A. Participant Releases
Where the film is based on an individual, or group of individuals, it is crucial to make it clear from the beginning that it is the film-maker who has the final say on the form and content of the film.
The subjects must be willing to participate on this basis. The key is that the subjects trust the filmmaker to portray them honestly and respectfully. Broach the subject of editorial control at the beginning of the project, so the project can be terminated without the waste of too much time if the subjects are not willing to accept this. A common compromise is to allow for consultation at the rough-cut stage.
Alternatively, if it will not be possible to obtain the consent of the subject, then plan the project on the basis that the film is going to be unauthorised, and possibly subject to complaint or even legal action on the part of the subject.
In drafting a participant release, the following terms should be considered:
- Description of the program
In describing the program, balance needs to be struck between, on the one hand providing sufficient detail to argue informed consent and avoid arguments that subjects have been misled, and on the other hand, not be so proscriptive that the film-maker’s ability to adapt and move with as the story does is not constrained.
- Right to make, edit and exploit recordings
Confirming this consent is, of course, the main purpose of the release. Include audio-only and photographs. Make it clear that the recordings can be edited at the producer’s sole discretion. Consider whether the right might be reserved to use the interviews in other programs as well. This may deter some participants, however clip or footage sales can be a valuable ancillary right, particularly if the person is well known.
- Licence for copyright materials, performances
Securing a licence for any photographs, archival footage, music or other copyright materials that may be supplied by the participant (subject to confirming that they do actually own copyright in such materials. Where the participant is performing, express consent to record and reproduce such performances, and moral rights waiver. Be forewarned about any 3rd party music that may require clearance where a performance by the subject is to be included.
- Promotional uses
The right to use the participant’s name, likeness and biography to promote the program, including in posters and packaging. Will the subject be required or invited to participate in promotional activities? For example, participation in festivals or media conferences? Will they receive payment for this? Is the subject entitled to use their participation in the project to promote their own good or services (eg a book?).
- Access and Exclusivity
An obligation on the part if the subject to make themselves available, and to facilitate access to any private property on which the producer may need to film. Is the client seeking any kind of exclusive access to the subject? Particularly if they are the sole focus of the project. This clause could provide that they will not be involved in any other production or co-operate with other producers – typically with an exception for news and current affairs.
A clear statement that all rights, including copyright, in the film will be owned by the producer who has the right to exploit in all media and formats – typically in perpetuity and throughout the world.
- Release and Remedies
Beyond simply giving consent, the subject releases the producer from legal claims arising out of the production, defamation in particular. The subject also waives the right to seek any injunction or otherwise interfere with the distribution of the production, accepting that damages will be a sufficient remedy.
Is the subject to receive payment or any other kind of compensation for their participation? Sometimes the subject may be engaged as a consultant, particularly if the producer requires assistance in ensuring that technical details are accurately depicted. Where the program builds the stature of the participant as a ‘celebrity’ there may be provisions relating to their ongoing involvement in further seasons and promotion of the series – possibly with the incentive of a profit share.
Generally however there is no consideration, other than in some cases provision of a copy of the production after release.
- Indigenous Cultural and Intellectual Property (ICIP) Rights
Where the participant is Indigenous, and/or the subject matter concerns Indigenous cultural matters, consider including reference to protocols that need to be followed, confirming that the subject is authorised to use the relevant ICIP, and what permissions must be sought, or restraints observed, in the event of the subject passing away.
If the subject is under 18 then provision should be made for their parent or guardian to sign the release. That person should confirm that they have authority to consent to the minor participating in the film, and that they regard participation as beneficial to the minor.
Are additional precautions necessary to ensure that effective consent is obtained where subjects are vulnerable for other reasons – eg. non-English speaking, medical condition, intoxication.
B. Access Agreements
There are many observational documentaries that take a ‘fly on the wall’ approach to examining the operations of the institutions and businesses that serve the public.
Documentary programs are often supported by, and made with the co-operation of, subject institutions, who see them as a valuable platform for promoting and educating viewers on the work of the institutions, and the issues they deal with.
However, the process of negotiating access agreements with the relevant institution can be complicated and time consuming. Even if the project has internal support – typically from the media or public affairs department – you may encounter inertia and risk aversion from other people within the structure.
The terms of the access agreement need to accommodate the policies, procedures and priorities of the institution, while allowing the producer sufficient access, freedom and discretion to produce a compelling program. It is also important to keep the demands of the broadcaster in mind, as the producer may sometimes be caught in the middle – trying to preserve their relationship with the subject institution while meeting the broadcasters demand to promote and broadcast a sensational program.
The following terms will need to be considered when drafting or reviewing an Access Agreement:
A key provision will be the extent and nature of the access granted to the producer to areas that are usually off-limits to the public, whether it is a court-room, an operating theatre or a police car. The provision needs to clearly identify the areas to which access is being granted, and the periods of access.
Typically, access is made subject to a number of conditions aimed at ensuring that the camera crew does not interfere with the operations of the relevant institution. A person is usually delegated to oversee the filming process, and producer and camera crew is obliged to follow their directions.
Camera placement and/or the size of crews may be specified, and the crew required to wear a badge or other identification. In some cases, the guidelines may also identify certain classes of person who may not be filmed (or whose images must be pixillated to avoid identification).
Consider asking that the subject entity provide assistance in securing any permissions to film on third party properties if necessary.
- Releases / consents
The agreement may specify a form of release that must be used for all interviewees appearing on the program. Consideration should be given to whether on-camera releases are acceptable as these are often easier to obtain in situations where people may be deterred by having to sign a legal document. Where on-camera releases are used, an approved script should be provided.
Institutions may also require that interviewees have a right to withdraw consent – it is important to provide that this must be exercised within a certain time period after filming.
- Review and Approval
Generally film-makers will resist any claim by their subjects to review and approve the film they are making. Not only does this compromise the independence of the film-maker to depict the story as they see fit, it also raises the serious question of what happens to the time, money and effort expended on the film if the subject does block it.
However, when dealing with a government department, or entity such as the NSW Police Force, it is very difficult to escape the imposition of some kind of review and approval process. In this situation, the aim should be to ensure that the process is workable, having regard to the demands of TV production. Accordingly the following factors should be considered:
- stage at which approval is to be exercised, usually rough cut;
- any material that needs to be delivered in addition to footage;
- composition of review panel, ensuring that the persons have authority to approve, but that number of persons with right to approve is not too large;
- factors that may be considered, need to provide reasons if approval is withheld (eg breach of terms of access agreement, potential harm to a person who has been filmed)
- time limits during which decision must be made, remembering that we are often dealing with large bureaucracies
- Fees and Payments
The entity may charge a fee – often on a cost-recovery basis in relation to their staff assigned to supervise the filming process. Where a staff member is required to take time off from their position to participate in the filming the producer may have to bear the cost of engaging a locum to fill in. As with any other agreement, it is important to ensure that the quantum of the payment is clearly specified.
- Risk and Insurance
The producer may be required to insulate the entity from any additional risk arising from their participation in the production. This is reasonable, however provisions must be carefully scrutinised to ensure that the producer is not accepting any liability for the acts or omissions of the entity, as this may take the producer outside the scope of their own insurance policies due to the standard ‘contractual liability’ exclusion. Watch out for references to adding the entity as an ‘additional insured’ or to broad waivers and releases that do not exclude the entities own ‘negligent acts and omissions’.
The producer may be required to erect signage to notify members of the public that filming of the program is in progress, and to provide the public with an opportunity to advise the producer that they do not want to be included, even incidentally.
- Privacy and Confidentiality
The producer may be required to comply with detailed confidentiality and/or privacy provisions, which reflect duties and obligations imposed on the entity. This is especially relevant where the subject matter concerns potentially vulnerable individuals such as children or hospital patients.
As with personal releases, the agreement should incude a clear statement that all rights, including copyright, in the film will be owned by the producer who has the right to exploit in all media and formats – typically in perpetuity and throughout the world.
- Corporate Use
The entity may wish to use the program, or segments of it, for their own internal purposes. This might include: archives, training, corporate relations, or even in waiting rooms. Such use must be clearly circumscribed, and care must be taken to ensure that the rights granted are not inconsistent with exclusive rights granted to the broadcaster who is funding the production.
C. Other considerations
There are a number of other issues that might need to deal with in working on biographical films or observational documentaries.
- Broadcaster Agreements
To avoid the client being caught between conflicting contractual obligations, it is essential that any restrictions or conditions imposed under any Participant Releases and Access Agreements be reflected in any Licence or Investment Agreement that the client enters into with a network regarding the exploitation of the program. For instance:
- the producer may need to reserve the right to withdraw episodes or segments if a participant or entity withdraws consent or other circumstances change;
- the responsibility of the broadcaster to conduct their own legal review may be specified; and
- in relation to sensitive subject areas, the producer may need to insist on the right to approve any program promotions produced by the network.
- Surveillance Devices Act 2007 (NSW)
Observational documentaries often include the filming of conversations between subjects. For example, a police officer interviewing a suspect, or a doctor delivering a diagnosis to a patient.
Where the conversation might reasonably be regarded as a ‘private conversation’, making or broadcasting a recording of the conversation without the consent of the participants may constitute a breach of the NSW Surveillance Devices Act, is a criminal offence punishable by up to 5 years imprisonment. Obscuring the identity of the party to the conversation by pixillation or other method is not effective to avoid such a breach. Laws differ from state to state, in some states (Queensland, Victoria and the Northern Territory) one party consent is allowed.
It may be argued that presence of a visible television crew filming the conversation implies consent, but this may not apply if the ability of the party to remove themselves is restricted, for example, if they are under arrest. They may state, or indicate by gestures that they do not wish to be filmed. Signature of a participant release will negate this risk – however express refusal to sign such a release may have the effect of removing the ability to argue implied consent.
- Criminal Law Issues
Special considerations arise when crime is the subject of a documentary.
Firstly, unless the producer adheres to the facts of the case, as set out in a final judgment, they may expose themselves (and the broadcaster) to a claim of defamation. Care must be taken if using materials provided by the police to ensure that this material was accepted as evidence by the court.
Secondly, where the subject of the documentary is involved in criminal activities, there is a risk that if they are subsequently charged with a serious offence, broadcast of the program showing an earlier offence may constitute contempt of court. To avoid this, it may be necessary to consult court lists prior to broadcast.
And thirdly, be aware that where a documentary is covering a sexual offence, or an offence involving children, it may be subject to legislative restrictions or suppression orders. This area can be extremely complicated, and if it is an issue, specialist advice should be obtained.
It is a common misconception amongst producers of docu-dramas that they can mitigate or avoid defamation and similar risks by fictionalising events. They may also compress events and invent composite characters for the purpose of enhancing dramatic appeal.
Unfortunately, where individuals remain identifiable despite these changes, producers (and broadcasters) can find themselves liable for a claim of defamation, without the defence of truth that would available in the case of a straight documentary. This liability may persist, notwithstanding the use of disclaimers, where the imputation in context is that the script is based on fact.