Documentary Clearance Counsel

If you have a largely completed documentary film and have questions about whether you have retained all copyright in your film and actually hold the rights to screen the film at festivals or for wider distribution, then the firm’s clearance counsel services may be right for you. As clearance counsel, Amy advises independent producers on what rights and clearances they need for their documentary or docu-series projects to minimize their exposure to potential litigation.

Knowing what rights and clearances are needed in an audiovisual project is much more complicated than one might think. Although documentary producers have more lee-way than narrative filmmakers to incorporate third party materials into their films without permission, they do not have free rein and must be prepared to defend the unlicensed use of someone else’s photo, music, brand, artwork, audio/video clips, etc. against potentially legitimate infringement claims.

Best practices for documentary filmmakers would therefore include creating a rights and clearance log in which all third party material that is incorporated in the project, including any incidentally captured material such as music playing on the radio in the background of an interview segment, is carefully logged and analyzed before the project is locked. Similarly, filmmakers are wise to have any personal releases, license agreements, crew deals, and other written agreements relating to the project reviewed prior to picture lock to ensure that the filmmaker has a clean chain of title and has complied with any contractual restrictions/obligations. After all, making changes to content or credits after mixing and mastering is almost always prohibitively expensive.

Our minimum retainer for documentary clearance counsel is $2,500, which covers up to 10 hours of clearance work (as defined in the legal representation agreement). Additional time for clearance work or services outside the scope of work may be billed at Amy’s current hourly rate. Please allow at least 10 business days for the review.

To most effectively and efficiently help with obtaining errors + omissions (e+o) insurance, the firm will need to have access to the following, with all documents organized in a shared online folder such as Dropbox or Box:

  • link to view cut of film (e.g., Vimeo link with password); this is particularly important when doing fair use analysis because it is necessary to see the context of the use to render an opinion
  • copies of personal and location releases, if any (if everyone signed the exact same form without alteration, just one copy of the form is fine)
  • copies of crew agreements
  • copies of any licenses/releases for your use of third party materials (e.g., for photos, archival footage, newspaper clippings, etc.)
  • rights & clearances clip log for your film that has a list of third-party materials (e.g., song, photo, video, article) with the time stamp and whether you have a written agreement/release in place; this will save Amy a lot of time (and, thus, legal fees). You can see a sample rights and clearance log from Occidental College here.
    *If you are worried about particular elements of your film (e.g., interviewed someone who refused to sign a release), then please let us know so we can focus more attention on those specific segments.

*Note: If you are only looking for a fair use opinion letter (as opposed to listing Amy on your e+o application as the production attorney), then the firm can conduct a more limited review. The time needed is typically 3-5 hours, depending on the length of the film and the number of uncleared materials and sources that you have used. Minimum fee of $1,500 applies to fair use analysis requiring a written legal opinion.

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