By Heather Giugni, filmmaker and executive director of Family Ingredients
I was asked by PIC staff to write an article on “Tips on Rights Clearances” for filmmakers. As it turns out, this is the one subject – or task – in production I truly loathe. So realizing that I may not be the right person to speak on this subject, I called back PIC staff to say I was not well-versed on this boring subject matter only to be told: “It is one of those topics that is just so bland but people got to know!” It is true. It is BLAND! But, knowing how important it is, I have decided to share these truths.
Fact One: You simply cannot start a project you hope to broadcast on any media platform or screen at any film festival unless you have rights and clearances.
What exactly are rights and clearances? All work elements that involve laws related to copyright, trademark, privacy, defamation and publicity. Music, in my humble opinion, can be the most complicated process of all because musical works include one or more protected elements. It is crazy making but again, without it, any legitimate media platform will not screen your product. If you do manage to slip your project through without the proper legal documents you may wonder what could possibly happen? Well, it could rain lawyers on you…and I imagine that would hurt.
Fact Two: Without rights clearance, producers would not be able to get E&O Insurance.
What the heck is E & O Insurance? Something you cannot live without. Errors and Omissions insurance is a type of professional liability insurance that protects companies and their workers or individuals against claims of defamation, invasion of privacy, infringement of the right of publicity, idea and story theft, copyright infringement, plagiarism, piracy, and the unauthorized use of names and trademarks. Some policies even cover failure to provide screen credit. E & O is a requirement for distribution deals with studios, television, cable and the Internet. Bottom line: E & O Insurance is your best friend.
Full disclosure: When I first started out on this path of collecting stories I did not even know about talent release forms. I was a home-made producer. I thought that asking permission and capturing people on camera was proof enough that everyone agreed to participate. Okay, this was the 80s – don’t hold that against me. When I did learn I needed some signature proof not too many years later; I sought out an attorney-friend who wrote me a multi-page document in a language I could not understand myself! Now imagine sharing this document with kūpuna (elderly) or community members who also could not understand what they were being asked to sign? This was an interview buzz kill. I vaguely recall trying to incorporate this into my producing routine, but I soon gave up. Besides, I was documenting for my community. Who cares about western law? The day finally came when I wanted to produce larger projects with a wider audience potential. I wanted my products to be seen on television. I learned to follow production best practices, which included acquiring all the right documents. Fortunately, by this time the Internet had been fully endowed with every type of legal document you could wish for, from complicated to user-friendly. It was the simplified documents that made it easier to convince a wary participant to sign. That and the fact that producers were suddenly flooding the market and everyone was soon becoming familiar with signing a rights and clearance document.
Fact Three: It is much easier to get clearances in writing during the production process rather than retrospectively.
You do not want to chase anyone down after the fact. It is not just time-consuming but crazy-making and certainly a poor use of your time. Larger productions actually have a position or separate entity that has the responsibility of collecting all Rights & Clearances. But in our Indie world, we often do not have the budget and end up wearing many hats. Just know your R&C hat is the most important one!
Just get it done!