Filmmaking Legal Matters: Rights, Fair Use, Errors and Omissions

I woke up with a bit of a headache. Is it stress? Possibly. My mind has been trying to wrap around the legal side of filmmaking, focusing on non-fiction and fair use. It is not really my area of expertise, but, to some degree, it has to be. Whether we like it or not, a basic understanding of copyright law is essential to navigate these waters. You do not sell a movie or a documentary. You sell rights to a movie or a documentary. Bankers can offer security interest on your rights. It’s pretty much like a mortgage on your house. As a creative there are multiple rights that could apply to your work (and your bank account), even in ‘work for hire’ situations. As a producer, a wrong move could cost you dearly and you might end up having nothing left to sell, even though you have finished your movie and everybody agrees that it is awesome. Can you keep track of it all and protect your rights all by yourself? Probably not.

Whether you like it or not, you will need lawyers, industry lawyers, and they don’t come cheap. So whatever you can learn along the way will definitely shorten any discussion you need to have with them and save you some budget. People will be throwing these words at you, options, clearances, underlying rights, audiovisual rights, script insurance and registration, work for hire, fair use, public domain, libel, slander, E&O insurance, chain of title and more. You could visit a lawyer and ask him to explain it all to you, if you can afford to burn some cash, but you might want them to deal with protecting your rights rather than providing you with a basic education in that area.

This post does not aim at explaining these legal concepts and I will never engage in legal advice. Study the basic concepts and seek professional legal advice, always.

If you are new to all of this, I suggest  you start by watching the Film Courage interview of Michael Donaldson & Lisa Callif.

Donaldson and Callif are the authors of Clearance & Copyright, 4th Edition: Everything You Need to Know for Film and Television. To me, this book is a ridiculously good investment. I never read it from front to back linearly, but one can quickly browse its content when needed (and access a multitude of legal forms). Of course, I can not copy the entire book and share it with you as it is a copyrighted work. I can, however, select a couple of points and passages to illustrate the importance of legal advice in this industry (and how useful the book can be to you) without breaking the law. If my understanding of ‘fair use’ is correct, I have the right to present to you some of their words without having to spend a cent. If this post were a documentary, should I just tell the potential distributors: trust me, it’s fine, we are not infringing any rights? That would not satisfy them, no. Unlike this blog, they will ask for insurance.

An E&O Insurance policy is what they would expect me to produce. The Error and Omission Insurance (also known as Media Liability Insurance) aims to protect the filmmakers in the event they ‘accidentally infringe a copyright, slander a trademark, invade someone privacy, violate someone’s right of publicity’, and many other mistake that could end up causing you legal ‘pains’. The insurer will cover legal liability and defence for the production company against alleged unauthorised use of assets covered under copyright law (and more). In other words, if you get sued, they will foot the bill (within the financial limits specified in your policy).

In most cases, your financiers will not release any funds to the production until you can produce an E&O Insurance prior to beginning of principal photography, and nobody will want to insure you without the proper clearances. What if you are an ‘extremely independent’ production company and have already shot and post-produced your film? The longer you post-pone obtaining this insurance, the more complicated it could become to obtain, especially if you have not properly tracked and consolidated your rights throughout the process.

What if my documentary relies on ‘fair use’ provisions of copyright law, do I still need an insurance? Yes. Can I get an insurance? Maybe, if your use is truly fair. So, what is fair use and how do we assess whether our use of an asset falls under this provision.

In Clearance & Copyright, 4th Edition: Everything You Need to Know for Film and Television Fair Use (in the US) is described as “the lubricant between copyright law and your First Amendment right to express yourself for good or bad – about this book, a film, or anything else. It allows you to tell your story more robustly and clearly by showing examples of what you are talking about”.  The statute reads as follows:

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

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

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Based on these words I might imagine that the educational nature of my work, the limited amount of the copyrighted work I intend to use in relation to its whole and the lack of impact on the potential market  are my evidence of “fair use”. Well yes, no, maybe.There are grey areas. Over time court decisions have shaped the real meaning of the definition provided in the statute. What the good people at the Donaldson+Callif law firm have identified is what they call a Safe Harbor for Fair Use, and a pretty straightforward way to assess whether your intended use of a copyrighted work falls in that area. As presented in their book:

– Does the asset illustrate or support a point of that the creator is trying to make in the new work?

– Does the creator of the new work uses only as much of the asset as is reasonably appropriate to illustrate or support the point being made? 

– Is the connection between the point being made and the asset being used to illustrate or support the point clear to the average viewer?  

If you can answer yes to all three questions, you are in safe waters (in the US). Again, some areas might be open to interpretation, and the book provides multiple case studies to wrap your head around the idea, and all the rest.

Our understanding of copyright law is potentially plagued by common misconceptions. How does all of this come into play with parodies, satire and jokes? And what if the work is in public domain? Who could come and claim rights to your movie? How could someone sue you for defamation? How can you protect art? What about location agreements? talent releases? and the musical rights? the compositions and the recordings? and what about internet distribution? and in other countries? different rules for different markets? and so on, and so on. Starting to feel the stress? The best thing you can do if something stresses you is to delegate. Give that stress to someone else. Learn the basics, get a lawyer.

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