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Legal Checklist for Film & Video Producers

Legal Issues in Film

Whether you are working on a television commercial, developing a documentary, shooting a wedding, or just trying to make money with your YouTube channel, you need to be aware of potential legal issues that apply to the film and video production industry. Some are common to all businesses, some are geography-specific, and others relate to the copyrighted works you are producing and the people helping you to produce them. This article provides a checklist of questions and topics, each with a brief introduction and additional reading.

Disclaimers

First, a word of caution. “Legal” is not somehow totally separate from the rest of what video producers do. If our work is not professional, there are legal risks — having someone hurt on set or forgetting to turn on the camera during a once-in-a-lifetime event can easily result in a lawsuit. If you are sued, having the right insurance and operating under an appropriate business entity, will help minimize your damages.

The information provided in this article is for informational purposes only and not for the purpose of providing legal, insurance or accounting advice. Talk to a lawyer if you need business entity, financing or specialized contracting documents, if you are producing a project for broadcast or commercial distribution, or if any of the questions below raise issues for your project. This list was developed for use in the US, especially the state of Maryland. Many of the details can vary by geography.

Start with the Basics

Man Woman review Document

Do you need to form a separate legal entity, such as a corporation or limited liability company?

Probably yes if this is a business venture or if the filming is for broadcast. Definitely yes, along with legal advice, if you are relying on investors or grants to fund the project.

Is your insurance up to date, including equipment, liability and workers comp?

Not only is this good practice and often a legal requirement, but a certificate of insurance may be required for film permits and private locations. Double-check your insurance if you are renting expensive items — you don’t want to end up financially responsible for a stolen, uninsured car or camera.

Prepare for taxes and accounting challenges.

If you will be making money from this production, or spending money on it that you hope to recoup later, you’ll need to pay income and possibly sales tax. If you are paying employees or contractors, there are additional withholding and reporting requirements. Possibly your production can benefit from state film credits and other incentives. Make sure you are set up for this and will be keeping the necessary financial records. If your tax situation is complicated, a good accountant may be worth the investment.

Do you have the appropriate contracts in place?

If you are being paid for your work, paying others or otherwise spending money and/or time, you should have one or more agreements in writing which include details like the legal names of the parties involved and describes what services are being provided, what are the deliverables, how much is being paid and when, any confidentiality requirements, ownership of the finished work, the timeline and what happens if the project is terminated. For small projects, this could be a simple email exchange, but it should be in writing and both parties should agree to it. For bigger projects, it should be formalized with your lawyer involved.

Is this film or video intended for broadcast or other public distribution?

If so, plan to document your right to use anything you don’t create yourself, including script, music, photos, film clips, and graphics. Some components, such as the script, may even require investigation of the chain of title. An exception is works that out of copyright or available under a creative commons license. Because film and television programs tend to be big budget, you’re likely to need specialized legal and/or research advice as well as Errors & Omissions insurance.

Pre-Production Questions

Woman at computer

Moving forward on a specific project requires attention to a number of planning and budgeting elements, many with legal implications.

Will you be filming internationally?

Allow plenty of lead time and do lots of advance research. Potential issues include the country’s legal and permit requirements; insurance; contracts with foreign entities; travel and transportation; financing cash flow and accounting; working with local production companies, fixers and crew; and whether and how to bring equipment with you. Film commissions can often be very helpful. Also check for tax incentives.

Do you need a permit?

Permits are often required for filming on public property, including parks, schools, and government buildings. A permit is typically required if the production will close or block public rights-of-ways, but local requirements can be much stricter. Permits are granted by local authorities. As a result, requirements, timing and costs will vary by location.

Do you need a location release?

Yes if shooting on private property and your film is for broadcast. Your location agreement should be signed by the property owner, and should cover timing, pricing, rights to use the film shot on the location for other film projects, indemnification of the property owners, and provide for any needed flexibility, such as “rain dates”.

Do you need talent releases?

Yes, if interviewing or filming talent for a project that will be broadcast, publicly distributed (including internet) or designed to sell or endorse something. You also need a release if the video could be seen as invading the person’s privacy or defaming them in some way. Make sure your release form has contact information and anything you need for your film credits. Include an actor release clause in your crew contracts because they may appear in being the scenes pictures and footage. When filming in public spaces where numerous people may be entering and exiting the frame, you can post signs to make people aware and to provide instructions what to do if they don’t want to be on camera. You don’t need a release from individuals who are not identifiable, and you may not need one if your use is in connection with a newsworthy event or the biography of a newsworthy individual.

Should you pay your talent and crew as independent contractors or employees?

It’s safest to pay individuals as employees, even if it means contracting with an independent payroll service, (there are a number who specialize in our industry). The primary exception is when you are contracting with a separate legal entity.

Do you need to protect cast and crew from discrimination and sexual harassment?

It’s no secret that the film industry is a minefield for discrimination charges. But if you’re not working on a big movie production, do you still need to worry? In the wake of #MeToo, New York and California have enacted significant legislation. For example, all NY employers must have an anti-sexual harassment policy and training program. Even if you’re in a different state, if you have employees or use independent contractors often, watch out for these issues.

Are any of the cast or crew union members?

If so, those unions will have specialized requirements and agreements. Some unions offer easier terms to low-budget films.

Will any legal minors (usually under 18) be involved?

If so, you’ll need parental/guardian permission on release forms and contracts. You should also be aware of applicable child labor laws, work permit requirements and whether a parent is required to be with the child. Be sure to provide adequate breaks and meals. On a long shoot, you also may need a studio teacher.

Will your film include any animal actors?

Federal and state laws require that they be treated humanely without neglect or inflicting pain. Avoid endangered species. Some states also prohibit filming intentional cruelty or killing. Public relations issues are also possible, and the American Humane Association even offers a “No Animals Were Harmed” certification.

Will you be using a drone?

For commercial applications, the operator needs to be FAA certified and have commercial drone insurance. Flying over people requires a waiver. Using a drone may trigger requirements for a film permit.

Will your video involve investigative reporting; is it designed to reveal an underrepresented viewpoint; or could it be used in a legal proceeding?

If so, you may encounter a number of journalistic, legal and ethical issues.

Production Issues

Film production set

Having worked through the above issues, with any needed financing, contracts, script, permits and releases in hand, you are ready to move forward with into production, which is what most people think of as filmmaking. In production, your film or video is shot, requiring at least some crew and often cast. Be sure to get any needed releases signed before you begin each shoot.

Always keep safety in mind.

If you are filming a simple event, you may primarily need to worry about appropriate dressing and footwear, taping down cables and following fire code regulations in the theater. On a bigger production, do an assessment, identifying potential hazards like special rigs; vehicles; power lines and lighting; drones; stunts; fire, explosives and weapons; weather; ladders and heights; etc. Create a plan to eliminate hazards and risks that have some likelihood of causing injury or illness. Communicate the importance of safety and the plan to cast and crew.

Is there background music playing?

Turn it off if possible. Otherwise, develop a plan to replace the ambient sound or for how to get permission to use it.

Are copyrighted artwork, buildings, or trademarks visible in any of the shots?

If practical, get advance permission and possibly arrange for product placement payments. Avoid showing a trademarked or copyrighted container if you don’t have explicit permission. Don’t use any trademarked product in a dangerous or offensive manor. Documentaries have some flexibility in this area because of fair use. For example, clothing with logos is generally OK in documentaries. Video used for news purposes is even more flexible.

Post-Production

During this stage, the material is edited with music and effects added. Worst case, you may be dealing with music copyright issues and fall-out from problems and errors during pre-production and production. Be sure to follow through the terms of all contracts. Honor any confidentiality and publicity restrictions during marketing and promotions, and ensure your employees and agents do the same. Obtain and organize documentation, including releases and licenses.

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