Alternative legal framework for documentaries

[Ben Denham]

It occurs to me that for certain types of documentary projects the standard release forms that contributors must sign are not entirely appropriate. A concrete example might help to explain what I mean.

About a year ago I was shooting some material in an isolated village in the south of Mexico. The broader context of this material was a program, run by various NGO's, that was aimed at facilitating the exchange of information on sustainable agricultural practices between small scale farmers. The real star of this material, (who we'll call Juan), was a farmer who had been farming without the use of chemical fertilisers and pesticides for over 15 years. He told us the reasons why he stopped using fertilisers and the difficulties that he had in making the transition to more sustainable methods.

He was able to produce enough food for is rather large family, (including his 96 year old mother) but the family was very limited in their ability to generate a cash income. His family was part of a cooperative of 4 or 5 families who were all in a similar position. These families had very concrete development goals and needs including water tanks to catch rainwater in the wet season so they wouldn't have to walk for an hour and a half to the nearest river and then cart water back to the village during the dry season.

In this context I felt that simply asking Juan to sign a standard release form was inappropriate. My feeling was there needed to be a legal structure that would allow the documentary to help this community to achieve their development goals. This is clearly not a journalistic model for documentary production and the legal model that I'm thinking about would probably be most suited to a conception of documentary film-making as a means to help groups of people achieve certain development goals. But perhaps a legal model such as the cooperative, that has a sense of collective ownership, might also be useful for Indie film-makers in other genres.

Michael Moore touches on something similar to this in an interview he did at the Commonwealth Club of California. You can see his comments via the following link (scroll down to question 7 "Sharing revenue with his crew").

FORA.tv - Filmmaker Michael Moore on Capitalism: A Love Story

I totally agree with Moore when he says that creative control shouldn't be cooperative.

My intention here IS NOT to start a political discussion and I know that such discussions are NOT TOLERATED on this forum, but rather to start a discussion about how legal alternatives might be seen as another tool for documentary production. Any ideas on legal alternatives to the standard sign-a-release set-up?

[Bob Kerner]

First of all, I don't think you've clearly explained your objection to having the subject sign a release......... How do expect to help or not help the villagers through the use (or non-use) of a release? If you are concerned that they are subrogating or surrendering their rights, then you need to make that point.

In general, I think the whole release process is antiquated much like copyright law as it applies to education and non-commercial creative professionals. It's time to re-think the system and ask whether having everyone sign releases is really serving the intended purpose which, from a legal history standpoint, was to protect the use of peoples' likenesses for commercial purposes and to protect the right of privacy. The scope of this discussion has changed over the past 15 years, just as the discussion in copyright is changing.

Google Lawrence Lessig and watch some of his speeches on copyright. I see parallels with the talent release issue. Unfortunately, the corporations which produce and air documentaries are risk-adverse: they want releases for everything in perpetuity as a means to limit their exposure. They are not likely to budge on this issue.

[Ben Denham]

Hello Bob
I'm not necessarily looking for a specific answer to the example I gave so I won't dwell on it. I guess I'm more interested in the general question.

Yes Lawrence Lessig was one of the people who has figured in my thoughts on this subject. However it is a little odd that while it would be possible to release a finished documentary under the creative commons licence, that Lessig developed, there is no creative-commons equivalent at the release form stage (please correct me if I'm wrong). I think we're in agreement on the idea that the release form is a bit of a legal sledgehammer, that will always break your nut, but sometimes it would be nice to have a nut cracker instead.

A creative commons release form seems eminently doable (and perhaps has been done). This would mean that instead signing their words/image over to the producers of the doco interviewees etc. would sign their contribution over to the creative commons.

A worker/contributor owned model for film production seems to be a little bit more complicated from a legal point of view but Lawrence Lessig seems to have a lot of time on his hands so I'm sure he'd be happy to whip something up for us. Just kidding actually his current task (campaign funding) will probably keep him busy for the next couple of decades.

[Evan Donn]

It's an interesting concept. Licensing a film as creative commons doesn't necessarily have any impact on the commercial rights; my current approach is still to use a standard release even though I know I'll release the film as CC because I don't know what other forms of licensing I may release it under in the future.

Now I've started using a lot of CC-licensed music in my projects, generally under the credit-sharalike-noncommmercial license - knowing that if I pursue a commercial distribution of anything I'll need to obtain an additional license from the artist. I could see this type of model being used for the type of release you're talking about - i.e. the subject is giving permission to use their likeness as long as they are credited, the project is non-commercial, and is released under a CC license. Subsequent commercial distribution would require a new release & contract. It would be somewhere between having no release - and risking a subject suing you even for non-commercial release - and having a release where the subject gives up any and all future claims.

The downside of this is you are putting your potential commercial distribution at the mercy of your subjects - someone who was unhappy with the finished film could hold up your distribution with unreasonable demands. With the music most of what I use comes from Jamendo, and they have a program called Jamendo Pro through which you can obtain a commercial license for the music you use - this lets me know ahead of time what the potential costs will be if I need to obtain a commercial license later. Commercial licenses run anywhere from a few dollars to thousands - scaling based on distribution medium and reach. Not sure if you could establish something similar for releases, so that the subject is essentially releasing their likeness for non-commercial use with a pre-arranged, standardized compensation schedule for different types of commercial use.

[Ben Denham]

You could have a release form that operates on the attribution level of the creative commons licence. More details here
Creative Commons Licenses
From my understanding of these licenses, this would mean that you wouldn't be restricted in commercialising your work. The difference to the standard release would be that you as the producer/director don't become the sole owner of the content.

Authors retain moral rights which means they have some recourse under the law if they are misrepresented by dodgy editing but not being a lawyer I don't know how significant this might be for the commercialisation process.

[Ben Denham]

I just came across this Creative Commons Community email thread in which they are discussing this subject.

[cc-community] Obtaining and releasing documentary interview footage under 3.0 Attribution?

In that thread the following creative commons release form was proposed.

INTERVIEW RELEASE FORM

I hereby confirm and agree that I am aware that my contribution will
be recorded on film and that I have consented to contribute my
interview to the {project name} and that {project name} may licence
the recording, all or in part, under the terms set out by the
"Creative Commons By 3.0 Licence" overleaf.

I understand this means it may be made freely available to anyone
throughout the world, for broadcast over any medium throughout the
world, and that it may be edited freely in any such use.

My contribution has, to the best of my knowledge, been truthful and
honest. I have not deliberately sought to conceal any relevant facts.

Yours faithfully,


……………………………………………………… Date:


I'm not sure where broadcasters would stand in relation to this type of release form but it seems like a good start in developing something along these lines.

[Brian Standing]

Some PBS affiliates I've been working for just do a simple "on camera release." Just record the subject speaking directly into the camera. Have them state their name and that they give permission to use the footage as you see fit. Quick, easy, nonthreatening, and seems to pass legal muster.