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Copyright Questions for Documentary


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#1 Michael Koshkin

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Posted 29 October 2009 - 08:05 AM

I am planning a documentary that focuses on a product that flopped more than 20 years ago (produced by a still prominent, large manufacturer) and I have some questions about copyright and fair use. For starters, the film is not non-profit and would be targeted to go to festivals and seek distribution. The film celebrates the product; it is definitely not an expose or something that has any negative connotation about it.

So my copyright related questions/clarifications:

1. Technically, do I need permission from the manufacturer? (I plan to contact them soon but want to approach it in a way that won’t rub them the wrong way). What happens if they don’t give me permission and I do it anyway? I would like to interview someone from the company and plan to show them in a positive light.

2. There are a few filmmakers I’d like to interview and use tiny bits of their films. Do I need permission regardless of the length (say, it is only 10 seconds or so)? And if so, is this something to discuss with the director of the project? Or the studio that released it? Is it only TV where you can use little segments for free?

3. Any other copyright related things I should watch out for? I plan to get release forms from anyone I interview and to try not to record with music in the background to avoid that hassle.

I’ve been looking at the “Documentary Filmmaker’s Statement of Best Practices in Fair Use” and am still not sure where exactly I stand or if this only applies to non-profit, educational docs, or all:
http://www.centerfor...r_use_final.pdf

If I produced a non-profit organization and created the film under that, would any of this change? (And could I do this in retrospect? Say, begin shooting in a few months and then get the non-profit set up later in the year, but before completion?).

Thanks in advance for any advice. This is a very low budget project and I really don’t have money to hire a lawyer. And please forgive me if any of my questions are naïve. I didn’t go to film school. :unsure: I’m going to make this film regardless, but it would really help to get a better understanding about these things first and how I should approach some of these issues.
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#2 Jim Hyslop

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Posted 29 October 2009 - 04:24 PM

DISCLAIMER
I am not a lawyer. What follows is my expanding but still very incomplete understanding of a very complex topic. For proper advice and to properly protect yourself, you MUST consult a lawyer.

Most likely you will need permission. If you don't get permission, then one or both of these may happen:
  • some festivals will refuse to screen your film. The bigger and more important festivals (in other words, the ones you really want to get into) are the most likely to decline your submission if you cannot prove consent.
  • the company will sue you.

The first one is the killer - your film may fall squarely and totally within "fair use" provisions (in your opinion - see next paragraph), but the festivals aren't about to take that chance. They will want evidence that you have obtained permission to use the product and all clips in the film.

The problem is, determining whether or not something falls under the fair use provisions isn't a cut-and-dried proposition. Even an expert lawyer isn't going to give you a straight yes or no answer. Fair use decisions are determined on a case-by-case basis, as the result of lawsuits brought by the copyright holder. And even if you and your lawyer are both convinced that you are invoking fair use, if the jury agrees with the company's lawyers, then too bad for you. Unfortunately, many legal decisions are not based on "right" or "wrong" but rather on "which side's lawyer was more skillful at manipulating the jury's emotions?" And generally, the more expensive the lawyer, the more skillful they are. Who's gonna be able to afford the more expensive lawyer, you or the company?

The easiest path will be to get the company on-side with the project. Make sure your pitch to them is polished, well-presented and enthusiastic. Make sure you research why the product failed - that may play a key role in their decision, and may suggest the best angle to approach the company with. If it failed because of poor planning or execution on their part, they may want nothing to do with it. On the other hand, if it failed because of external factors beyond their control (e.g. a sudden economic downturn made it impractical, or it just faded away after a brief, glorious period, or the competition did something underhanded) then they may be more willing. Who knows - if they are enthusiastic enough, they may even be willing to help acquire permission to the film clips you want.

If you can't get their permission, it's likely going to be an uphill battle all the way, even with a lawyer's help to guide you through the minefield you'd be about to enter. I wouldn't try to pursue the project without the company's support, unless I was really passionate about the product. But then again, I'm not you! :=)

--
Jim
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#3 Hal Smith

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Posted 01 November 2009 - 10:45 AM

Set up the non-profit NOW. You don't want to give the IRS a reason to challenge the legitimacy of the stated purpose of the non-profit. Form it after the fact and they can interpret your action as an effort to avoid taxation. This was my advice from my tax accountant who is a CPA specializing in small businesses and non-profits.
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#4 Steve Wallace

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Posted 08 November 2009 - 05:24 PM

note: I am NOT a Lawyer, but I have signed a distribution deal before. So my advice lies somewhere between a hobo in the gutter and a quasi reputable source. The following is not meant as legal council. Always consult with an entertainment attorney before making any business decisions based on legal matters.

If you are seeking a traditional distribution deal, it is most likely considered a for-profit piece. Some exceptions are using a 501©(3) fiscal sponsor (ifp.org, documentary.org etc...), and going under their umbrella of non-profit, for your project.

Also, if you are looking for a distribution deal, you are going to need both Errors and Omissions Insurance (E&O), and a chain of title document. You most likely will not be able to obtain in E&O without consent from "said company" , and if you are using other's clips you will need permission laid out for your chain of title document.
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