Whose Permission Is It, Anyway?

It appears that everyone who has a camera can be or thinks he or she is a filmmaker.  The resources are such that make this realistically feasible for the financially deprived.  As digital distribution options grow plentifully on a global scale, getting your movie out and bringing money in becomes less of a pipe dream and more of a possible reality.  Micro-budgets and crowdfunding avenues make upfront costs shrink to a fraction of what it takes to make a Hollywood-level film, and the evolution of acceptable formats satisfy consumer pallets sometimes in 4 minutes or less (i.e. ‘webisodes’).  The rules have changed and the processes have simplified.  Truly, anyone who has even a cellphone camera can make the next Blair Witch Project or Clerks 4.0 – the reboot.  Still, as options increase so do legal complications.

New ‘Acts,’ policies and laws regularly crop up to ‘protect’ artists while conversely deterring them from producing.  What often deters artists from making a living with their craft is the multitude of legal hurdles to hike under and over.  I may be speaking blasphemy to the independent, rogue creative, but thank goodness for lawyers.  Without them, our ignorance may make the difference, as Ana-Klara H. Anderson of the law firm of Thomas & LoCicero PL says, between bank or bust for an artist’s labor of love.  Without legal protection front-loading, she says, “You invest a lot of time, money and creativity only to be stopped in your tracks.  All that hard work would be for nothing.  It could bankrupt the work.”

So what types of IP protection should a filmmaker consider before a film captures first light?  According to Dr. Anderson, the producer should own every piece of intellectual property associated with their project.  This includes the copyright to the creation itself as well as the right to use the idea, concept or work for post-production purposes (i.e. distribution and exhibition).  It is similar in the music business to the difference between an artist’s musical work and the sound recording of that work itself.  Permissions are required for both.  Other assets that need protection are sound, script, music and the right to use the title.  Yes: the title.  The film’s title becomes its trademark, captured in a catch phrase as its identifier.  Also, if a filmmaker desires to place specific products within the film for funding, permission needs to be secured before – not after the fact.  These points seem obvious, but they wouldn’t need articulation if filmmakers practiced them.  Obviously.

One of Dr. Anderson’s points stood out poignantly in its obviousness: Filmmakers contract with actors to employ their ‘product.’  An actor’s performance secured in a tangible medium, i.e. film, is a copyrighted product.  As such, permissions required are dependent on variables, variables Dorothy Fadiman, a social change documentarian considers based on the situation.  In an interview with Tony Levelle of MicroFilmmaker Magazine, Dorothy says there are two releases she acquires for each shoot. “’The first is a “model release” or “signed permission form” from each [talent].”  She says the two are important for both the film itself and for publicity afterwards.  All permissions, Fadiman says, are designed not only to protect the artist but also the filmmaker.  Dr. Anderson concurred.  She stressed the importance of “memorializing things in writing.”  Word as bond holds no water in court and, from history, intellectual property disputes are diverse in their frequency.  This is why seeking legal council for permission review and advisement is an essential investment.  Tony Leville echoes this in his MicroFilmmaker article by saying, “the money and time you spent finding and talking to an entertainment lawyer could very well turn out to be the best money you spent on the entire production.”  I’m a fan, Tony.  I’m a fan.  Glossing over the legalities associated with filmmaking, out of complacency, is a dangerous tightrope to dance on.

My interview with Dr. Anderson was both informative and reassuring.  Reassuring in the sense that all the textbook warnings I’ve received are true.  We, as artists, pour our heart and soul into our craft.  It takes tremendous self-investment to turn a vision into reality.  It may be true that all capable thought and effort is spent on its creation, but that is no excuse for disregarding legal formalities and laws.  The hassle is no hassle if viewed as a shield and protection for both you and the work itself.  In the immortal words of Smokey the Bear, “Only YOU Can Prevent Forest Fires!”  Boy I hope using that tagline passes the “fair use” test.  I might need to consult my lawyer on that one.

________________________________________________________________

Ana-Klara H. Anderson, Ph.D, Esq.

In 2009, Ana-Klara earned her law degree from the University of Florida Levin College of Law and her Ph.D. in Media Law and Policy from UF’s College of Journalism and Communications.  Ana-Klara has authored numerous articles for media law publications and has been a frequent guest lecturer throughout the southeast on First Amendment and media law issues.  In her commercial litigation practice, Ana-Klara litigates commercial disputes for corporate clients, including contract disputes, class action defense, business torts and related areas. She also prepares and reviews contracts and other documents related to business operations and management, with a particular emphasis on the arts, entertainment, and publishing industries.

Areas of Practice: Media/First Amendment Law; Contests & Sweepstakes; Corporate Litigation; and Arts & Entertainment Law.

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