George writes in with a question about location releases and permissions.
I'm Gordon Firemark and this is asked and answered where entertainment law questions so you can take your career and business to the next level.
So, here's George's question:
I am a filmmaker and have permission from a tribute band to film them at a concert in a theater in Connecticut. The theater said the band can be filmed there but an agreement needs to be signed basically saying that the footage cannot be used for commercial use or they will sue, or they want 800.00 to allow us to film there. It seems this is not an issue of liability or they would demand the fee for insurance purposes.
What right does the theater have to sue the band or even me for filming the band's performance in their theater?
What rights do I have as the filmmaker in getting permission from the band to use them in my film while performing at this theater?
Well, George the band doesn't own the theatre, so they don't have the right to grant permission to film there. Only the owner can do that, and he can put whatever conditions on the filming he wants. And that includes charging a fee. And, it's common for location owners to charge a fee for use of their premises…
Filming on the premises without permission is probably a form of trespass, and can give rise to civil and possibly criminal liability. So that's how they have the right to insist on a payment…
But trespass is a state law issue, and varies from place to place… So check with a local lawyer familiar with the issue.
An interesting wrinkle though, is whether using footage captured in a club or theatre within the context of a film is really “commercial”. In first amendment discussions, where we look at a government restriction, it probably wouldn't be considered commercial. That term would more likely apply if the film is being used to promote the band, or a product of some sort, like an album or concert tickets. So, it makes sense to talk with the theatre about what they mean, specifically, when they say no commercial use.
But ultimately, $800 is cheaper than any lawsuit… Even if you win. What's your time worth for defending against this?
So, the practical advice, pay the fee, or don’t use the footage.
Now, if you have a question that you'd like to see answered here, please send it to me at https://firemark.com/questions
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