Cinema Law: What are the Rights of a Documentary Subject?

This article originally appeared on Moviemaker.com on November 28, 2015. Republished here with permission.

Q: What rights does the subject of a documentary film have if the film falls apart?

As with all things in the law, the answer is: It depends. A documentary subject’s rights are dictated by two interrelated factors: the rights granted by contract with the filmmakers, and the rights granted by law.

Rights Granted by Contract

I feel like I say this so often I should trademark it: You need to put your agreement into writing prior to filming. Written contracts are crucial to any business relationship and are designed to ensure that participants know what they’re supposed to do and are held accountable if they don’t do it. When prospective clients approach me with legal problems, it’s a good bet they’re dealing with an issue that could’ve been avoided if they had put everything on paper first.

A good contract will explain what a documentary subject’s rights and duties, including what he or she can do if the film inexplicably halts production or falls apart in some other fashion. Will he or she have producing and creative input, or simply act as a conduit for storytelling? If it’s the former, will the subject have an ownership stake in the film? Can he or she take control of the production by buying up all the footage and/or hiring a new producing team to finish the film? If it’s the latter, can the subject withdraw the use of his or her likeness and story? What kind of oversight will the subject have to control how he or she is portrayed on camera?

Without a written contract, a lot of these questions are left up for grabs, and a subject’s ability to influence the outcome and direction of the film is limited.

Rights Granted by Law

Even without a written contract, a documentary subject still has options. The law provides a certain amount of built-in defenses to people who don’t want their identities misused in commercial settings. In particular, the law requires filmmakers to get their subjects’ permission to screen the finished product for an audience. Failure to do this means they could be in violation of their subjects’ publicity rights, and that could open them up to defamation and invasion of privacy claims.

Broadly speaking, publicity rights are a subject’s ability to control the commercial use of his or her name, image, likeness, story, or any other specific aspect of identity. The rights and remedies vary state by state, but they’re considered part of an overarching “right of privacy” that’s recognized in all 50 states. Seventeen states (most notably New York and California) have statutes preventing the unauthorized use of a person’s identity. The remaining states protect it through common law.

Smart filmmakers won’t leave this kind of thing to chance. They’ll acquire someone’s life rights in writing, not only to ensure the subject’s cooperation with the production, but also to appease insurance companies, financiers and studios. Insurance companies won’t provide the necessary Errors & Omission (E&O) coverage if there’s a strong likelihood the production was left open to liability by failing to secure these rights. Financiers won’t want to bankroll a film where the main subject’s story isn’t secured, and studios won’t buy a film if there’s a chance the film’s main subject could sue them for defamation and invasion of privacy.

If you’re the subject of a documentary film, this is your leverage over the filmmakers to ensure they don’t go forward with the film without your consent and participation. If the film is simply stalled, leveraging your publicity rights probably won’t get it back up and moving again, but you can at least make sure your story is safe and secure, ready to be granted to a filmmaker who is willing to put it all in writing. As it should be.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA