Three Legal Tips for Creating a Documentary
So, you’ve decided to make a documentary—congratulations! The world is an incredibly interesting place full of endless topics and individuals that viewers would love to learn about. Documentaries are also increasingly more popular thanks to streaming platforms like Netflix transforming the genre from boring films shown in middle school classrooms to thrilling docu-series that captivate people of all ages (Tiger King, anyone?).
Before you grab your camera and hit the streets, there are several considerations: topic, money, location, etc. must all be carefully planned out. In addition, there are several important legal considerations to keep in mind so that when your film is complete, you can actually show it and possibly make money from it.
1. Contracts, Contracts, Contracts
When you’re dreaming about what a success your documentary will be, you of course think of agreements with companies like HBO or Netflix, which will, of course, entail contracts. However, remember that you are best protected if you have a contract with everyone involved. Yes, we mean EVERYONE! From agreements with anyone collaborating on making the film, to written releases for anyone interviewed, your rights and responsibilities all need to be spelled out and solidified beforehand. After the film is released, it is exponentially harder to negotiate terms, especially regarding money. Having all the details handled at the start is the best way to protect yourself.
2. Be aware of intellectual property rights
As you may know, the work you create is protected by copyright law. However, the same protections you rely on are the same protections that cover others. This means that you have to be cautious about any work created by others that you incorporate into your work. The most common example of this will be any music that you use.
3. Know “fair use”
There may be instances where you do want to include copyrighted material in your documentary. This is where the fair use doctrine is helpful. Under the fair use doctrine, brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder. When considering whether fair use applies to material you are considering using, think about what purpose the material serves in your documentary. Will it add to the discussion, or is it merely entertainment? If the former, then it is likely fair use. If it is the latter, then you may want to reconsider (or seek the advice of counsel).
Making a documentary is a complex process with a lot of moving pieces. These are nowhere near all of the legal considerations when creating a documentary, but they will get you started on the right path. We recommend retaining counsel who can guide you every step of the way.