Five Legal Issues Every Documentary Filmmaker Should Keep in Mind

The entertainment industry can be a legal minefield. And while the legal issues that face documentary filmmakers may not be unique, documentarians — who typically work on shoestring budgets, rely heavily on preexisting copyrighted materials, and often say things that moneyed and powerful interests don’t want to hear — are uniquely vulnerable. With that in mind, here’s a “top 5” list of legal issues that you, our favorite documentary filmmaker (yes, you, silly), should know about when planning, making, and selling your film.

1. Fair Use: Your Two Favorite Words in the English Language.

Repeat after me: “fair use.” Say it again. Roll the words around on your tongue. These words are your friend.

The law is full of little tensions: copyright law gives the creators and owners of copyrighted works the right to control how those works are used and reused for the life of the copyright. The First Amendment gives people the right to speak freely about most any subject of their choosing — a subject that could involve, or may simply be, a copyrighted work. The fair use doctrine is the law’s way of splitting the difference, by allowing the use of copyrighted works, without permission, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Courts look at four factors in deciding whether something is a fair use: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the copyrighted work being used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The more you transform the material you use, the less of that material you use, and the less you stand to compete with the underlying material, the better off you will be.

Sounds simple. But from there, things get messy, fact-intensive, and unpredictable, and the case law is riddled with surprises and inconsistencies. If you ask me whether something is a fair use, the answer is almost always maybe. But to succeed, documentarians on a budget — i.e., all documentarians — must find a way to live and thrive in that space. The Center for Social Media at American University has published a Documentary Filmmakers Statement of Best Practices in Fair Use to get you started, and the FCC recently loosened the rules on circumvention of antipiracy technology by documentary filmmakers. But if your film is going to be completed and released, you will almost certainly need to get a lawyer involved.

2. Copyright Clearance: Yes, You Have to Pay for That. And That. And That.

Here’s the rule for everything that doesn’t fall into the “fair use” rule: you have to clear it. The law gives copyright owners expansive control over how their copyrighted works are used. And while the First Amendment, via the fair use doctrine, serves as a partial check on that power, many a studio lawyer makes his or her living just dealing with copyright and trademark clearance issues. So:

That pretty poster you want to use in the background of an interview set? You have to pay for it.

Your dream song that works so well as background for your dramatic montage? You have to pay for it.

Even that song that is an inextricable part of the story you’re trying to tell? You have to pay for it.

Keep in mind, because many copyright holders (including major studios) recognize that documentary filmmakers aren’t exactly poised to make a huge profit on their works, they often take it easy on the fee demands, seeking only nominal fees or other publicity or consideration in exchange for allowing use of their copyrighted works. But unless it falls within the “fair use” exception, never assume that your use of a copyrighted work is too small or too inconsequential to require you to ask for permission.

3. Defamation and Trade Libel: Just Because You’re Right Doesn’t Mean You Can Afford to Prove It.

Any good documentary — really, any interesting fact — is likely to tick someone off. Oprah was famously sued by Texas cattlemen for airing a 1996 program on mad cow disease. Every “unauthorized biography” is another lawsuit waiting to happen. And “reality” programming (fromBorat to Jersey Shore) draws so many lawsuits from disgruntled subjects, I’m surprised there aren’t infomercials to benefit reality producers (“Every 40 seconds, a reality producer is sued somewhere in the world.” Sad-looking Hollywood types in tattered rags shuffle about in the background).

Here’s the good news: if you’re sued, and you are a legitimate documentarian working with legitimate facts, there’s a good chance you’re legally protected. A statement, no matter how embarrassing, can’t be defamatory if it’s true. It’s legally impossible to defame the dead. And thanks to the First Amendment, “public figures” — celebrities, politicians, and people who otherwise intentionally thrust themselves into the public arena — have to prove that you knew what you were saying was false (or acted with reckless disregard for the truth) in order to prevail on a defamation claim.

Now the bad news: just because Oprah won the lawsuit brought by the Texas cattlemen doesn’t mean it didn’t cost her a squillion dollars to do so. No matter how good your position, lawsuits are inevitably expensive, and tend to scare off hesitant distributors like skittish deer — and would-be plaintiffs (and their lawyers) know it.

4. Subpoena Power: You Are Not, Legally Speaking, an Investigative Journalist.

There is something romantic about the hard-boiled, hard-hitting documentarian, diving into a controversial topic in the hunt for truth. But even if most people might view you as a real investigative journalist, the law probably won’t.

Earlier this year, Chevron successfully subpoenaed Joe Berlinger, creator of the 2009 film Crude, which looked at the pollution of the Amazon forests of Ecuador by oil giant Chevron. Chevron convinced a federal judge that Berlinger should be compelled to turn over 600 hours of outtake footage. The company said the footage would be helpful to its defense of a lawsuit brought by a group of Ecuadoreans who claim that the company’s operations contaminated their local water supply. And despite support for Berlinger from the Academy of Motion Picture Arts and Sciences and several high-profile industry types, the Second Circuit Court of Appeals rejected Berlinger’s argument that his footage was protected from disclosure by the journalist’s privilege and forced him to comply with the subpoena. Well, at least Berlinger was right when he figured he’d found a topic people would really want to learn about.

5. Contracts and Accounting: Because In Hollywood, 2 + 2 = -5.

So you’ve navigated points one through four above: your movie is made, you didn’t get sued, and now you’ve even found a distributor. And sure, you didn’t get into documentary filmmaking to get rich…but it wouldn’t hurt to get paid, would it? Of course not!

But before you go spending your 15 points of “back-end” on a new car and a steak dinner, just remember that a good Hollywood accountant can make 2 + 2 = -5 (and that’s if they’re feeling generous). Between print-and-advertising costs of distribution and Russian novel-like participation definitions (long, complicated, and deadly), Hollywood studios are notorious for “never making a profit” (on paper). And while recent jury verdicts and appellate decisions in favor of major profit participants may signal a shift in the balance of power between studios and participants, cash is still king. So until you have real bargaining leverage, try to focus your deal on up-front advances, cash guarantees, and clear box office bonuses (which are harder to blur on the balance sheet).

This blog was originally published as a contribution to the GlobalShift Film Festival, GlobalShift’s tribute to the role of documentary filmmakers in building awareness and facilitating positive change in the world. To see other contributions to the GlobalShift Film Festival, please click here.

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