Rights, releases and disclaimers

In a previous article, we discussed some of the areas producers should look at to make sure they avoid legal liability, including the use/depiction of original characters and the potential risks involved. There are other areas to cover and including where material already in existence (and belonging to someone else) is being used, extras are being hired and views are being expressed.

There are many elements that come into the making of a movie or a documentary film and this sometimes includes the use of pre-existing material that may or not belong to the producer. Whether that pre-existing material consists of music, words or film footage, you must first check whether your use of the same requires permission from the material's owners. Most often, that material is work protected by copyright and a permission or licence is required for you to use it.

Any use of copyrighted material without prior permission from the owner of that material may result in a lawsuit and legal liability. Clearing the rights starts with determining who the owners of the copyright are and then negotiating the terms of the permit. Clearing music, for example, is dependent on many factors including the nature and purpose of the use, the territory, the frequency (how many times will the music be played) etc. Clearing other material may depend on different/other factors.

Having said that, there are circumstances where the use of some material (visual, music or others) may not require clearing and may be considered fair use. This is true in the context of documentary movies for example. The concept of fair use (or fair dealing) allows limited use of copyrighted material without requiring permission from the rights holders. It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship. The scope of use (where and how much) varies from one jurisdiction to another. For example in the US, fair use would include use in fair comment and criticism, parody, news reporting, teaching, scholarship and research, scholar purposes, reviews or documentaries.

So, a movie critic would not need permission to include a small quote from the work being reviewed. In the UAE, the concept of fair use is provided for however, the context in which it is applicable relates more to publishing activities. For example, some of the allowed uses include using quotes of short paragraphs, text extracts or studies in the context of a critique, discussion or for media purposes; or copying short extracts of a work in written or recorded form for educational and informative purposes.

It may be difficult to determine whether a use falls within the fair use doctrine. Generally speaking, a greater amount of material may be borrowed from non-fiction works than from fictional works because of the nature of the information being used. If it is historical or factual, there are stronger chances of the borrowed material falling within the fair use doctrine. Of course, if the material is being reworked to create something new and not incorporated as is then it is unlikely that there would be infringement.

There is also no specific number of words, lines, or notes that may be used safely without permission and acknowledging the source of the copyrighted material does not substitute for obtaining permission. To keep it safe, either clear the material or seek legal advice regarding the same.

The first step is to secure the right release. A release is a legal instrument that acts to terminate any legal liability between the releasor and the producer, signed by the releasor. A release may also be made orally in some circumstances. Releases are routinely used by photographers, in film production, by documentary filmmakers or advertising agencies, when they photograph, film, video or record the voice or performance of individuals to be sure that the person consents or will not later object to the material being used for whatever purpose the producer. A release will help in ensuring the copyright owner has a clean chain of title for any work if it is later published, broadcast, shown in public venues or otherwise made public.

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