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.

You Should Offer Licensing Options To Potential Infringers

“How do I protect my work online?”

I get asked that a lot. So much in fact that I’ve given half a dozen presentations on it over the past eighteen months. I could probably build my whole law practice around that one question and make a decent living at it. When you consider the ubiquity of the internet and the ease in which work can be taken and repurposed without your knowledge, you can see why it's such a pressing issue. Last year I partially addressed it in a blog post about licensing work to people who'd already infringed it. The gist of my argument was that instead of getting mad, maybe there was a way to get paid instead. After all, if the infringement has already taken place, why not try to make a few bucks off it?

But you don't have to wait until you've been infringed to make a deal. You should try and do it before the infringement even takes place. How? By offering licensing options to your work right up front!  As you'll see below, doing this is so simple you're going to kick yourself for not thinking of it sooner.

1. Be easy to contact. Wherever your work shows up - your website, Linkedin, Behance, Pinterest, Facebook, etc. - place your contact information in a conspicuous place. A lot of work is taken without permission because a potential buyer couldn’t get in touch with the artist, so this feels like an easy fix. Offer more than one way to get in touch so the buyer knows you're actually reachable. Some artists are understandably hesitant to give out their phone numbers, but as long as a buyer can reach you by email and at least one other method, you're good to go.

2. Tell them you're ready to do business. Put some variation of the phrase "Licenses available upon request. Contact for more information." clearly and visibly on any website where your work appears. This clearly communicates to the buyer that you're ready to do business. It's also good as an evidentiary CYA move if you ever had to prosecute an infringement case down the road. It's much harder for an infringer to argue in good faith that he didn't know your works were available for purchase if you state it in big bold letters. If certain pieces are not for sale, make sure they are clearly labeled as such. For example, "This image is not available for license or sale."

3. Be ready to do business when the requests come in. Have sales or licensing options ready to go. If the piece is for sale, indicate in writing whether or not the copyright (and all attendant ownership rights) is conveyed along with the actual physical piece. The buyer has a right to know if he’s getting the copyright or not. If you go the licensing route, you can use pre-existing licensing agreements like those at Creative Commons or you can make your own. If you choose the latter, be sure to include these terms:

1. The amount of time the buyer can use your work;

2. The purpose of his use;

3. Whether or not he can make derivatives or copies;

4. Whether or not he can distribute your work or its derivatives;

5. The amount of the work he can use;

6. The geographical location he can use your work in;

7. Whether or not he must credit you as the author;

8. Any fees, payments, royalties stemming from the use.

This isn't an exhaustive list of licensing terms (and they will vary depending on your comfort level), but it's a good start and should cover most scenarios. If you're savvy enough at programming, you can even create functionality in your website that allows buyers to license your artwork automatically, without ever needing to contact you.

Obviously this strategy isn't going to apply to all of you, and it won't always works either. Sometimes people just want to steal to see if they can get away with it. That said, it's my experience that most infringers don't realize they're doing something wrong and are more than willing to parlay with you if they only knew how. So give them the option. It's easy to do and the results could be an uptick in your business.  Considering how little effort this strategy requires, isn't it worth a shot