In a previous article, we discussed some of the areas producers should look at to make sure they avoid legal liability, including the use/depiction of original characters and the potential risks involved. There are other areas to cover and including where material already in existence (and belonging to someone else) is being used, extras are being hired and views are being expressed.
There are many elements that come into the making of a movie or a documentary film and this sometimes includes the use of pre-existing material that may or not belong to the producer. Whether that pre-existing material consists of music, words or film footage, you must first check whether your use of the same requires permission from the material's owners. Most often, that material is work protected by copyright and a permission or licence is required for you to use it.
Any use of copyrighted material without prior permission from the owner of that material may result in a lawsuit and legal liability. Clearing the rights starts with determining who the owners of the copyright are and then negotiating the terms of the permit. Clearing music, for example, is dependent on many factors including the nature and purpose of the use, the territory, the frequency (how many times will the music be played) etc. Clearing other material may depend on different/other factors.
Having said that, there are circumstances where the use of some material (visual, music or others) may not require clearing and may be considered fair use. This is true in the context of documentary movies for example. The concept of fair use (or fair dealing) allows limited use of copyrighted material without requiring permission from the rights holders. It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship. The scope of use (where and how much) varies from one jurisdiction to another. For example in the US, fair use would include use in fair comment and criticism, parody, news reporting, teaching, scholarship and research, scholar purposes, reviews or documentaries.
So, a movie critic would not need permission to include a small quote from the work being reviewed. In the UAE, the concept of fair use is provided for however, the context in which it is applicable relates more to publishing activities. For example, some of the allowed uses include using quotes of short paragraphs, text extracts or studies in the context of a critique, discussion or for media purposes; or copying short extracts of a work in written or recorded form for educational and informative purposes.
It may be difficult to determine whether a use falls within the fair use doctrine. Generally speaking, a greater amount of material may be borrowed from non-fiction works than from fictional works because of the nature of the information being used. If it is historical or factual, there are stronger chances of the borrowed material falling within the fair use doctrine. Of course, if the material is being reworked to create something new and not incorporated as is then it is unlikely that there would be infringement.
There is also no specific number of words, lines, or notes that may be used safely without permission and acknowledging the source of the copyrighted material does not substitute for obtaining permission. To keep it safe, either clear the material or seek legal advice regarding the same.
The first step is to secure the right release. A release is a legal instrument that acts to terminate any legal liability between the releasor and the producer, signed by the releasor. A release may also be made orally in some circumstances. Releases are routinely used by photographers, in film production, by documentary filmmakers or advertising agencies, when they photograph, film, video or record the voice or performance of individuals to be sure that the person consents or will not later object to the material being used for whatever purpose the producer. A release will help in ensuring the copyright owner has a clean chain of title for any work if it is later published, broadcast, shown in public venues or otherwise made public.
There are various releases that may be required depending on what is involved in the production. Some of the more common releases that may be required in the context of a movie or video are:
• General Releases: these should be used for non-actors, and for example, for extras on a set.
• Talent Releases: these should be used with professional actors and models.
• Minor Releases: these must be signed by a parent or legal guardian of a minor (the legal age varies from country to country).
• Materials Release: these should be used for using photographs, video, film or other media which may be copyrighted or owned by others.
• Location Releases: these should be used when you wish to photograph, videotape or record property which you do not own or at a location you do not own - for example, permission from the management of Burj Al Arab to film in the hotel).
Releases are often short documents, however, if a release is not correctly drafted, the producer may find out later that the release did not cover all circumstances and get restricted in the use of the work for which the release was obtained. An example of this is where a release is granted in respect of a video shoot but is restricted territory wise to a single country (e.g. the country where the shoot takes place). If the footage is to be used in an advertisement that is to be part of a global worldwide or regional campaign, then the release is not adequate. You also may want the release to cover all forms of media, now know or unknown.
But first, a word on disclaimers. A disclaimer is a statement that states that a particular entity is not responsible for something in some manner. In relation to productions, disclaimers could be used to state that the views expressed in a movie or documentary do not reflect those of the producers, actors or people involved in the production, or that the characters portrayed in the movie are fictional and any resemblance to an actual person is merely incidental.
The disclaimer would be placed either at the beginning or right at the end of the movie/documentary. Disclaimers are all the more needed when films or documentaries cover sensitive issues or political views for example and where the producers are trying to portray a particular situation without necessarily expressing any personal views on the same: for example a documentary highlighting positive aspects of communism where the producer is not an advocate of communism.
Another example is from a recent case we handled where an advertising agency was preparing a campaign for a company using actors to double as actual employees of the company, praising its corporate culture. In such a scenario, a disclaimer has to be inserted stating that the individuals portrayed in the campaign aren't actual employees of the company. If the views expressed by the actors are not those of the employees of the company but those of the company, than a disclaimer should be inserted stating the same as well.
Another form of disclaimer may help avoid certain circumstances of liability where the content relates to or involves issues of public concern. For example, where animals are being filmed, a common disclaimer found at the end of many movies is "No animals were harmed during the production of this movie". This kind of disclaimer may be more relevant in jurisdictions where animal rights' activists exist but if you're planning on going global, this may be the kind of attention you need to pay to the content of your film and whether there are other areas you need to cover.
Having said that, disclaimers may not protect you against actual libellous content which gives rise to a different kind of legal action (check our previous article on this) but it can certainly shield producers against various situations of liability.
For more information on the Rights Lawyers, go to www.therightslawyers.com.