We get it—filmmakers usually don’t enjoy the “film clearance” process. You may connect clearing a film with lawyers telling you to make unwanted changes to your film because they lack certain agreements and releases. But film clearance doesn’t have to be painful. Read this article to learn more about the film clearance process and how we can help.
What is Film Clearance and Why is it Necessary?
Generally, “film clearance” describes the process of obtaining written permission to use everything (that you don’t already own the rights to) in your film. The reason for this is twofold: 1) so that your film is not vulnerable to third party claims and lawsuits and 2) to obtain errors and omissions insurance (“E&O insurance”) so that your film is “clear” for distribution. Learn more about E&O insurance here.
Film Clearance Throughout the Production Process
Below we’ve outlined the major stages of the production process and the types of permissions a filmmaker should obtain through written agreements and releases during each stage. From a planning perspective, this timeline provides ideal examples of when filmmakers would want to obtain the necessary permissions. However, we understand that producing a film is a creative process with several moving parts. During the production stage, we equip our clients with a Production Packet that contains these agreements and releases and guidance on how to use them. But don’t fret if you’ve completed production. We can help you get organized and obtain the necessary permissions retroactively.
Establishing a Production Company
We recommend that all filmmakers establish a production company, which is just a business entity for your film. By establishing a production company, filmmakers can divide the financial risk among several persons, separate their personal finances from the company’s finances and also avoid personal liability, should anything go wrong throughout the production and distribution process.
During the development stage, filmmakers and writers collaborate to transform ideas into stories and ultimately into a screenplay. Regardless of how you develop the screenplay— i.e. whether you write the screenplay yourself, collaborate with other writers, acquire the rights to someone’s life story, adapt a screenplay from another work, or hire a screenwriter— the goal here is the same, you must acquire the legal right to tell the story. In fact, a distributor will not consider a film unless the production company owns the story rights. A production company may acquire these story rights simply by ensuring that all those who collaborated in creating the story sign agreements which assign the film’s intellectual property to the production company. As the owner of the screenplay, the production company may now register the literary work for copyright protection.
During pre-production, a filmmaker usually hires contractors and other crewmembers. In doing so, the filmmaker/ production company will want to enter into a work-for-hire agreement with anyone who creatively contributes to the film in order to secure ownership rights in the person’s creative contribution and also to ensure compliance with the state’s labor and employment laws.
During film production, filmmakers should obtain appearance and location releases, media licensees and releases, vendor agreements, and post a public placard. Learn more about these clearances below:
- First off, an appearance release is an agreement between the production company and anyone appearing in the film that allows the production company to use the performer’s name and likeness in the film.
- Whereas, a location release is an agreement between the production company and the owner or authority of the set location that allows the filmmaker to shoot the film at that particular site and use the location in the film footage.
- Additionally, a copyright owner enters into a media license and release to allow the production company to use a photo, film clip, book, newspaper, poster, artwork, or other copyrighted work within the film.
- A filmmaker should also take care to post a “public placard” during production in public places to inform the passers-by that they may appear in the film.
- Finally, the production company should enter into a vendor agreement with all equipment owners whose equipment will be rented or used throughout film production, including crewmembers who use their own gear.
Post Production: Film Screening and Clearance
At this stage, we provide our clients with a Clearance Grid, which is an organizational chart that allows filmmakers and ourselves to track third party rights implicated throughout the film and whether the necessary agreements and releases were obtained or whether the clip qualifies under the doctrine of “fair use.” Learn more about fair use here. We “screen” our clients film with a legal eye, to ensure filmmakers obtained the necessary third party permissions and also to empower our clients to lean on the doctrine of fair use.
Throughout this process we make fair use determinations within the clearance grid for those clips we believe are covered under the fair use doctrine, and also advise filmmakers where we think it would be beneficial for them to obtain a license or release or otherwise blur or shorten the particular film footage. Filmmakers then respond to our concerns by obtaining third party agreements or editing the footage. We make a final pass at the film to ensure all third party rights have been “cleared,” finalize our fair use determinations and write a Fair Use Opinion Letter to the E&O insurance broker.
Using Our Clearance Grid
For our clients using our clearance grid, you’ll want to log in chronological order by timecode, any instances where another person’s rights are implicated. Here are some examples of third party rights you would want to log in the grid:
- Someone’s appearance on screen
- A private location, for example someone’s house.
- A film clip, image, or photo that isn’t yours.
- Artwork commissioned for the film (i.e. a composed score of music; an animation).
You don’t need to log your original footage. Also, repeat appearances and locations only need to be logged once.
Wrapping It Up
In short, film clearance describes the process a filmmaker goes through to obtain written permission for all third party rights implicated in the film. After these rights are “cleared,” filmmakers may obtain E&O insurance in order to distribute the film.
By: Jenna Macek – 04/20/16
- After Film Clearance Come Errors & Omissions Insurance
- An Overview of Fair Use
- Life Rights and Why You Need Them
Disclaimer: Although this article may be considered advertising under applicable law and ethical rules, the information in this article is presented for informational purposes only. Nothing should be taken as legal advice. Reading this article does not form an attorney-client relationship with us. An attorney-client relationship is formed through a signed engagement agreement. If you would like further information, wilkmazz pc would love to help you out! Feel free to reach out with any questions.
Photo Credit: Jackie Wonders