Tracking & Logging Documentary Film Rights and Clearances
In an ideal scenario, documentary filmmakers could go about their filmmaking business without any real distractions or underlying restrictions on the use of various materials. Unfortunately, we live in the real world, and the reality is, copyrights and other restrictions certainly do exist making it challenging for a documentary filmmaker to produce content without first going through various steps and challenges pertaining to obtaining the rights and clearances to use various films, footage and other media. Tracking and logging documentary film rights and clearances can protect the filmmaker from future claims against copyright infringement or various other legal complications.
Can’t I Just Claim “Fair Use”?
You’re probably wondering why you can’t just claim “fair use” for any documentary project that you’re working on. Of course, the answer to this question has several parts and varies.
But in short, fair use is a defense that must be carefully and individually analyzed. Or at least assessed by an attorney. It will also be further assessed by a judge in civil court should a lawsuit be brought forth.
As a starting point for documentary film rights and clearances…
Fair use of copyrighted material is a defense that might be brought up if:
- There is a clear point in why the content was used.
- The filmmaker has ONLY used what was necessary.
- Was the use of copyrighted material fortuitous or incidental capture?
- Is the use of copyrighted material copyrighted?
- Is the use transformative?
- Has due diligence been performed in the identification of copyright holders?
A Starting Point
The above questions are not conclusive, nor do they guarantee a case for fair use. They are a starting point for you in tracking your own use of various content material for a documentary.
And the details of your answered questions should be included in your documentary film rights and clearances tracking log. For your own future protection against a copyright infringement lawsuit.
Documentary filmmakers have more rights and protections or defenses around the fair use of various content needed in the creation of a professional film compared to other filmmakers and producers.
However, before you can include various rights-protected works in your documentary. You’re going to have to keep a comprehensive log. One that tracks any and all instances in which you use rights-protected material.
What to Track
Tracking and logging documentary film rights and clearances should take place for any copyrighted material that you include in your own work.
Whether you’re using photographs, past audiovisual media clips, music that resulted from the incidental or fortuitous capture.
Or even trademarked brands, logos, or other material there is a process involved in logging. Such use and in later keeping track of your confirmed clearance to include such material in your documentary.
Properties
Several clearances should be tracked throughout the production. You absolutely DO NOT want to wait until the production is final.
Only to find out that you overlooked obtaining important rights to a performance or some intellectual property.
In fact, you’re going to want to make sure that you’re tracking three main types of clearances throughout the production: property, people, and locations.
Property
This includes things like film stock, music, the books that a film narrative is based off of, and other intellectual property. You’ll need licenses to synchronize music with your film visuals.
You’ll also need rights from the recording label. And you’ll have to get clearance from copyright holders.
People
This includes signed releases from anyone that appears in your documentary including those you interview and any cast, characters, or crew.
Documentary filmmakers are also responsible for obtaining release forms from individuals’ that they’ll film including rights of privacy and rights to publicity.
Locations
This includes film permits for the various cities and states in which you are filing your documentary as well as individual local releases for private properties.
You should track lease agreements and rental agreements for properties that you film at as well as consent to film the property and use the footage.
Media
Before picture locking a documentary film, you’re going to need to have a plan in place for the tracking and logging of media in your project.
For this reason, documentary filmmakers must have a plan in place for the appropriate tracking and logging of documentary film rights and clearances.
Tracking & Logging Media Rights and Clearances
Whether you make a direct inquiry to a copyright holder asking for permission to use the copyrighted material in your documentary. Or someone else makes this contact for you.
Keeping track of these clearances and others that represent the distinct legal objectives involved in clearing copyrights is absolutely vital to your production.
The first step is to share, with your attorney, a running list of all the copyrighted material that you intend to use or that you have already used in your documentary is key.
You’ll want to make sure that you have addressed the following:
- Consulted with your attorney about fair use. And tracked any material that you will use in your documentary utilizing the fair use protection. You should track the media, the original copyright holder, any communication two of you had. And any defense to fair use.
- Tracked any material that you have used or wish to use in your documentary film. And detailed the copyright licenses that you obtained. Include direct inquiries that you make as well as.
- Any and all material that is under copyright protection. Or which could be subject to various rights protections must be logged. This includes things like photographs, sourced audio files, artwork, commissioned score, trademarks and logos, incidental music capture, fortuitous music capture, and various other materials.
- Consult with legal counsel regarding the rights and clearances that you’ve tracked. Ask for any advice on unique situations that are relative to your individual project. You don’t want to find out after lock that something has to be changed. There’s simply too much involved after all the hard work has been put in prior to picture lock.
Of Utmost Importance
Tracking and logging your rights and clearances is absolutely vital for a documentary filmmaker. In fact, if you intend to distribute your documentary for broadcast on television, cable, or through another channel?
You’re likely to require errors and omissions insurance before your work will be exhibited. Your Errors and Omissions insurance is going to protect you. So long as you’ve properly logged your rights and clearances.
Insurance will not cover anything that is not in the log list. And this could be problematic.
In Summary
So, as you can see, tracking and logging documentary film clearance is important for the process of preparing a film for distribution. And it’s really vital to begin logging everything at the start of your production. With the very first idea you have to create a documentary film.
This way, you can proceed without any major concerns or potential risks involved. Should you need to raise the fair use defense or other defenses in the future.
