date and location of all major events

Rights of Privacy

Is the information newsworthy or of public interest?

Waivers/signed releases from all parties depicted on film

Invasion of Privacy Do not publicize a private fact if that

information is not of legitimate public concern and if the publication of that fact would be deemed highly offensive to the ordinary person.

The Borat case

Rights of Publicity

The right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion. Voice-likeness State Statutory or Common Law Sometimes under Right of Privacy or Unfair

Competition

Prior to any filming a script should be given to an attorney or script clearance company to review and identify any products and/or service marks that need to be cleared (gotten permission to use) for the film. Script clearance reports with issues to resolve and recommendations are important since you will need Errors & Omissions (E&O) insurance for your project distributor.

Product Clearances

However you cannot get E&O without a clean clearance report as it can lead to possible legal exposure for copyright and trademark violations.

Product Clearances

Product clearances are one of many clearances required for your film project. Others include: talent clearance, music clearance, intellectual property (IP) clearances for things like art and literary excerpts, title clearance (ex. The Butler).

Clearance Points to Keep in Mind

Certain product use can fall under “fair use” and not require a clearance. Such as if the product is one of many on a grocery store shelf that a character passes by but is not highlighted in any way

Clearance Points to Keep in Mind

You may need to obscure logos and trademarks – this is a strategy used in a lot of documentaries to keep clearance costs down.

Clearance Points to Keep in Mind

The ultimate responsibility for clearances is of the film producer – you will be indemnifying (holding harmless so you take all the blame) all the other partners so make sure you have this issue right.

Clearance Points to Keep in Mind

Agreements

Screenwriter Director Talent/Participants

Consent Forms Personal Release Forms Waivers

Crew

Agreements: Special Concerns

Minors: A minor can disaffirm a contract – generally.

Parental Management SAG-AFRA Union Members

Insurance

General blanket vs individual projectErrors and Omissions (E&O)

Extra insurance Filming in danger zones (such as Middle East) Cast insurance to cover death or incapacity

of principal actors Essential elements insurance (for licensing,

presale)

Other Doc. Concerns

Filming Permits Religious Overtones Political Advocacy

International Censorship – The Square Ethics – how far do you go for the story?

For the film?

Insurance

General insurance for theft, damage, injury to cast members

Workers compensation insurance Weather insurance Foreign Insurance Aircraft and water insurance Errors and Omissions insurance for producers

Ancillary Markets

• Home videos/DVD• Amazon

• Digital Streaming: Netflix, Hulu• Soundtracks• Books• Merchandise• Collectibles

Resources

Documentaries and Films Based on True-Life Storieshttp://www.gcglaw.com/resources/entertainment/documentaries.html

Five Legal Issues Every Documentary Filmmaker Should Keep in Mindhttp://www.lawlawlandblog.com/2010/08/five_legal_issues_every_docume.html

Resources

Docudrama: Navigating the Legal Issues of Documentary Filmmakinghttp://getinmedia.com/articles/docudrama-navigating-legal-issues-documentary-filmmaking

Tips from the Trenches: Documentary Filmmakershttp://youtu.be/dT7Sv-25lMI

Deborah Gonzalez, Esq.The Law Office of Deborah Gonzalez, Esq., LLCIP: Art, Music, Entertainment, DigitalAtlanta – New Yorkwww.dgonzalezesq.com dgartlaw@att.netTwitter: @dg_iplaw

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