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BY BOB LABATE AND KRISTEN FLIGEL
Quite a few myths exist regarding documentary film production, and here are a few that are both common and difficult to eradicate.
Myth: Compared with indie feature films, documentary films are relatively inexpensive to make, usually costing under $100,000.
Actuality: Indie documentary films are no less expensive than indie feature films, with an average cost somewhere between $250,000 and $300,000 (including deferred costs) for those of broadcast quality.
Creating documentary film is a time intensive process. While some cost savings may result from use of fewer actors (and the willingness of directors, film editors, camera operators, sound people and similar professionals to work for less money), it is more than off-set by the need to compile dozens, if not hundreds, of hours of film interviews and background scenes for every completed hour of film. Use of less expensive methods (such as sound stages and re-creations) is rarely possible. Music license rates may be lower for documentaries, but the savings is often eaten up by the increased cost of licensing background (or primary) film footage that cannot be obtained directly.
Myth: The "fair use" exception to the Copyright Act means that documentary filmmakers do not need to "clear" copyrights.
Actuality: There are very few absolute protections to documentary filmmakers provided by the "fair use" exception to the Copyright Act and the cost of defending a Federal Court infringement action would bankrupt most documentary producers. A quick look at section 107 of the Copyright Act (www.copyright.gov/title17) will give you a list of factors the courts consider when faced with a "fair use" defense, but you should not try to reach your own conclusions about the merit of such a defense in a particular circumstance without help of experienced counsel. It is safer to assume that you cannot use pre-existing copyrighted material (music, film clips, book excerpts, poems, paintings, etc.) without the copyright owner’s express permission.
Myth: My First Amendment "free speech" rights allow me to tell a documentary story without concern for an individual subject’s life rights, publicity rights or privacy rights.
Actuality: First Amendment protections arise only under specific factual circumstances involving some form of governmental action. Therefore, always assume that if you do not obtain a written waiver or consent, you will violate an individual subject’s privacy rights or infringe his or her life or publicity rights.
Not every state recognizes such rights and those that do differ quite a bit on what’s protected and what’s not. So you should not tread here without experienced counsel or an experienced documentary filmmaker providing you with advice and guidance. For those in Illinois, you can find assistance by contacting the Lawyers for the Creative Arts (312/649-4111).
Myth: Incidental use of a song, video tape or artwork is not copyright infringement.
Actuality: There is no "minimal use" exception in copyright and use of ANY recognizable portion of another’s copyrighted work constitutes infringement. If your documentary includes people singing "Happy Birthday" you will need to obtain written permission from the copyright holders of that song before you can exhibit or distribute your film. If you include a clip of someone else’s movie or photograph or piece of art, then you must obtain written permission for use of that clip. And if your film contains recorded music, assume that you must obtain both a synch license (from the music owner or publisher) and a master use license (typically from the record company).
Myth: Almost everything and everyone in a public area is in the "public domain" and no releases are required.
Actuality: Unless you are told otherwise by your counsel, assume just the reverse, that everything in your film requires a written waiver or release. Even buildings usually thought of as being in the public domain may contain some copyrighted architectural detail or copyrighted sculpture, and location releases are generally required for any shots inside or in front of any building. People in public places may still retain rights of privacy and publicity even if you obtain their "verbal" approval to film. If you are shooting in an auditorium or other entertainment venue, you should post signs notifying patrons that by entering the hall they consent to use of their images in the program. Obtain such "notification" language from your attorney.
Myth: Obtaining a written and signed standard release or waiver will solve all of my privacy, life story or publicity rights problems.
Actuality: Each person’s circumstances are unique and a "standard" written release prepared for one purpose may not be adequate for another person or purpose. For example, minors require the consent of their parent or guardian, but may revoke such "adult" consent once they reach the age of majority (normally 18). Moreover, a person who is portrayed negatively in your film may seek to revoke his written consent on the basis that it was obtained without adequate disclosure or because he believes he was portrayed falsely.
Even a valid written release may have little value if it does not include use in all media throughout the world. Also, be sure that the written waiver permits you to make, or license others to make, videotapes or DVDs and to distribute your film in international markets or over the internet. Since very few filmmakers do their own distribution and exhibition, it is important to obtain the right to assign and to license the rights you’ve acquired.
Myth: Obtaining the creator’s permission for use of a song, literary work or other copyrighted work is sufficient.
Actuality: Obtaining the author’s written permission is sometimes helpful and sometimes not (Michael Jackson and Sony/ATV hold the rights to many Beatles’ songs), but it is rarely the only permission you will need to obtain. Although music is "created" by a composer (and possibly a lyricist), songs are usually "administered" by a music publisher who often has sole authority to grant or deny use. Similarly, because most copyright protection lasts for the life of the individual author plus 70 years, the right to use a film or piece of artwork often lies with the creator’s heirs or other representatives. So, you may want to check with the Copyright Office before you commit to use such work.
© 2002 Robert J. Labate. This column is provided as a source of information and is not to be construed as legal advice or opinion. You may contact me via email at rjlabate@mbc.com or, via mail, to Robert J. Labate, McBride, Baker & Coles, 500 W. Madison, 40th Floor, Chicago, IL, 60661 312/715-5700. All individuals depicted or described are fictional.