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Why Documentary Filmmakers Must Take Care of Legal Business Early and Often

Why Documentary Filmmakers Must Take Care of Legal Business Early and Often

I’m an attorney in the business of assisting filmmakers. If you are working on a documentary, I must insist that you sign agreements early and often. Documentary filmmaking cannot be a sustainable business if it’s not treated as a business. I am writing this because I have seen far too many good people end up in bad and costly situations because they did not make getting agreements signed a priority.  

If you don’t have your ducks in a row, meaning all agreements negotiated and signed, no distributor will take on the risk of litigation that accompanies distributing a film with pending legal claims. Why should they? You did not run your business like a business, but they sure as hell do, and your film is not worth a lawsuit to them. 

I am singling out documentaries because I don’t see this same kind of thing nearly as often with narrative features (although of course, it still occurs). Perhaps with independent narrative features, where private equity financing is the chosen method of financing, there is an upfront understanding of the stakes, the unavoidable need to retain an attorney to avoid violating securities laws and the insistence on securing rights and necessary agreements with, at the very least, key crew and above the line individuals. But it seems that in documentary productions, the failure to address legal issues early on is an endemic problem.
Is this because documentaries are not considered moneymakers, so the business and legal aspects of filmmaking are overlooked? Even if it’s not about the money, there are other important things to consider, including intellectual property rights, professional reputation and credits. The business of documentaries relies heavily on relationships, so part of your job as a documentarian is to make sure your relationships with your team are clear, solid and embodied in agreements.

Long before you go out into the market with your film, tie up your loose ends and understand that a distributor will require you to provide signed work for hire agreements with all your key crew (i.e., director, editor, cinematographer). If you don’t have those agreements, you won’t get distribution. And if you don’t understand the concept of work for hire, please Google it immediately. It is crucial for you to understand the basics of copyright law, because that is what determines ownership and hence, what you can and cannot do with your film.  

Separately, for those documentary filmmakers producing a film about a living person (note – there are some exceptions here, but that’s for another article), you must obtain in writing that person’s agreement to participate and appear in your film and release you from defamation and other claims. This is non-negotiable!

So here is a suggestion: Instead of spending all of your time focusing on creative, how about spending even 5% of your time figuring out what the expectations are of the people you are working with and making sure everyone is on the same page regarding compensation, credit, and ownership? And then get it in writing. Don’t wait until you have a broadcast offer or your film is accepted at a major festival to first start thinking about your production agreements. That’s like buying a house sight unseen, moving in and being surprised that there is no indoor plumbing.  

Don’t assume anything. Even if you trust your co-director more than anyone, you still need to get an agreement in writing. If not, I will be here to help, but it will cost you multiples of what you would have paid had you hired an attorney early in the process and obtained signed agreements. It may also drive you to therapy, drink, chain smoke or have excessive Oreo intake, because it is incredibly upsetting when you have gone the distance with a film but can’t get to the finish line because that former friend of yours who edited the film “for free” is suddenly demanding things you never imagined. And now that editor has a copyright claim because you never clarified anything or had a work for hire agreement signed.  

Now the life or death of your film is at stake. So you have to compromise and if you cannot compromise, you may have to litigate, a very costly and very unpleasant predicament indeed.  

What I have described here is an awful but totally avoidable situation, as there are many resources available to filmmakers. There are entertainment attorneys who can provide you with the advice and agreements you need to secure the rights that will enable you to sell your film. There is an organization called Volunteer Lawyers for the Arts that provides pro-bono legal advice. There  regularly are workshops on this topic by organizations like Women Make Movies (full disclosure, I am on the Board). And there are many excellent books that can help guide and inform you about the agreements you need and even provide you with sample agreements.  

If you believe in your film and want it to reach an audience, it’s your job to educate yourself about this unavoidable aspect of filmmaking and to get some form of legal assistance very early in the game. You’ll thank me later.

Nicole Page is a Partner at Reavis Parent Lehrer LLP, specializing in entertainment, intellectual property and employment law.  Nicole counsels filmmakers and production companies in connection with issues ranging from financing, rights acquisition, production and talent agreements, exploitation of ancillary rights, content licensing, fair use and clearance issues, and an array of related matters.  Nicole is proud to serve as Chair of the Board of Women Make Movies and is a member of New York Women In Film and Television.
© Nicole Page, 2016

Love documentaries? Watch the doc short “Healthy: A Documentary,” a deadpan satirical short about a young man attempting to eat healthy for two weeks, below:

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