Docudrama: Navigating the Legal Issues of Documentary Filmmaking

Save yourself the hassle and court fees by following these guidelines before, during, and after filming. 

For documentarians, the only thing more complicated than making your film could be the legal blowback after it’s released. Just ask director Lauren Greenfield. While Greenfield’s film, The Queen of Versailles, was nabbing the 2012 Directing Award for U.S. documentaries at the Sundance Film Festival, the subject of her film launched a defamation suit against her, claiming that the film is “a staged theatrical production, albeit using nonprofessionals in the starring roles,” according to the New York Times. The two stayed in litigation for more than a year before a court ruled in favor of Greenfield.

Several documentarians including Crude director Joe Berlinger, Tabloid director Errol Morris, and Catfish directors Ariel Schulman and Henry Joost have all been slapped with lawsuits after their films were released. But never fear! There are steps you can take before, during, and after the filming process to sidestep a legal battle. Here’s how to stay in film festivals and out of court.

Before Filming: Ask Permission, Not Forgiveness

Before delving into the meat of your interviews, you’ll need permission, both from the people you’re featuring and the places you’re filming, says entertainment attorney Michael C. Donaldson with Donaldson and Callif law offices in Beverly Hills and co-author of The American Bar Association’s Legal Guide to Independent Filmmaking. That means having everyone featured in the film sign a succinct and easy to understand release like this one, which was used to secure interviews for Sasha Baren Cohen’s mockumentary, Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan. If minors are involved in filming, you’ll need a parent or legal guardian to sign the release.

Better than a written release often is somebody saying, ‘We’re about to start the interview. Are you ok with it?’” says Donaldson. “Get it on camera. Turn the camera on before you have that conversation … give the date and time.”

There are some cases when a release may not be required, though they’re always a good idea just in case. If your documentary is strictly for informational purposes—that is, it was created for an editorial outlet such as a newspaper or online publication and isn’t intended for commercial sale—and the way you’re using the subject isn’t defamatory, it’s possible to film without using releases, reports the Stanford University Copyright and Fair Use site.

Just because you may be able to get away with filming without permission doesn’t mean you should rely on it, says Suzan Beraza, director of the 2010 documentary Bag It, a chronicle of the growth in plastic use, and the 2013 film Uranium Drive-In, which explores nuclear energy. Forgetting to bring releases is one of the biggest mistakes first-time filmmakers make she says. “It’s always much harder to get those kinds of things after the fact.”

You’ll also need location releases for the places where you’re filming, especially if they’re considered private property, and permits if necessary. Keep an eye on the background too. Any artwork, logos, or recognizable images that fall in the background of your film could be copyrighted material and raise questions about fair use after the film’s release.

Uranium Drive-In Trailer 2 from Suzan Beraza on Vimeo.

During Filming: Check the Facts

One crucial way to sidestep legal purgatory is to have an air-tight fact-checking process that includes tracing all information you use back to the original source and keeping detailed records of where each individual fact used in your film came from and your process for verifying it. While it’s fine to find information through the web, the only way you can fully verify it is by tracking back to the original source, says Suzan Beraza.

It’s kind of like playing telephone where by the time [information] goes through several different versions on the Internet, it can be pretty changed by the time you read it,” says Beraza. “If we can’t find the original, then we make sure that we get many multiple sites that say the same thing.”

Jon Garon, director of the NKU Chase Law + Informatics Institute at Northern Kentucky University and author of The Independent Filmmaker’s Law and Business Guide, says that documentary filmmakers should study up on the fact-checking processes that reporters and journalists use. 

Part of that is the same kind of multiple source identification, keeping footage so that if material is edited they can show that it wasn’t edited out of context, and really treating the work process much like a journalist so there’s evidence of accuracy if issues come up down the road,” he explains.

Multiple sourcing can be especially difficult, Garon says. If an interviewee provides a fact or story for your film, you’ll need to verify those facts with multiple other people.

Make clear if you only have a single source that you do only have a single source and so the audience is aware of the possible issues that might have as well,” Garon adds.

Keeping your fact-checking organized counts too. Should an individual or organization bring a libel suit to your door, having that information ready and organized can squash a potential suit before it starts.

While filming, you may also want to nab some errors and omissions insurance, though many filmmakers wait until filming is complete to apply. Designed to protect filmmakers against claims of negligence or legal wrongdoing, errors and omissions insurance provides coverage against anything from defamation to privacy and intellectual property issues to copyright infringement.

Having E and O insurance is a huge sigh of relief,” Beraza adds. “So when you finally go to release the film, at least you know that if someone does come after you, you’re not going to lose your home, your office.”

To obtain errors and omissions insurance—known as E and O in the industry—you’ll need to present an insurance broker with a release for everyone shown on camera, location consents, approvals and cue sheets for each song used, fact-checking documentation, and information on each copyrighted work used in your film says Garon. Donaldson adds that if there are places where fair use may be questioned or people who are featured who have not signed a release, you may also need a clearance letter from an attorney who specializes in such matters.

Most documentary films come in at a little over $5,000 for the [errors and omissions] policy premium. If there are special risks, it drifts upwards,” he adds.

Many filmmakers get errors and omissions insurance after filming is done and in some cases a distribution company may pay for it, but buying early rather than late can help ensure that you’re protected throughout the duration of your project, Donaldson says, particularly if your project targets a person or industry who’s likely to sue.

Once you receive a cease and desist letter, it is virtually impossible to obtain coverage for a claim from the send of the letter,” Donaldson says. “It is like a pre-existing condition in medical insurance.”

After Filming: Copyright and Counsel

Once your film has wrapped, you’ll need to make sure that none of your material violates fair use protections, says Julie Ahrens, director of copyright and fair use for the Stanford Law School’s Center for Internet and Society. Fair use is “the ability to use copyrighted material without asking for permission or without getting permission,” she says. “For filmmakers, seeking out who is the copyright owner of all of the different material that they might want to use can be extremely burdensome and sometimes impossible.”

According to American University’s Center for Social Media, there are four basic contexts when documentarians can use copyrighted material without obtaining permission ahead of time. For example, filmmakers are allowed to use copyrighted work if the work is being used as part of a critique, including both serious critiques and parodies, provided that they don’t use so much of the material that “it ceases to function as critique and becomes, instead, a way of satisfying the audience’s taste for the thing (or the kind of thing) critiqued.” Filmmakers can also freely quote copyrighted material to illustrate an argument if they attribute the quote either on screen or in the final credits and only use the minimum quotation necessary to make their point. Fair use also covers documentary filmmakers if they incidentally catch copyrighted material while filming something else, though they should still provide attribution, and if they’re using a limited amount of copyrighted material in a historical sequence. The full guide to best practices in fair use is available right here.

Even with a guide, there’s still a lot of grey area when it comes to fair use. Ahrens says that music copyrighting oftentimes poses a particularly difficult challenge to filmmakers “Because the music and the use of sound recordings involves more than one copyright. You have the copyright in the sound recording, you have the copyright in the composition, etc., so you have a couple of layers to think about.”

Bag It Intro from Suzan Beraza on Vimeo.

Having a thorough knowledge of fair use can help you sidestep legal trouble during filming while an attorney who specializes in documentary film issues can answer grey area questions and prevent legal issues from brewing. For instance, Suzan Beraza credits her counsel with providing helpful suggestions to keep her team out of legal turmoil when she used a copyrighted song under the fair use clause in her film, Bag It.

It was a Beatles song and the lawyers said, ‘Hey just cut maybe three seconds off the tail end of it to make it seem less like you’re milking it’ and so we did that,” she says.

Beraza acknowledges that ponying up for insurance, legal counsel, and a ninja-precise fact-checking team can be a hefty financial burden for new and independent filmmakers, but skipping those crucial steps could result in even bigger fiscal ramifications, especially for filmmakers who tackle controversial subjects.

A sweet story about your aunt Bertha who’s 83 having a bridge party, things like that, it doesn’t really matter, but when you get into things where someone could come after you, that’s when you really, really just have to save some money in your budget to make sure that you’re protected,” she says.

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