When you start any business, you should know the legalities of the business. It is difficult enough to set up a business with suitable equipment, personnel, infrastructure, marketing, and customers or clients without having to worry about legal liabilities. The same is true in the video production field. This article describes all of the considerations when it comes to video production and the law.

Fair use

According to §107 of the Copyright Act, “Fair Use” of copyrighted material is not an infringement, even when the copyright holder does not grant a license to use the material.  The would-be infringer, though, can copy the material only for the purposes of criticism, comment, news reporting, teaching, scholarship, or research.  In order to determine whether the use of copyrighted material is a fair use, the court considers four factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the value of the copyrighted work. 

You may want to ensure that nobody uses your work without permission, though keeping in mind a possible fair use defense; similarly, if you want to use snippets of other people’s videos without obtaining a license, do it in a way that invokes fair use.

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Starting a business

Let’s start the process by setting up your new business. Selecting the right business structure for your business is one of the most important decisions you have to make. A proper business structure will help you maximize profits, minimize risk and get all the boring stuff (taxes, paperwork, fees) in line. 

An LLC, short for Limited Liability Company, is “an unincorporated business organization of one or more persons who have limited liability for the contractual obligations and other liabilities of the business.” In other words, it’s a business structure that acts like a corporation in that it limits the liability of its owners. If something goes awry, the owners of the business won’t be personally liable.

While legal liability is probably the most commonly cited benefit of a creating an LLC, taxes comes in a close second. LLC owners can apply for an Employer Identification Number (EIN) from the IRS that would allow them to be taxed as a corporation. The benefit here is that instead of your business earnings being taxed at the personal income tax level, you can be taxed at a lower, corporate tax level and at the same time write off business expenses. This last part is important since business expenses can including things like your camera, laptop and editing software, travel costs, and even the that spare bedroom you use exclusively as your editing studio.

Operating your business as an LLC does have some downsides. For example, you must ensure that your business records are kept separate from your personal records, including financial records as well as things like meeting minutes, if you have a partner and hold official meetings. Additionally, creating an LLC is more expensive than creating a Sole Proprietorship or Partnership since there is a filing fee and annual fee that differs from state to state.

Forming an LLC doesn’t require you to be a lawyer – with a little research about your state’s LLC procedure and the right documents and information, you can file all the paperwork on your own.

Production insurance

You may want to investigate three types of production insurance. In the order of importance and least cost first, a general liability insurance policy protects you against any mishaps by people who are on your set or location. The common sorts of mishaps include injury to visitors due to your or their negligence. For example, lights can come crashing down or cables can be tripped over, injuring actors or crew or visitors and, of course, damaging your equipment. Accordingly, you may wish to obtain a business owner’s policy (BOP) to cover those events.

Along with the BOP often comes a worker’s compensation policy to cover your employees, if any. Depending on the state in which you do business, you may also be required to have a disability policy, which protects your employees and is a requirement at this time in California, New York, New Jersey, Rhode Island, and Hawaii.

Another policy that is more expensive and less popular is a professional liability policy that covers errors and omissions. This policy protects you against any legal action that can be brought against you by dissatisfied clients (“Oh, you didn’t mention that you wanted the video with sound!”) or by others who appear in your final work. 

Finally, much more rarely, you may wish to investigate an insurance policy that protects you against infringement of intellectual property, such as copyright infringement and trademark infringement. There may be no need for the infringement policy if you include an indemnification clause for such legal actions in your agreement with your customer. The last two types of insurance may be combinable; talk to your friendly insurance agent for details and costs.

Release forms

If you’re going to be recording people, make sure they sign a release form. This basic but crucial step gives you permission to use footage of that person, control over what you can ultimately do with the final product, and peace of mind that you’re protected from unwanted lawsuits down the road.

To film a motion picture, you should obtain a photo release for all people and objects in your film. Here is a four-step checklist to determine if a photo release is needed. 

First, ask yourself, “Can I identify the subject as a unique person/thing?” If not, logically there is no need for a photo release

 With individuals, the release is called a model release. If your actors are clearly identifiable subjects, they should sign model releases, but people walking along the streets, whose faces the camera never captures, need not.   

Next, “How will this photo be used?” If your video is to entertain the public, you will need photo releases.    

Next, “Is the video to be taped on public or private premises?” The owners of private areas, such as homes and corporate buildings, generally have more rights than do caretakers of public settings, such as streets, museums, and zoos. In other words, taping on public property may not require a photo release, but taping on private property generally does.

Lastly, “Will there be compensation?” If there is no compensation and a court case arises in certain states (e.g., California). the contract is not actually a contract; it is called a “gratuitous promise.” Be safe and pay each of your actors at least a dollar.

Contracts

If you’re like most freelancers or small business owners, you probably don’t have the time or, frankly, the desire to deal with something as mundane as a contract. And for the most part, you don’t have to. Drafting a video production contract from scratch is mostly unnecessary since the Internet has dozens of websites that provide decent templates for different situations and across industries.

A contract is “an agreement between private parties creating mutual obligations enforceable by law.” Usually, this plays out as a promise that you’ll do some specific work for someone, that someone will pay you for your work, and that both of you are legally bound to uphold your side of the bargain.

A copyright, strictly speaking, is “the right to copy a work, specifically, a property right in an original work of authorship (including a literary, musical, dramatic, or other work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.” 

Copyright protection, however, does not cover your ideas, concepts, procedures, processes or discoveries.  Nor does it extend protection to names, titles, short phrases, slogans or symbols, among other things.  Some of these forms of expression, however, may be protectable under either patent or trademark law, which you may apply for along with copyright protection to protect certain works in their entirety. 

An example of this could be a commercial you created and filmed for a local store. You can copyright the lyrics and score of the background jingle, while the store’s name and logo may be protected under trademark law.

Licensing

As a videographer, there are different types of licenses available to you. You likely need a synchronization license, which is required when making and distributing videos with music. You can get a license for music from the publisher of the work. In addition to the synchronization license, you need a master use license to use an old song in a new video. You can do this by contacting the record label. If you want to publish your video to a website, you also need an internet license. Understanding how licensing works is essential for anyone in the video business.

Freebooting

Freebooting refers to when your video is used or uploaded online without your permission. The first thing we recommend is registering your videos to the Copyright Office before uploading them to YouTube or any other platform. From there, the next step is to inform the person who took your video without permission that you will take action if they don’t take it down. Remind them that they are committing copyright infringement.

You can also request this person pay you a license fee to use your content.

Errors and ommisions

Just like everyone else, videographers make mistakes and sometimes create videos with inaccurate information. While you can be wrong about something and still put it out into the world, you may still want to cover your bases legally. Errors and omissions insurance protects videographers against negligence claims and is an important part of video production and the law.

Public domain

Here’s a rule of thumb that may come in handy: any work that was created before 1926 is now in the public domain, regardless of whether the registration was ever renewed. That’s the magic year. All works created before 1926 can be used without permission by the creator of those works. That would include the music of Brahms, the poetry of Shelley, the plays of Shakespeare, and the paintings of Rembrandt. Be careful, though, that you don’t use a modern recording of a Brahms musical piece, since that particular recording is most likely still under copyright, even though the rights to the underlying musical work are in the public domain.

When it comes to video production and the law, there are exceptions to copyright law. For example, under the fair use clause of the Copyright Act, in certain situations, you may copy-protected works without permission. See 17 U.S.C. §107. Also, works created by the federal government cannot be protected by copyright. We are allowed to copy part or all of government publications, photographs, videos, soundtracks, etc. That means that you can copy some or all of productions of the Department of Defense, NASA, Congress, the FBI, and the like without obtaining permission.

Final thoughts

Now that you have a better understanding of video production and the law, you are ready to embark upon new adventures while keeping your best legal interests in mind.

Mark Levy
Mark Levy has been contributing articles to Videomaker magazine since 1988. He is past president of the Amateur Movie Makers Association and has won awards internationally for his short films and videos. He practices intellectual property law (patents, trademarks, and copyrights) in Evergreen, Colorado. Roman Zelichenko is Founder & CEO @ LaborLess. Entrepreneur. Lawyer. Writer. Improviser. Climber. Snowboarder. Eater. Traveler.

1 COMMENT

  1. Good article, but apparently written 3 years ago and now out of date in two ways. Now, anything written by 1926 is in the public domain, not just to 1923. And a court has not ruled that persons in public places do not have a reasonable expectation of privacy. Therefore, even if they are recognizable in the background of the film, it can be used without their permission.