In this Asked & Answered video, I answer a question about whether we need appearance releases when shooting documentaries or more commercially oriented stuff.
Jamie is a documentary filmmaker who called to ask me about the need for appearance releases.
Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.
So, Jamie does documentaries. And, that being the case, most of what she's producing will likely fall under the category of “newsworthy”. And she stated her belief that she doesn't really need to get releases from the people she shoots… and she's right, but she should still get them.
Here in the U.S., the Free Speech and Free Press principles in the First Amendment basically allow journalists (which includes documentary filmmakers) to report on things that are newsworthy, even without the formal permission of the people who eppear in their films.
But when I advise filmmakers, whether they're shooting documentaries or more commercially oriented stuff, that they should always get an appearance release signed by people who appear in the piece.
One of the most common problems that comes up is that someone who voluntarily participated in the shooting, later claims that they were duped into doing so by false promises about where and how the project is going to be distributed or released. Getting a signed, written release eliminates this, because, if it's written right, it'll include the right to use the performance in any way, anywhere, any time… no restrictions. It'd be pretty hard for the person, after signing something that says “all media, all territories, in perpetuity” to claim they weren't aware…
- Eliminates legal costs later on.
Let's face it. Anyone can sue anyone, over anything, anytime. And defending against lawsuits is expensive. VERY expensive.
But, if you've got a contract that outlines the parties' rights, that cost of defending against bogus claims will be much smaller, since that contract will be evidence supporting your motion to dismiss the case. And, if the release is written right, those costs and expenses can probably even be shifted over to the other side.
- Exhibitors want releases
Because they want to benefit from the reduced legal exposure and expense we've already discussed, Studios, networks and others who will show your film make it a practice to ask for releases, at least from “key” participants. And, it's always harder and more expensive to get releases after you've finished shooting, and there's a money-deal being offered, so it's best just to get the thing done when you're shooting.
- Insurance Coverage is easier to obtain.
I've never met a distributor that didn't require, or at least prefer, that the producer of the film provide E&O insurance. E&O stands for Errors and Omissions, and this kind of insurance coverage is what pays for the defense if the there's ever a lawsuit over the content of the film. Getting E&O coverage is challenging for all filmmakers. While some providers will rely on your lawyer's legal opinion letter stating that release aren't required, others absolutely require releases… and since that lawyer letter will probably cost you more than getting the release (even if you have it drawn up by your lawyer… which you should) … the answer is pretty obvious.
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