Permits and Permission: Keeping Your Videos on the Straight and Narrow

Grappling with copyright issues may seem like a real pain, but it's a pin prick compared with the raw agony of an unexpected lawsuit. The truth is, whenever you shoulder your camcorder and venture into the real world, it's surprisingly easy to find yourself treading on the rights of other artists, businesses, or private citizens. Can you really afford to leave your footprints where they don't belong?

As an independent videomaker, it's up to you to fully understand the legal issues that can have a profound effect on your work.

Copyright Primer
The copyright laws of this country exist to protect the rights of writers and artists--just like you--from unauthorized use of their work. Current law is based on the United States Copyright Act of 1976, which has been amended a number of times, usually to increase protections for copyright holders.

"Copyright law can be viewed as serving a professional policing function," explains Edward Hearn, a San Jose, CA-based attorney and co-author of Musicians' Guide to Copyright. "It's really just a matter of giving other artists the respect you would want them to give you."

To use the copyrighted works of other artists, you must get permission in the form of licensing agreements. The scope of that permission can be limited or very broad. The owner of the rights to the work may charge you a hefty fee or nothing at all.

"I think you'll find that most people, unless they are offended by the use to which you plan to put their material, are happy to grant you the license you need," says Hearn. "But if you don't ask first, you're opening a real can of worms."

And slimy worms they are, too. Damages for copyright infringement range from as low as $100 for an innocent mistake with no attendant malice to as high as $100,000 for willful infringement. While the plaintiffs (the artists) bear the responsibility of showing the extent of their damages (called actual damages), they may instead ask for "statutory" damages, which are damages they simply claim.

The cost of hiring the lawyers to handle this messy business could easily exceed any damages you might have to pay. And if the plaintiffs receive an award, you may also have to pay their lawyers. The good news: that particular situation is now a two-way street.

When Sol Zant unsuccessfully sued singer/songwriter John Fogerty (formerly of Credence Clearwater Revival), claiming his comeback bid in the mid-80s constituted infringement on his ownership of Fogerty's "sound," the Supreme Court held that if a defendant successfully withstood such a claim, he could pursue an award of attorneys' fees, both of which Fogerty did. Many hailed the decision as a deterrent to harassment suits.

Hearn says you do not actually have to register artistic works to enjoy protection under the Copyright Act. Copyright law covers any work as of the time it becomes fixed in a tangible medium of expression. For example, if you sit down at the piano and write a song, but you just keep it in your head, it's not protected. But once you jot it down on paper, record it, or record a performance of it, the law applies.

However, you must register your work in order to sue for copyright infringement. In other words, if you use the Credence song Proud Mary in your video production without getting permission, John Fogerty cannot sue you unless he has copyrighted his music. To get the benefits of the suit, he must have registered the work before any alleged infringement.

The most common license granted to film and videomakers is a "synchronization license," because you usually synchronize the copyrighted work within your own production.

Licensing Fees
There are no set licensing fees for the use of copyrighted material; it's all up to the owner of the copyright--and your negotiating skills. How much you pay depends on a number of factors: How much of the work are you using? Will you feature it? Is it in the background? How well-known is it? How well-known are you? Will you use it in one medium only, or in trailers and print advertising? Will you broadcast it? If so, will it air on a network, cable, satellite, or interactive transmissions? All of these factors and more may influence the price. For a ballpark figure, Hearn says small-budget video producers seeking limited-use rights might expect to pay around $250 to $300.

The scope of the rights you are buying is a crucial part of your agreement and should be handled with care, Hearn says. This varies widely, from limited-use rights to agreements that allow for worldwide distribution.

"The more layers of additional exploitation you seek for your project as a video producer," he says, "the more you can expect to pay."

Many producers start this process by getting a series of quotes from the artist whose work they wish to use. They find out how much the artist wants for each layer of use; how much for various combinations of use; and how much if they pay for it all up front, rather than over time.

"Once they have that schematic," Hearn says, "they can better decide whether or not to use the material. Most producers today try to get as broad a swath of clearance rights as possible to avoid the need to go back and re-negotiate later. It usually ends up being cheaper to pay the greater amount than having to go back and re-edit."

Some producers opt for a schedule of payments that allows them to see just how far the production will go before they dip too deeply into their bank accounts. But these kinds of payment schedules also have expiration dates. Hearn says three to five years is typical.

Who's Right Is It, Anyway?
A Copyright is a "divisible property right." That means one person could be the owner of a copyright in one jurisdiction, say, the U.S., while another person controls the copyright in other territories, such as Great Britain and Europe. Whenever you buy the rights to use a copyrighted work from someone, it is up to you to make sure that person owns those rights in the first place.

How do you do that?

"People typically rely on the representation of the person who is giving permission," says Hearn. "And most of the time, that's enough. If you are a professional dealing with another professional, short of somebody making an honest mistake, you are fairly safe, especially if you are talking with the person who created the work in the first place. But honest mistakes do happen. And so do outright misrepresentations."

One way to protect yourself from mistakes and misrepresentations is to require the person granting you the rights to warrant that he or she has full rights and authority to do so and to indemnify you against claims. Make sure you state this clearly in your agreement. It won't immunize you against claims, but it will show your good intentions--and you'll have someone to sic your own lawyers on, if it comes to that.

The Fair Use Doctrine
There is an "ephemeral exception" to the Copyright Act that allows journalists, critics and teachers to quote from copyrighted materials or make reference to them in the context of their own work. It's called the fair use doctrine (section 107 of the copyright law), and it evolved out of case law in the courts. Thus, "fair use" has become a defense against many infringement claims.

For example: a teacher might copy lyrics from a Bob Dylan song to use in a literary course on the poetry of contemporary music and argue that this is fair use. But if the teacher made multiple copies of many lyrics to avoid buying sheet music, that argument might not hold up. Rolling Stone magazine may print CD reviews and quote lyrics without violating copyright laws. It couldn't, however, reprint the sheet music in its entirety.

But, Hearn warns, while the fair use doctrine is a defense, it is not a guarantee against infringement claims. "Unfortunately," says Hearn, "this area isn't clear. It's always a risk to count on a fair use ruling."

These are murky waters, indeed. Video documentarians, for example, might logically argue that capturing certain copyrighted images in their works is fair use. But that argument won't always wash--especially if you intend to market your work commercially.

According to Griff Morris, program coordinator for California Lawyers for the Arts (a nonprofit group that provides legal services and information for the arts community of the San Francisco Bay area), the courts most often look at four factors when deciding a fair use claim: the purpose and character of the use, the nature of the copyrighted work, the amount and proportion used in relation to the work as a whole, and the affect of the use on the market value of the work.

For example: photographer Art Rogers' copyrighted photo, called "Puppies," was the subject of a sculpture created by artist Jeff Koons, called "String of Puppies." In a recent ruling, the Second Circuit Court held that "String of Puppies" was not a fair use, because it "took the essence of Rogers' work nearly in toto," was primarily commercial, and had adversely affected the marketplace for Rogers' work.

Yet in another highly controversial decision, the Supreme Court ruled that rap artist Luke Skywalker's blatant use of Roy Orbison's "Pretty Woman" was fair use because it fell under the definition of "parody." Under that definition, the work in question must be the subject of the parody, which the court ruled it was this case.

"The publishing community was jumping up an down about that one," says Hearn. "It's ironic in a way, since it's really all about protecting the rights of another creative person."

A Face In The Crowd
You can copyright a song, a script, or a photograph, but can you copyright your face? Not usually, but that doesn't mean you can use anyone's face in your video anytime you please. Before you use someone's mug in your movie--especially an amateur's--it's a good idea to take a look at how privacy laws can affect your work.

"Privacy laws," explains San Francisco attorney Jeffrey Berchenko, "are different from copyright laws. You don't own a copyright to your face or your home."

According to Berchenko, who also serves on the board of directors for California Lawyers for the Arts, each of us has a certain reasonable "expectation of privacy." If you lean out an upstairs window of your home in your brassiere to quickly call your kids in to lunch, it may be a neighborhood scandal, but you shouldn't have to worry about seeing yourself in your undies on Suddenly Hidden Video.

But that doesn't mean your image is protected every time you walk down the street. "You're in a public place," Berchenko says, "someone takes your picture, that's probably legitimate."

But, he says, there are exceptions. If, for example, the line at the local soup kitchen were spilling out onto the street, you might assume that a shot of the down-and-outers waiting there was safe. But some of those people might find it very embarrassing to be caught in the soup line and a judge could rule it an invasion of privacy.

"It's a gray area," says Berchenko. "There are rulings that say that people's expectation of privacy is diminished when they are walking down the street. But it all depends."

Oh good; another gray area.

What about shooting outlandish public behavior, say, during some notorious event like San Francisco's Bay to Breakers race, in which people dress in wild costumes and even go naked?

"There are two counter arguments here," says Berchenko, "and there are no clear rulings. On the one hand, they were the ones who paraded down the street that way; on the other hand, they may never have intended to be seen internationally with no clothes on."

So what's a videomaker to do?

"There are two types of analysis I do as an attorney in these situations," says Berchenko. "One is when someone has been sued for some past event. In that case I try to make all the best arguments I can that there is no breach of privacy. The other is when someone comes to me for prospective advice. In the latter case, I'm much more conservative. The edges of privacy law are ill-defined, so the conservative advice is, don't walk along the edge."

None of these rules are cut and dried. Some experts say that if you shoot someone in a public place, doing normal things, it's safe to use that image any way you want. Others suggest posting signs around your shoot, warning passersby that you might capture their image and that staying within the line-of-camera means you give permission to use that image.

"My advice," says Berchenko, "is: when in doubt, get a release."

Please Release Me
There are two basic types of release agreements you will want to know about: the personal release and the property release. (See sidebar for an example of the former.)

You can type up your own releases or buy them pre-printed. One well-known source for these types of forms, as well as releases for minors, group releases, and many other entertainment and production forms, is Enterprise Printers and Stationers in Hollywood, CA. Prices for 50-sheet pads of these forms are around $6.00, and the company fills large and small orders from film and videomakers around the country. (Call [800] 896-4444 for a catalog.)

Many states have specific laws on the books about commercial use of a person's image. Generally speaking, if you use a person's recognizable name, voice or likeness to advertise a product or for some other commercial use, you must have their permission in the form of a signed release. This can even include your on-camera talent. And remember: if you're planning to distribute your video for a fee, collect advertising revenues for your show, or make any kind of profit on your work, it's commercial. Even corporate videomakers make "commercial use" of their productions, even if the video never leaves the company campus.

On Location
The courts have traditionally ruled that videomakers have the right to shoot public locations as long as their activities are not a nuisance. But that says nothing about how individual property owners might react when they recognize their homes and stores in your production.

When shooting in public, it's a good idea to secure property releases from local homeowners and businesses, especially if their homes or storefronts are going to be recognizable in the shot. Berchenko says your risk here often depends on the content of your video.

"Suppose you just wanted to take shots of suburban architecture," he says. "You probably wouldn't need a release for that. But if your video deals at all with controversial themes, things could get sticky."

Say your main character is a drug addict, and we see him walking down a residential street. Local homeowners might think you are implying that this is a neighborhood made up of addicts. Now, they might claim, you've hurt property values.

"I'm not saying such a claim would work," he says, "but I've seen it happen."

These kinds of nuisance claims may not result in any significant award of damages, but they are annoying and time consuming to deal with; your risk of ever having to face one is often proportional to your exposure.

"When your low-budget short wins an Academy Award," Berchenko says, "that's when these people start popping out of the woodwork."

A little extra leg work and a few bucks spread around the neighborhood can buy you buy you piece of mind. (Yes, some mercenary souls may ask you for some cash before they'll sign; they don't have to agree to anything.)

"It's safer to avoid claims in the first place by getting releases and, when necessary, compensating people," he says. "A few bucks spread around here and there can really cut down on the aspirin bills. Remember: if you get sued, even if you win the case, you've lost."

Government Film Commissions
Now for the good news: while you're on your own when it comes to copyright and personal privacy issues (that is, you and your lawyer), you don't have to trudge through the permit jungle without a savvy guide. Every state in this country now has a film commission, and almost every major city has a film office of some kind (235 at last count).

The primary purpose of those organizations is to encourage and facilitate commercial film, television, and video production in their respective regions. And though you may be kicking out some cash for special insurance, permits, and local police support, the commissions themselves usually charge no fees.

Most film commissions will assist you with a number of production preparation chores, including location selection and help securing local permits. Many have location libraries and provide one-stop-shopping for local permits.

Leigh Von der Esch, president of the Association of Film Commissioners International and executive director of the Utah Film Commission, says small-budget videomakers shouldn't be shy about approaching film commissions. And they should expect the same professional treatment afforded big-budget film producers.

"We treat videomakers with the same sense of urgency and service as major motion picture producers," she says. "It may sound corny, but our motto is, 'We treat everybody like Steven Spielberg.' That's the way we do it here and I don't think we're much different from anywhere else."

When shooting in small towns or rural areas with no film commissions, Von der Esch suggests first contacting the office of the state commission. The staff there will either handle your production needs themselves or direct you to the appropriate local agencies, typically the mayor's office, chamber of commerce, county economic development director, or county or regional travel council director.

"Let the state be your guide," she says. "Those of us who cover large jurisdictions bridge the gap quite well."

When exactly do you need to get a permit to shoot?

"If someone's out there with a single camcorder and they're not stopping traffic," says Kathleen Milnes, vice president of public affairs for the Alliance of Motion Picture and T.V. Producers, "they might not have any trouble. It depends on where they are, how much of the public right of way they're interfering with, and how film savvy the community is."

There is no argument that once you start mucking around in the public's way with a production crew, the city fathers and mothers will want to keep track of you. The issue is primarily one of public safety. Whenever you're on the street, with cables running from a generator and vehicles parked everywhere, you are encroaching on the public right of way.

"Every community that is no longer friendly to film and videomaking," says Milnes, "every homeowner who says `Never again!' developed that attitude because somebody burned them. It is the obligation of every person in this business to think about the fact that to the world, they represent the entire industry. We all need to act responsibly."

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Individual Release Agreement

The undersigned enters into this Agreement with ___________ Productions ("Producer"). I have been informed and understand that Producer is producing a videotape program and that my name, likeness, image, voice, appearance, and performance is being recorded and made a part of that production ("Product").

1. I grant Producer and its designees the right to use my name, likeness, image, voice, appearance, and performance as embodied in the Product whether recorded on or transferred to videotape, film, slides, photographs, audio tapes, or other media, now known or later developed. This grant includes without limitation the right to edit, mix or duplicate and to use or re-use the Product in whole or part as Producer may elect. Producer or its designee shall have complete ownership of the Product in which I appear, including copyright interests, and I acknowledge that I have no interest or ownership in the Product or its copyright.
2. I also grant Producer and its designees the right to broadcast, exhibit, market, sell, and otherwise distribute the Product, either in whole or in parts, and either alone or with other products, for commercial or non-commercial television or theater, closed-circuit exhibition, home video distribution or any other purpose that Producer or its designees in their sole discretion may determine. This grant includes the right to use the Product for promoting or publicizing any of the uses.
3. I confirm that I have the right to enter into this Agreement, that I am not restricted by any commitments to third parties, and that Producer has financial commitment or obligations to me as a result of this Agreement. I hereby give all clearances, copyright and otherwise, for the use of my name, likeness, image voice, appearance and performance embodied in the Product. I expressly release and indemnify Producer and its officers, employees, agents and designees from any and all claims known and unknown arising out of or in any way connected with the above granted uses and representations. The rights granted Producer herein are perpetual and worldwide.
4. In consideration of all of the above, I hereby acknowledge receipt of reasonable and fair consideration from Producer.

I have read the foregoing and understand its terms and stipulations and agree to all of them:

____________________________ Date _________.