Pre-Production Procedures: How to Avoid a Headache and Enable Proper Clearance.
What every documentary filmmaker should know.
By: Julie C. Wiediger, Esq.
There are several things to think about prior to the production of a film. If you have a film with commercial potential and you want to avoid the headaches associated with inadequate planning (and subsequent lawsuits), consider these issues prior to obtaining a Distributor and Producer Errors and Omissions Liability Insurance. Several steps should be considered and completed to permit the proper clearance necessary to avoid litigation and to obtain appropriate E & O Insurance. The money and time spent prior to production will be well worth it.
Procedures presented in this article are intended to provide a general guideline to “clear” the film for distribution, qualify for E & O Insurance and to otherwise successfully exploit the film. More precisely, utilizing proper clearance guidelines will promote profit without infringing or violating other content rights.
Retain Legal Assistance
In general, an attorney should be retained as early as possible to assist the filmmaker in monitoring the film from its inception, to avoid and eliminate materials that could give rise to a claim. The E & O application will usually require that an attorney be retained for such purposes, so it is best to have an attorney on board as early as possible.
Monitoring
Either way, the filmmaker should continually monitor the film through all its stages with an eye toward removing infringing material, and with an awareness of any potential claim or litigation.
Contracts and Releases
The filmmaker should obtain rights (in the form of written agreements, waivers, warranties and releases) to manufacture, distribute and release the film from ALL writers, directors, actors, musicians, composers and others providing any material for or working with the film. The same is true where trademarked products or distinctive locations, such as personal property, or buildings are filmed. If pre-existing material that may be protected by copyright—such as photographs, art objects, articles, book covers, magazines, and newspapers—is used on the set, or in any other manner, the written consent of the copyright owner of any such material must be secured. The only exception is for material that may be used under the doctrine of “fair use.” However, please discuss what qualifies as fair use with a competent attorney, prior to incorporating it into your work.
It is also crucial that releases be obtained from any recognizable “living persons” and the personal representative of deceased persons, when necessary, (including thinly disguised versions of living persons) where names, faces, or likenesses are recognizable. The filmmaker must be aware of any guild obligations (such as minimum compensation requirements, work hour restrictions, and crediting requirements) and that future agreements with distributors recognize these obligations. Specific contracts that come into play when producing a film include the following: a Development Agreement, Underlying Rights/Option Agreement, Writer’s Agreement, Pre-Production & Production Agreement, Director’s Agreement, Cast, Crew, Facilities (collective bargaining) Agreements (such as PACT, MU, and Equity), Production Finance Agreements–loan, pre-sales, bank security, completion agreements, collection guarantees, distribution agreement, license fee/theatrical & video distribution agreement. It is imperative that the filmmaker possess carefully drafted agreements to specifically give the filmmaker and distributor all necessary rights and to provide for all necessary warranties and releases.
Script Clearance
Script Clearance is an important tool to avoid potential claims and litigation. The script should be reviewed prior to the beginning of any production to eliminate matters referencing a particular individual or group of individuals. In addition, where actual events are portrayed, the author’s sources must be ascertained. Not only should an attorney review the script, but it may be necessary or advisable to retain the services of a reputable script clearance company to extensively search the names and locations used in the script. Such a report will then be reviewed by the attorney, who will make necessary suggestions. If the script violates any person’s rights, an attorney will advise the filmmaker to revise the script. Often minor changes, such as adding a disclaimer or changing names can easily resolve the issue and protect the filmmaker and distributor. Such changes are affordable and easy to make prior to production, but can be incredibly costly if they need to be made post production. The filmmaker also should consider submitting the script to the Writers Guild of America, and should certainly register the script with the Library of Congress using form TX.
Copyright Report
A copyright report should be obtained unless the work is an unpublished original not based on any other work, and a copyright report also should be obtained for all underlying works. If the film is an unpublished original, the origins of the work should be determined and it should be ascertained if other similar works were submitted to or received by the filmmaker and, if so such submissions should be cleared to avoid copyright and submission claims. In addition, the filmmaker should register his or her film with the US Copyright Office using form PA. The script can and should also be separately registered (as mentioned above.)
Title Clearance
Prior to final title selection, the producer or filmmaker should do a preliminary trademark and copyright search. Once a title is selected, the attorney or filmmaker should obtain a title report from a reputable company. Once the report is obtained, an attorney should review and analyze the report with an eye toward any potential infringement.
Licenses
All necessary licenses for music rights must also be obtained. Specifically, the filmmaker must obtain musical rights as well as recording, synchronization and public performance licenses from all interested parties. This can include licenses from the owner of a master as well as the copyright proprietor of the music and lyrics. Where original music was commissioned, a warranty of originality and an indemnity against third party claims should be obtained from the composer. Licenses and consents should also be obtained where any film clips or photographs are used in the production.
If these guidelines are properly followed the likelihood of avoiding litigation, and obtaining distribution and E & O Insurance is increased dramatically; as does potential for profitability.
