Lawyers tend to be conservative creatures. We don’t like loose ends or vagueness, so we will always tell you to get permission, even if using the quote wouldn’t necessarily open you to liability. After all, why run the risk of guessing and then getting sued when you can simply ask and get a straightforward answer? It’s always easier to ask permission than to beg forgiveness later.Read More
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.
Every year the American Bar Association Journal picks its top 100 legal blogs for its Blawg 100 directory. This year, The [Legal] Artist made the cut. It's gratifying to know that there are people outside of my circle of family and friends who read and enjoy this blog. I don't know what the future holds for The [Legal] Artist, but I know the last three years have been an extraordinary experience that I wouldn't trade for anything.Read More
As many of you know, I’ve been contributing to MovieMaker Magazine’s Cinema Law column, an ongoing blog that discusses how the world of filmmaker intersects with the law. You can imagine why that would appeal to me. Anyway, my sixth article was published last week, so by way of self-aggrandizement, I thought I’d post links to all six of my articles to date in reverse chronological order. Please click through and if you have any questions you’d like me to address in an upcoming Cinema Law article, please email me or submit a comment on one of the articles listed below.Read More
My latest Cinema Law column for Moviemaker Magazine is out and deals with whether or not to get waivers from background people and passers-by when they walk through your shot. I won't give it all away here (you have to go to the article to hear what I have to say), but I will say this: you probably don't need to be as diligent as I used to be back in my days as a young producer. Head over to Moviemaker Magazine to check it out in full!Read More