by Erica Ginsberg, Docs In Progress® Executive Director and Adele Schmidt, Docs In Progress Director of Programs and Services

joy_butler-240x300.jpgAt some point or other, many documentary filmmakers face the issue of clearing rights for their films. Whether it is for archival footage, music, or the rights to a story, once a producer steps into the territory of rights clearances, a potential nightmare begins. How can filmmakers navigate the ins and outs of obtaining rights for materials from all kinds of different sources without losing patience or running broke? We recently posed that question to Joy Butler, a Washington, DC attorney who is well acquainted with rights clearance matters.

As part of her entertainment practice, Butler works with independent film, television and radio producers clearing rights. She is the author of The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks, and Other Rights for Entertainment and Media Productions and has her own blog about entertainment and intellectual property law issues called Guide Through The Legal Jungle.

Q: Some filmmakers go out and start shooting and editing their films without worrying about the rights. Toward the end they confront the difficult situation of having included material, such as music or news clips, which they can not afford to pay for or do not have the rights to use. What would you recommend to a filmmaker to avoid that situation? At what point in production should a filmmaker start contacting the rights holders?

There’s a very simple solution and most filmmakers already know what it is. Don’t wait until the last minute to start clearing rights. If you do, you guarantee yourself the maximum in frustration and cost. By the time production ends, you have made and implemented decisions about which material to use in your production. Undoing those decisions, if possible at all, is time-consuming and expensive.

Rights clearance should begin during pre-production and continue throughout the production process. While some rights holders are efficient in responding to permission requests, others take weeks to get back to you. Start seeking quotes as soon as you have some concrete ideas of the materials you might want to incorporate into the production.

Q: But sometimes a filmmaker doesn’t know what he’ll need when he is still in production. How can he budget the fees for rights clearances if he is not sure how much material will be used? 

The answer is be flexible and be realistic. Be flexible by thinking of several works that can potentially fill each of your needs. In that way, you have a backup in the event your first choice is unavailable or too expensive. Be realistic about what rights you can purchase with your budget. A $5,000 rights acquisition budget won’t cover the licensing fees for hit songs by famous recording artists or clips from hit movies.

Q: It may not always be easy to predict what kind of release a film may have. The range goes from festivals to educational to broadcast rights for various outlets to DVD sales to international rights to the web, or even theatrical distribution. The rights process for each can be confusing. Is it recommended to clear all rights from the start or clear them in tiers, upgrading as needed?

You need the rights that correspond to your intended distribution for the film. The most important categories of rights are media, market, term, and territory:

Media and Market. Common categories for the breakdown of media are theatrical, videocassettes, DVDs, television, and the internet. Some license agreements specify a particular market such as the educational market.

Term. The term is the duration for which you have rights in the material. Common terms are one year, five years, ten years, the duration of the copyright, and perpetuity.

Territory. The territory specifies the geographic region in which you may use the material. Common breakdowns for territories are local, regional, the United States, North America, Europe, international, worldwide, and the universe.

The broader the rights, the more expensive the license fee will be. If you are unable to purchase all the rights you may need at one time, try to negotiate the option to expand your use of the material and include that option in your licensing agreement along with the specific cost for upgrading rights. In that way, you do not have to go through a new negotiation when and if you need additional rights.

Q: When it comes to archival material, many filmmakers use a combination of resources with some coming from professional sources with fixed rates and standard contracts (such as news archives or footage houses) and others from non-professional sources (such as home movies or photos from the characters in the film). Does a filmmaker need to clear those rights too? What kind of agreement is needed for non-professional sourced material?

While it may be true that a non-professional source may not protect its material as aggressively as a professional source, there is no legal distinction in the copyright for material from professional sources versus the copyright for material from non-professional sources. You need to clear rights for materials from non-professional sources too. Your license agreement will address the same terms (license fee, duration, media, etc.) for both.

Q: Music licensing is another big issue for a lot of filmmakers. Are there major differences between clearing archival rights for images and music rights?

Music and images often pose different rights-clearance challenges. The rights holders of images can be especially difficult to track down. Music is often difficult to clear because its ownership changes more frequently than other forms of media and it tends to have multiple owners from whom you must obtain permission.

Q: What has been the most difficult situation for you to help a client clear rights?

Much of rights clearance work is researching who and where the rights holder is and then contacting the rights holder – and contacting him again – until you get a response to your permission request. This hands-on aspect of clearing rights does not require an attorney. While your attorney should preferably be involved as an advisor in the process, it’s typically not economically efficient to have her handle the entire process.

As an attorney, my role in rights clearance usually involves reviewing the production to assess potential problems and risks, determining whether and what type of permission is needed, and drafting appropriate licensing agreements. The most difficult situations for me are those in which the client has no information regarding the source of the material.

As an example, a client created an audio collage by randomly taping the audio portion of numerous television programs. The client had not tracked which television programs were on the clip. While the average listener could not identify the programs on the tape, Murphy’s Law suggests that a rights owner with material in that clip would have been able to pick out his work. In any case, without knowing what was on the tape, it was impossible to clear it unless the client’s use could be squeezed into a fair use or First Amendment use.

Q: Ah, fair use. That is one of the most misunderstood aspects of filmmaking. While our friends at The Center for Social Media have done a lot to educate filmmakers on the issue of fair use, we wanted to pose to you what we really consider some other major areas of confusion for filmmakers when it comes to rights. Here are the some of the questions and conceptions we’ve heard most frequently:

I do not need to get a signed release form if I get the person stating their name and date on camera and that they agree to be filmed.”

Technically True. A verbal consent can be valid. Personally, I prefer that all consents be written. If you later need to prove that consent was given, it is easier to do so if you can produce a signed release.

I do not need to worry about release forms if my film is not going to be on television since I don’t need errors and omissions insurance.”

False. Your film needs to be properly cleared regardless of the media in which you distribute it. You can still be sued even if your film is shown only on the internet or only in cinema art houses. Also, television networks are not the only distribution channel that may require errors and omissions insurance.

I’m filming in a public place and there are some people who are clearly visible in the film. But as long as they are not actually talking on camera, I don’t need to worry about release forms.”

It depends. Like many rights clearance questions, this is a question of how much risk you are willing to take. I prefer having consent from every recognizable person appearing on camera. While I prefer express consent, a person can also give implied consent through his conduct. For example, you can post a notice on the street indicating that anyone walking through the area may be captured on camera and appear in your film. If the person walks through the area after reading the notice, he provides implied consent for his appearance in your film.

“I have an interview with a public figure who refused to sign a release form and is now saying I can’t use the footage. I think I can still use it because public figures are not covered by the same kind of libel and slander protection as non-public figures.”

It depends. Your right to use the interview completely depends upon your unique circumstances including the subject matter of your film. Libel is a false statement that harms a person’s reputation. If you knowingly include false statements in your production – even if those statements concern a public official – you risk getting a claim for libel. However, in my mind, libel is not the primary area of law on which to focus in this situation.

If the public figure granted the interview with an accurate understanding of how the interview would be used, you likely have implied consent to use the interview. Is the interviewee a presidential candidate to be included in your documentary about the presidential race? If yes, your use is probably covered by the First Amendment. Or are you using a celebrity interview as part of a promotional trailer for your documentary. I would want a release for that use as the public figure might have a right of publicity claim.

“I can use copyrighted material such as music or a TV show without clearing rights as long as I do not use it for longer than 30 seconds.” 

False. There is no automatic fair use safe harbor for the use of fewer than thirty seconds of a film or fewer than eight bars of a song or fewer than 250 words of a book. Use of a small amount of a copyrighted work has been deemed by courts as infringement. However, it is true that the less of a copyrighted work you use, the more inclined a court will be to view your use as a fair use.

Any footage of a government figure, such as the President of the United States, is considered to be in the public domain, even if I get the footage from CNN or network news.”

False. Even though news footage typically focuses on public events, the footage is copyrightable and requires a license for use unless your use qualifies for fair use or another exception to copyright protection. Your use of the footage is not a fair use just because the footage includes images of a public figure.

“Any footage I find from a public source, such as the National Archives or the Library of Congress, is in the public domain.” 

Not necessarily. Federal government works and works in which the copyright has expired are in the public domain. The National Archives houses mostly government records so many of its materials are in the public domain. However, the National Archives also has some donated and other materials that may be copyrighted-protected.

As the largest library in the world, the Library of Congress has millions of videos as well as books, recordings, photographs, maps and manuscripts. Many of the materials in its collection are copyright-protected.

I do not need rights to show a newspaper headline.”

It depends. Showing the newspaper headline might be covered by the First Amendment under certain circumstances. It also matters whether you are showing an image of the complete newspaper along with the headline or just repeating the text of the headline. The latter is less risky than the former.

“I’m a poor documentary filmmaker and am unlikely to make a profit from my film. Therefore, I should be able to clear the rights at the price for a non-profit organization even if my film ends up on PBS.”

It depends. That completely depends on the licensing fee you’re able to negotiate with the rights holder. Rights holders have no obligation to lower the licensing fee for a non-profit organization.

“I have an important scene with one of my main characters singing karaoke. I do not need to clear rights to the song because this would come under Fair Use.”

Not necessarily. Documentarians often ponder whether they need to license such background music and images. Unfortunately, there is not a simple yes or no answer that is applicable to all situations. In supporting the documentarian’s right to use the material without a license, you would argue fair use. However, there is no bright line rule in determining what qualifies as fair use and court decisions are inconclusive on the question of whether background music in documentaries so qualifies.

Hence, documentarians must ask themselves “How much risk is there if I use this music without permission and am I willing to accept that risk?” Note that there is always risk when you use copyrighted material without permission. While the risk may be minimal, it is never zero. Many documentary filmmakers opt not to take the risk and they either get permission to use the material or remove unlicensed copyrighted sounds or images from their film.

Q: We’ve talked a lot about filmmakers dealing with procuring rights from other sources. But there’s also the issue of filmmakers needing to protect their own intellectual property rights. How can a filmmaker ensure her film doesn’t end up being used without her permission, such as being posted by others on YouTube or screened at a festival without having applied?

Register the copyright in your film with the United States Copyright Office. Registration is not necessary for a valid copyright but registration does maximize your ability to protect your film. If someone is infringing your film, low-cost responses that might be effective include sending a cease and desist letter to the film festival or sending a Digital Millennium Copyright Act take-down notice to YouTube.

Q: Rights clearance is obviously a big issue and, since this interview cannot possibly cover every situation faced by every reader, we would recommend for filmmakers to contact an entertainment lawyer to discuss their specific cases. But we all know many independent filmmakers are struggling for funding and legal fees may be lowest on the priority list. How can a filmmaker with limited funds make the most use of his or her time with an entertainment lawyer? In addition to rights issues, what are some other typical situations for a filmmaker to contact an entertainment lawyer?

In addition to rights clearance, other issues with which I help filmmakers include business entity formation, joint venture arrangements, guild compliance, private investor financing, and the negotiation of talent, distribution and other contracts. It’s better and less expensive to bring your attorney into the project early enough so that she can help you structure your project correctly rather than bringing your attorney in at a later date to fix things that have gone wrong. There’s truth to the adage “an ounce of prevention is worth a pound of cure”.

© January 2008, Docs In Progress®
This article may not be reprinted without permission.