Shooting Public Events

I'm shooting a local Flag Day parade in the US for a doc project I've been working on lately. It is my own project and hopefully will find a distribution deal down the road. Somewhere, somehow....

I plan to shoot this parade, especially a marching band, with several cameras. We will follow the band for several audio "takes" of them repeatedly playing the same song as they march. This music will be the underlying sound track for the rest of the segment with the parade, for B roll, and mixed in under interviews at the parade.

Do I need releases from the band members? Do I need a release for the music or performance?

I'm a bit uncertain as to where, during a public event, I need to gain releases for a doc. Of course, on-camera interviews will have signed releases but what about close-up B-roll? It may also prove to be impractical to get releases while covering a fast-paced event without being too intrusive. Anyone have experience with public event shooting and the legalities of releases in this situation???

Thanks in advance for any advice you may have to offer.

Jim Sofranko
NY/DP

Jim asks :

>Do I need releases from the band members? Do I need a release for >the music or performance?

For a documentary, I think you can claim fair use. Public event, shot in public, no releases needed.

>I'm a bit uncertain as to where, during a public event, I need to gain >releases for a doc.

You may want to get them, and may need then for TV sales, but I hate releases and don't get them. I feel if someone really wants to sue you, they should have the right.

Jeff "really" Kreines

P.S. : We did get releases for Seventeen from everyone in the high school we filmed at, but we got them after we'd filmed there all year. Only because we were forced to...

Jim,

You need releases for all the band members, performance/sync rights for the performance of the music, publishing rights for the musical composition.

Music rights are the worst in my opinion. The two major publishers left are bound and determined to screw you in as many ways as are possible in Hollywood and Sicily. Musicians are fine but their reps assume that every project is Spiderman 2 or Titanic.

Robert Goodman
Author/Photographer/Producer

Jeff,

There is no fair use for anything. Forget you ever heard it. It's a last resort. The way things are today you must provide E&O insurance with distribution to television or theatrical. E&O without signed releases is astronomical if you can buy the coverage at all. No coverage, no TV sales. For a doc, no TV is death.

If you shoot b-roll and there are no recognizable faces - you're fine. Interviews must have releases. Music I posted my response before. The fair use provision only comes into play if you are a news outlet. Then you can shoot the band and not have to pay them. One reason is every station has an ASCAP/BMI license on a yearly basis that covers the publishing rights holders. The song writer/composer will receive payment whenever the song/composition is played on the air.

ASCAP/BMI sends out hordes of college kids to watch tv, sit in bars and hotels, etc recording what's played on the radio, jukebox, tv, etc.

Robert Goodman
Author/Photographer/Producer

Robert wrote:

>There is no fair use for anything. Forget you ever heard it. It's a last >resort.

Things have changed. We had some very expensive lawyers (at Paul, Weiss, not exactly novices in the area) telling us that all the music in a film of ours (and the radio is on a lot) could be considered "fair use." But this was a different era. They also had a novel concept involving our shooting style constituting a de-facto release, but I won't go into that.

>The way things are today you must provide E&O insurance with >distribution to television or theatrical. E&O without signed releases is >astronomical if you can buy the coverage at all. No coverage, no TV >sales. For a doc, no TV is death.

Television has really screwed up everything.

I wonder how this applies to the work of a photographer like, say, Robert Frank? Obviously all of his photos aren't shot in public places, people are recognizable, and he doesn't get releases. The same is true of a lot of contemporary still photographers.

For my own films, I still would avoid getting releases, because I think it's wrong asking someone to sign a piece of paper that's designed to scare them into thinking they have signed away all their rights to sue you, when in fact they really have not.

Jeff "television is not your friend" Kreines

> Television has really screwed up everything.

Nah... It's insurance companies that have really screwed up everything.

Working for TV news/current affairs shows, you never worry about releases - they've got a legal department that looks after any lawsuits or threats of lawsuits. The legal guys vet any questionable material...But I've rolled tape while being escorted off of property I was trespassing on, and (this may be specific to Canada) the footage is completely legal and usable. (At least, as long as I did, in fact, leave when I was informed I was trespassing and was asked to leave...etc.)

The insurance industry is preying on independent producers (close to 100% of the documentary world these days) who don't have big legal resources on standby, so they've got to rely on E&O insurance instead. The question isn't "what is allowed/required by law?" but "what will the insurance company let me use without charging me a fortune?"

Ever asked a lawyer to sign one of those boilerplate release forms? They tend to laugh hysterically - if somebody really wants to sue you, the release isn't going to stop them. It's just risk-management for insurance companies. While nobody objects to having interview subjects sign release forms - seems like a pretty common-sense precaution - these days some are asking for release forms from people walking by on the street in an establishing shot... Or in the background if you have a presenter in a public place. That's just out of control.

Recently on a documentary I was working on, we were told that having a verbal release at the beginning of the interview - on in b-roll, people saying "yeah, I don't mind if you film me" would stand up as well, if not better, than a written release in court.

At the other extreme, on one show, they had a 5-PAGE release form, filled with dense legal terminology. (Including the rights to the subject's entire life story, in perpetuity, in any recording format extant or yet to be invented, anywhere in the universe.) The lawyer I showed it to said I'd have much better luck with a plain-language release that simply said "I agree to be filmed (for Show Title/by Production Company) and understand that I will not be paid, and that the film is the property of (Production Company)." (Customize to fit your needs!) He said with the 5-page release, it would be supremely easy to argue that someone didn't fully understand what he was signing, or that it was misrepresented...With a "plain language" release that's not the case.

George Hupka
Director/DP
Downstream Pictures
Saskatoon, Canada

>Television has really screwed up everything.

Remember the old quote, "Television is a vast wasteland." That guy couldn't even imagine what it's become. Unfortunately, for most non-fiction projects that wasteland is where your film will end up. It's all owned by conglomerates that are risk-adverse unless it serves their needs to move the stock price.

>I wonder how this applies to the work of a photographer like, say, >Robert Frank?

There is more leeway with still photography exhibited as art. A documentary film that will be broadcast reaches a much wider audience than any gallery exhibit or book publication will ever reach. that and the fact that the context within the film may alter the meaning of the images ups the chances of being sued.

It's a pain to do and Jeff is right in saying that it doesn't prevent you from being sued though it does eliminate some suits. Usually the ones where the person in question realizes afterwards that his or her presence in that location at that time compromises them in some way. Those folks (e.g., adulterers) will sue to stop distribution of the film. If you misconstrue the context or edit to alter meaning, the door is open to a lawsuit.

Robert Goodman
Author/Producer

> Music rights are the worst in my opinion.

I know someone who shot a film which included a High School marching band doing a version of the Rolling Stones "Jumpin Jack Flash" !

It was great. I was fortunate enough to see it before the lawyers did....

The rights were way out of his price range. So Sousa you're OK, but Jagger/Richard no....

Sam Wells

Robert wrote:

>Remember the old quote, "Television is a vast wasteland." That guy >couldn't even imagine what it's become.

Not quite what he said.

http://www.janda.org/b20/News-articles/vastwastland.htm

Here's an edited version of Newton B. Minow's great speech to the NAB. (Imagine how that went over!) Note how different the assumptions are, of who owned the airwaves. Things started going downhill during the Reagan administration, and are a joke now.

(I went to high school with his daughters. We need an FCC with commissioners like Minow, Nick Johnson, and Clifford Durr again.)

Jeff "mourning the death of that great American... Ray Charles" Kreines

>Jeff "mourning the death of that great American... Ray Charles" >Kreines

Amazing live video stream of Reagan lying in state on CNN as we write. Kind of creepy.

Jim "Liked Ray too" Sofranko
NY/DP

Jeff,

Thanks for posting that link.

Perhaps not quite what Mr Minow actually said but "you will observe a vast wasteland" is splitting hairs, and Yes I agree we would live in a different world if the FCC adhered to the principles upon which the industry and agency were founded.

Today, greed and the interests of the conglomerates rule the airways. The public be damned and we are.

Robert Goodman
Author/Photographer

>It's a pain to do and Jeff is right in saying that it doesn't prevent you from >being sued though it does eliminate some suits.

Yes, I understand the reasoning but it's seems rather impractical. Kind of puts a limitation on documenting a public event. I would imagine that simply getting releases while shooting would be fairly disruptive to a small town event and thus negatively affecting my ability to document the event.

Any other experiences, suggestions, or defences out there?

Be sure to send me all your pertinent info so when you are called to testify...

Thanks.

Jim Sofranko
NY/DP

In re : Newton Minnow.

Not only are the airwaves public property, they were supposed to be free. The proliferation of cable tv has allowed broadcasters to neglect their signal quality knowing that eventually people will pay to get a that previously free signal over cable and still have all the commercials. In many areas, you there are no more antenna installers.

Wasn't paying for cable supposed to eliminate advertising? Even so-called public television is now polluted with "tasteful" advertising, that is, when they aren't fund raising, talking about fund raising, or thanking us for previous fund raisers or running auctions.

Any news about "Unchain My Heart" ?

Brian "So long, Ray." Heller
IA 600 DP

Jim Sofranko writes:

>I'm a bit uncertain as to where, during a public event, I need to gain >releases for a doc. Of course, on-camera interviews will have signed >releases but what about close-up B-roll?

This shouldn't be construed as legal advice... but:

For TV broadcast, street music may be OK because stations and networks are covered by ASCAP/BMI agreements -- BUT, be sure to verify this.

Re: E&O (Errors and Omissions) insurance: My lawyer sez: It's a good idea to *apply* for it when you start your production, so the insurance company can tell you the requirements. Just don't actually buy it until you have to.

Wide shots of public events shouldn't be problematic. Close-ups may be, but any plaintiffs would have to prove that you've damaged them in some way. Still, check your E&O insurer.

Some indie filmmakers I know just don't bother with releases at all, and are willing to take the chance of being sued because they don't have much in the way of assets. That may be fine for home-brew DVD distribution, but if you want to get your film on the air your E&O insurance will be astronomical, if available at all.

George Hupka writes :

>Recently on a documentary I was working on, we were told that having a >verbal release at the beginning of the interview - on in b-roll, people >saying "yeah, I don't mind if you film me" would stand up as well, if not >better, than a written release in court.

I do this whenever I need to shoot a private gathering or conference: I ask the organizer to make an announcement (which I shoot) that anyone who objects to being filmed for a TV documentary on the subject of X should make their objections known. This may not be as bullet-proof as a written release (which specifies territory, duration, assigns and licensees, etc.) but it does put the onus of objection on the subject.

>The lawyer ... said with the 5-page release, it would be supremely easy >to argue that someone didn't fully understand what he was signing, or >that it was misrepresented ... With a "plain language" release that's not >the case.

A simple form has worked well for me when shooting docs. My lawyer has approved it, but I can't promise that yours will.
Here it is, and anyone's welcome to copy it...

===================

PRODUCER:

(PRODUCER'S NAME AND CONTACT INFORMATION)

Current Production (working title): _______________________________

Date __________________________

Location ____________________________________________________

I have participated in audio/visual recordings made by the Producer, initially for use in connection with the production identified above. I agree that insofar as I am concerned these recordings may be edited and disseminated in visual and/or audio and/or print form, wholly or in part, to or through any or all communications and/or entertainment media without time limit throughout the world, by the Producer and its successors, assigns and licensees. I also consent to the use of my name, likeness, voice and biographical information in
connection with related publicity.

Name (print) _________________________________________________

Signature_______________________________________

Signature of parent, if subject is a minor __________________________

Date__________________

Address ___________________________________________________

City ______________________ Postal Code _________ Country _______

Phone(s) ___________________________________________________

Email ___________________________________________________

==============

Dan Drasin
Producer/DP
Marin County, CA

The "plain-language" release I've used is a lot like Dan's.

The National Film Board of Canada also has a simplified release form - I think they actually have pre-printed pads! (Can't remember, the director is generally stuck carrying those around.) Those are usually used in situations where we may do an impromptu interview with someone at an event, or we've recorded a conversation we think we may want to use...

The "full-on" release forms are saved for the major participants (although I think we've used the simple release even for some longer interviews).

George Hupka
Director/DP
Downstream Pictures
Saskatoon, Canada

Brian Heller wrote:

> Any news about "Unchain My Heart" ?

What'd I say?

You are so right about broadcasters. The fact that a license is now property to be sold at a huge profit also seems wrong. And what ever happened to license challenges? It used to be great fun to go to a station and ask to see the "Public File" and watch them get nervous.

The HD spectrum giveaway was also repulsive. Michael Powell is a disaster...

Jeff "moved it to Chat" Kreines

George Hupka writes :

That's what Fred Wiseman does. He never uses paper, and he's a lawyer.

We asked if he ever had to go back and find one on his tapes. He said, with a look of great relief on his face, no, never.

I understand the need for them for E&O and for TV, but still never would get one. I just think they're onerous.

Jeff "contrarian and grumpy, too" Kreines

>I understand the need for them for E&O and for TV, but still never would >get one. I just think they're onerous.

One of the things I've seen happen repeatedly is interview subjects getting spooked by the release form. Or the filmmaker's credibility being questioned because of the way the releases are written.

On one doc I was shooting, the producer had one of the long, "cookie-cutter-legalese" release forms that included rights to the subject's life story & the right to use the subject's likeness in toys or action figures (!). I believe it was supplied by the E&O company, as the release they "approved" for their clients.

She was trying to get serious scientists to sign these things, and I could just see her credibility dropping as they scanned through them. One particularly respected subject sat down at his desk, wrote his own release form, signed it and gave it to the producer - "I am not an action figure. I will never be an action figure. I think we can agree on that."

George Hupka
Director/DP
Downstream Pictures
Saskatoon, Canada

>Any other experiences, suggestions, or defences out there?

In a small town, you can do the following things in advance of the event :

1/. Post notices that you will be filming the event. Indicate a reasonable way for anyone who does not care to be filmed can avoid being filmed.

2/. Better yet, attend or arrange a town meeting in advance of the event. Bring releases, explain what you plan to do. Ask people for help and to sign the releases.

3/. Leaflet the spectators to inform them that they will be filmed if they are in a particular section. Confine your filming to that section.

4/. Pray that no one sues you. Life is too short.

Robert Goodman
Author/Photographer/Often Reluctant Producer

Dan doth quoth:

>A simple form has worked well for me when shooting docs. My lawyer >has approved it, but I can't promise that yours will. Here it is, and >anyone's welcome to copy it.

.... [then quotes the form] ....

I think the form is good (it got your lawyer's approval after all) BUT to be really strong (legally speaking) its needs 'consideration'. For a contract to be enforceable you need an exchange (consideration), otherwise its a mere promise. Now, the consideration can be anything - because the law won't void a bad deal (otherwise it'll be undermining the whole laissze faire basis of contract theory). I often use the right to credit or a copy.

Ie I'd say at the end :

"In consideration, thereof, I accept that the producer will duly credit me in the manner they see fit'.

It depends where you are though. American's have a far stronger right to privacy than other Common Law countries, so releases are important. On the other hand, they're more likely to enforce promises (usually under Equity) than anyone else.

Nonetheless, contracts with consideration are good security to satisfy the requirements of insurance.

In general, Consideration is really important. Especially if you're doing copyright licences! (under Australian copyright law, whoever provides 'valuable consideration' for the production of a 'cinematograph film' is assumed to own the film unless that has been otherwise modified).

Stuart "3 subjects till I have my LLB" Willis.

Director + editor
Sydney, Australia

www.biki.net

>For a contract to be enforceable you need an exchange >(consideration), otherwise its a mere promise.

Everything I've ever done like this, the PA getting forms signed also hands a dollar bill to each person signing : that's the legal consideration. Just like in the "Paper Chase."

Blain Brown
DP
LA

Jeff Doth Quoth:

[about recording 'permission' before doing an interview]

>That's what Fred Wiseman does. He never uses paper, and he's a >lawyer. We asked if he ever had to go back and find one on his tapes. >He said, with a look of great relief on his face, no, never.

Well, the fact that a person is talking to a camera and answering questions is prima facie evidence that they gave permission for that to happen. I doubt that would ever be questioned in court, because it would be very hard for the interview subject to argue that they DIDN"T give permission. ("Yes, your honour, my client didn't think the cameras were on"). The issue would be the LIMITS of that approval.

I've read some contracts which reserve the right for the subject to receive a copy of the interview and to 'approve' the cut! WTF? Its unrealistic in broadcast news or current affairs, but sometimes is important to get concessions from bigger Whigs.

Generally, its about agreeing that you won't misrepresent them and you're allowed to use it for X, Y and Z. You may also want them to indemnify you against again potential breaches of copyright (on their behalf) and defamation (on their behalf). Those things are usually harder to get unless you give them right for final approval on the content.

In the end, its those kind of qualifications which should be in a release (if you use one)... not just a general 'release' for interviewing. Contracts are important for specific questions, not general ones. Simply because general ones are easily resolved by good diplomacy.

Stuart "Has never heard of a case about people suing for not agreeing to be interviewed - but has heard of ones where people have sued over misrepresentation. But it never goes to court, cause these things never do" Willis.

Stuart M. Willis
Director + Editor
Sydney, Australia

>In the end, its those kind of qualifications which should be in a release >(if you use one)... not just a general 'release' for interviewing. Contracts >are important for specific questions, not general ones. Simply because >general ones are easily resolved by good diplomacy.

Yes, I will have release forms for the interviewees but it's the on-the-fly public event shooting I have some concern about. It's a patriotic Flag Day parade so I would imagine that there will be cute kids with flags and people dressed in flag clothing, etc...at this very large public event. At this point in time it is too late to try to post signs and such. There are going to be thousands of people watching this long parade in this small town. There are over 180 different floats and organizations represented.

I am reluctant to try to get releases before we shoot the public because I may lose the spontaneity and I am further reluctant to have to spend the time to negotiate a release form for what I have already shot. And I don't have enough support crew for that. If I simply shoot them watching a parade I haven't misrepresented them in any way. I am simply documenting the event. Although in the future, they may disagree with the point of view or conclusions of the film. The parade is a significant event for the content of the film. But it's not like I'm cutting them into a porno film or something out of context.

In addition, I would like to shoot a marching band but the shoot is today. But if I try to get release forms at the last minute and someone refuses that will make it all the more difficult to shoot them. I am leaning to simply shoot them and worry about the consequences later.

Thanks for all the advice from everyone. I'll see you all in court. Gotta go shoot...

Jim Sofranko
NY/DP

Jim Sofranko wrote:

>In addition, I would like to shoot a marching band but the shoot is today.

Just shoot it and use it. You'll have a big pile of releases for your interviews. Don't ever let releases get between you and the film.

Missing a few releases is one of those "errors and omissions" you pay the insurance company for.

Jeff Kreines

Jim Sofranko wrote:

> I'm shooting a local Flag Day parade in the US for a doc project...

>Do I need releases from the band members? Do I need a release for >the music or performance?

Greetings Jim,

So hope your local Flag Day Parade went well. How did you finally solve the issue about releases, if I may ask? Interested in the matter.

Regards

Emmanuel from Munich

>So hope your local Flag Day Parade went well. How did you finally solve >the issue about releases, if I may ask? Interested in the matter.

Because of many issues such as time, budget, and scale of the parade we decided to not get releases from anyone who was watching or participating in the parade. We did, however, get releases from anyone interviewed on-camera as we usually would do.

The parade was over 2 hours long, attended by several thousand people, and nearly a mile long. Getting releases while shooting run-and-gun was totally impractical and would likely disrupt the very nature of the event. I listened to the very helpful suggestions of the CML'ers and decided that Jeff K's idea that even with releases there is no protection from suit was the best route to follow. I'm sure Jeff will testify on my behalf...

Did I get advice from an attorney? No. Should I have? Perhaps, but I'm fairly sure that the advice I would have received may have been as varying as the opinions expressed on the CML.. Will it cost more in Errors and Omissions insurance? Probably but I needed to get the shooting in the can as my first priority.

So I got it and will have to worry about the consequences later.

Jim Sofranko
NY/DP