What Are Your Rights as a Documentary Filmmaker? A Primer on Permission
Knowing your rights as a documentary filmmaker—and having the right forms to back them up—is the armor you need to chase the biggest stories of our times.
If you’ve got a camera rolling in the midst of a police-protestor stand off at Standing Rock, you’re sure as hell not going to take time to pass out release forms. Fortunately, freedom of speech and freedom of the press is a constitutionally protected right. Whereas, if you’re sitting down for an interview with a subject, you’re obviously going to want a signed release. What’s the difference? To help you sort through the nuances of documentary filmmaker rights, we’ve compiled a breakdown of releases for people, places, and things in your documentary according to experienced lawyers and filmmakers.
Important legal disclaimer: I’m no lawyer, and No Film School is no substitute for one. This article is meant to help you navigate your way through documentary rights. Compiled with anecdotes from experienced filmmakers behind movies like DamNation, 112 Weddings, and Big Joy: The Adventures of James Broughton, as well as attorney Mark A. Sternberg of Creative Content Law, this is a great place to begin familiarizing yourself for your next foray into the field. We've included links to free releases that are oriented towards documentary filmmakers, but as with everything else in this article, use your own judgement and assume your own risk.
"As a shoestring filmmaker, just entering court to begin with is already the worst case scenario.”
Why you should bother
Here's the deal. While filmmakers enjoy First Amendment protection, regular people are likewise protected from such affronts as character defamation, violation of privacy and copyright infringement. Distributors who might want to pick up your film don’t want to get sued for any of these things. Therefore, most distributors require you to have releases for every person, property, or entity used in the film. (And to use those releases to then get Errors & Omissions insurance.) Since you likely want distribution just as much as you don’t want to be sued, getting signed releases is the way to go whenever possible. Below, we've broken down releases you need for people, places, and things, as well as considerations for fair use.
A personal or appearance release is what you ask someone to sign who appears in your film. (Or, if the person is under 18 years of age, that their legal guardian signs.) How badly do you need personal releases? If a person’s story is of interest to the public, and you’re covering real facts about them, there’s nothing stopping you from telling that story, release be damned. However, in the interest of not having that person sue you later, you want to get a release when you can.
For example, on one end of the spectrum, you have the producers of The Cove setting up hidden underwater cameras and microphones for much of their production. They certainly didn’t get releases from Taiji dolphin hunters, who we presume would not have agreed anyway. After the film reached the public, only one legal case arose, and that was against the Japanese distributors of the film, by Japanese scientist Tetsuya Endo, who wanted his scenes taken out and $131,000 in damages for his tarnished reputation. Director Louie Psihoyos admitted he could not find a release for Endo.
On the other end of the spectrum, you have Errol Morris. Once sued by the very man Morris' film The Thin Blue Line freed from death row, his latest documentary Tabloid also landed him in court with his subject Joyce McKinney. The court threw out all aspects of the case, including citing that because McKinney signed a release, she “voluntarily and affirmatively injected herself into a public discussion about the tabloid media.” (Read this fascinating write-up on the verdict by the UPenn Docs & The Law Blog on the case.)
"When you edit someone, there is an argument on their end that you may be taking them out of context."
From a distributor's perspective, the more legally protected you are, the better. If you're looking to minimize risk, get a signed release from every subject acknowledging willing participation and absolution of various legal claims against you, regardless of how you plan to portray that subject in the film. Attorney at law Mark Sternberg advises that you make sure the release protects you against the worst-case scenario. “One common thing I see is filmmakers use a release form for a subject that doesn’t include the right to edit the subject,” says Sternberg. “And when you edit someone, there is an argument on their end that you may be taking them out of context. Certain claims, like defamation, may arise if they think you are twisting their words. I’m an attorney, and I have to think of worst-case scenarios. I have to think of the case where a subject may come back and say the filmmaker twisted their words."
Sternberg adds, "Your goal as a filmmaker is to never enter court. The minute you step in a court, the clock starts ticking and the money starts flowing from you to attorneys and everyone else. As a shoestring filmmaker, just enter court to begin with is already the worst case scenario.”
Sometimes, you may need to get releases after the fact. Here's how it worked for filmmaker Doug Block when he wanted to make a film about the people whose wedding videos he had filmed over the course of decades, for what became the feature documentary 112 Weddings:
We had to go to each of the couples and not just get their permission but also get a signed release. And not just the couples who I interviewed, but everyone who was shown in the film (ie. the interstitial scenes that I narrated). I owned the footage, but my original agreement with the couples was that I would need their written permission if I were to use the footage for any other purpose than a wedding video. And it was necessary for delivery to HBO, as well. They're real sticklers.
Luckily, the couples loved their wedding videos and pretty much all remembered that I'm primarily a documentary filmmaker. I think they were flattered I would want to have them be part of the film, so very few turned me down. Mostly the divorced ones (and even they were few).
Block’s producer, Lori Cheatle of Hard Working Movies, would confer on strategy for any couple they thought would be more challenging, and once Block had the OK, she had an AP follow up with release forms.
While the nature of Block’s film required him to follow up with people many years later, most documentaries will be more focused on the immediate. You never know how long it will take to finish a film, and the last thing you want to do is have to track down your subject years later and hope he/she is still willing to be involved in your project. Here's how it worked for filmmaker Laura Checkoway in her film Lucky, which started out following a few characters, and ultimately zeroed in on the story of Lucky Torres:
Lucky signed a release early in the process, as did everyone in the film. Little did we know that it would take six years to film this story! As a first-time filmmaker without experience with release forms, I'm thankful that my producer Neyda Martinez and attorney Fernando Ramirez gave me releases and told me about their importance early on.
Sample Personal Releases:
- Personal Release Form from NYU Journalism
- Documentary Release Forms (Including Personal Appearance & Minor Appearance) from David Tamés of Kino-Eye
- Personal Release Form from Howtofilmschool
- Talent Release Form from PremiumBeat
If you're filming on private property without permission, getting arrested for trespassing might be your first concern. Beyond that, what about places that you're allowed to be in, like Disneyland, McDonalds or SeaWorld, but you don't have permission to film in? We’ve all seen examples of filmmakers taking on Goliath locations without a release. (Actually, after the release of Blackfish, it was SeaWorld that was met with a lawsuit over false advertising that was revealed to customers in the film, though the case was eventually thrown out.) But if you’re not looking for that kind of heat, and you are not in the act of trespassing to get footage, by all means get a release from the owner of the location.
Public places may be game, but keep in mind that, when you buy a ticket to a place, Mark Sternberg notes that you may be inadvertently signing a contract with them. "The ticket may say on the back at say, a baseball game, whether filming is allowed or not. That ticket is considered a contractual agreement. So they may not get you on trademark infringement, but they may get you on violation of contract. For example, you can’t film on the MTA. You can’t ride on it and film there because the MTA only allows filming with permission, and since you’ve bought a ticket to ride the MTA, you entered a contract with MTA agreeing to their rules, one of which is that you can’t film without their permission.”
If you can’t get permission, but it’s crucial to your film, it's time to work up your courage. That's what Felt Soul Media filmmaker Travis Rummel, who produced and co-directed DamNation, had to do to film at some controversial dam sites:
Our approach was to opt for the old adage of it's better to ask forgiveness than to ask permission and get denied. We had to trespass for almost every shot in the film. We did have permission to film in Olympic National Park for the removal of the Elwha Dam, but we were super limited with access, so we had to push the boundaries a bit. We ended up having to talk to the park superintendent after our trailer came out. It was a bit frustrating, but we ended up getting the shots we needed but only by truly going for it. I think the scene where Ben is dressed in camo hiding from a law enforcement helicopter seconds before he filmed the explosion at the Condit dam is emblematic of our approach.
We were concerned that when we finished DamNation that the lawyers at Patagonia (who hired us to the make the film) would ask that we remove certain scenes, but thankfully that ended up not being the case at all. We worked with a great entertainment lawyer that helped us with our E&O insurance. Once that was locked in, we were good to go.
On the other hand, if your project revolves around a place that would require permission to begin with, like filming the disappearing old world charm of a restaurant in a rapidly changing neighborhood for the documentary John’s of 12th Street, you may want to take unnecessary worry out of the equation like filmmaker Vanessa McDonnell did:
My film was shot entirely inside of century-old Italian restaurant, and I actually made sure that I got a location release form from both owners of the restaurant. Overkill perhaps, but I don't like to hope for the best with such things. Filmmaking itself is anxiety-provoking enough without having to worry about rights issues.
Sample Location Releases:
- Documentary Location Release Form from Rochester Movie Makers
- Documentary Release Forms (Including Location) from David Tamés of Kino-Eye
Photographs, audio recordings, news clippings, sketchbook doodles—these are just some of the materials you would want a signed release for. And it can often be confusing figuring out who can sign those releases. Think there’s no copyright? Think again. Mark Sternberg points out that a rookie mistake is thinking that there’s not copyright on a work if it hasn’t been registered with the Copyright Office. "The minute any work of art is fixed onto a tangible medium, and has a modicum of creativity to it, there’s a copyright in it," says Sternberg. "If someone infringed on it, you would have to prove damage in court. Nevertheless, there’s copyright on it. People get confused a lot when someone gives you a photo. Say your subject gives you a photo and says, 'This is me as a child.' Well, if it's a photo of them as a child, they didn't take the photo. Some people that are risk averse get clearance on everything. The person who took the photo, the person in the photo, the person who owns the photo."
"You have to pay one rights fee to the television station, another to the archive where the footage is kept, and another to digitize the film."
With a documentary that requires a lot of archival material, this can be quite a chore. Here’s how Stephen Silha, the producer and co-director of Big Joy: The Adventures of James Broughton, handled it:
BIG JOY has a lot of archival material in it. We had four researchers at one point trying to find specific images and film clips, and to hunt down who owned the rights. (The James Broughton Archive at Kent State University had many images which we found, but didn’t know who took the photos and had to show 'due diligence' that we had tried to find the photographer or his/her heirs.)
We were fortunate that Joel Singer, keeper of the James Broughton Estate, was willing to give us full access to all of James Broughton’s films and written material (23 films and 23 books). Without that, we could not have made the documentary. But there was a hitch: nobody could find James Broughton’s will! We were also fortunate that—thanks to a chance meeting with a lawyer at a community theater production—we had pro bono representation from one of the top film rights law firms. They drew up an agreement which was signed by Joel and by two of Broughton’s children giving us full rights in all media in perpetuity.
Silha also noted that you can try negotiating down the prices for archival footage, especially because archives might charge different rates for different usage such as festivals vs. theatrical. He says, "Sometimes they will let you use the materials just for getting them digitized, or for a copy of the film. Other times, such as the television footage of Lawrence Ferlinghetti at City Lights Books in the 1950’s, you have to pay one rights fee to the television station, another to the archive where the footage is kept, and another to digitize the film."
Sample Materials Releases:
- Documentary Release Forms (Including Materials) from David Tamés of Kino-Eye
- Materials Release Form in PDF or Word from Canadian Independent Film and Video Fund
What about fair use?
All documentary filmmakers should familiarize themselves with the concept of fair use–it’s an ever changing guideline based on legal precedent of what we can and can’t use without permission. Filmmakers have gone to great lengths to put together helpful tools to understand when you can apply Fair Use, spearheaded by The Center for Media and Social Impact who compiled this extremely useful Documentary Filmmakers' Statement of Best Practices in Fair Use available to all filmmakers to download. Here is an excerpt of the preamble in the Statement:
This Statement of Best Practices in Fair Use is necessary because documentary filmmakers have found themselves, over the last decade, increasingly constrained by demands to clear rights for copyrighted material. Creators in other disciplines do not face such demands to the same extent, and documentarians in earlier eras experienced them less often and less intensely. Today, however, documentarians believe that their ability to communicate effectively is being restricted by an overly rigid approach to copyright compliance, and that the public suffers as a result. The knowledge and perspectives that documentarians can provide are compromised by their need to select only the material that copyright holders approve and make available at reasonable prices.
The document goes on to explain the circumstances under which something in your film would be considered fair use by a court of law. Fair use can be a powerful tool when used correctly. Keep in mind, as Mark Sternberg explains, a lawyer will need to sign off on your fair use argument, because “a distributor will require E&O insurance. E&O insurance will push back on it until you get a Fair Use Opinion Memo, and then you’ll have to go through a lawyer that is convinced of your fair use defense to sign off on it.”
What about footage in the public domain?
Finding footage in the public domain is like a Craigslist free curbside alert: you can use it in whatever way you like without any special permission, but you have no control over its quality. Footage is in the public domain if the copyright has expired or there is no copyright to begin with, like works made by the United States Government. Find out more about public domain footage and where to find it in our NFS breakdown here.
Reaching out to a lawyer
When you have a pretty good idea about the documentary you want to make, a brief meeting during preproduction can put you in a great position moving forward. You generally pay a lawyer in increments of time, so Sternberg suggests that you make the most of it. "It’s better if you’re prepared before you enter the room. The best lawyers will know every aspect of every potential problem because they’ve been in the industry for years. However, there are varying levels of attorneys, and you'll be better taking out the guesswork if you come in with an idea of the issues you may be facing."
Do I need releases If I don’t plan on getting a distributor?
If a big part of getting releases has to do with acquiring the E&O insurance that a distributor will require of you, you may feel that it doesn’t matter if you don’t see your films getting to that stage. However, as Sternberg points out, Youtube and Vimeo are still more or less distributors. “There’s nothing that sucks more than your video getting a million views, and then getting shut down because you don’t have clearance for something. Especially when you get into multichannel networks (MCN), they don’t want to represent you if you have too many copyright flags, because it will go up to them.”
Documentary filmmaking is a complicated vein of journalism. Filmmakers want freedom to break stories and cover topics that add to our culture, while regular people want privacy and protection from being misrepresented, and creators want credit for materials they have made. You want to protect yourself and your rights. At the end of the day, not being able to get permission shouldn’t keep you from tackling important stories of our time.
Common sense, hard work, preparation, and keeping a handful of blank releases in your camera bag that you’re not afraid to use can help you become the best documentary filmmaker you can be.
The more documentary filmmakers learn about their rights, the more we can help each other exercise those rights. Here’s a list of great resources that can help further your understanding of the legal aspects of making a documentary:
- Documentary Filmmakers' Statement of Best Practices in Fair Use from The Center for Media & Social Impact
- Clearance & Copyright, 4th Edition: Everything You Need to Know for Film and Television by Michael Donaldson & Lisa Callif
- The American Bar Association's Legal Guide to Independent Filmmaking, with CD-ROM by Michael Donaldson & Lisa Callif
- Mark A. Sternberg at Creative Content Law
- ITVS Production Manual (This $50 handbook comes with a CD of blank releases acceptable for public television)
- The Pocket Lawyer for Filmmakers: A Legal Toolkit for Independent Producers by Thomas A. Crowell Esq.
- No Film School's Sources of Public Domain Footage for Your Documentary
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