Before you embark on producing your short or low budget feature, you should be aware that there are a few legal hoops you need to jump through in order to create and exhibit it. Some of these issues were discussed at the Tropfest seminar, 'What it Means to Sign on the Dotted Line' in early December. The transcript of the seminar can be viewed at www.tropfest.com.au. This article looks at the issue of obtaining rights and releases, but bear in mind there are other legal issues to consider such as insurance, cast and crew agreements and moral rights.
Acquiring the rights
The bottom line is that you must make sure that you have written permission to use all material that is going to form part of your film before you start production. You'll often hear the phrase, 'chain of title', which refers to the fact that you need to be able to prove that you have acquired the rights to the various components of your film, such as music, script and artwork. If you make your film using works you are not authorised to use, you not only run the risk of being sued for copyright infringement, but you will run into trouble trying to exhibit or distribute your film. Festivals, competitions, film websites and other exhibitors and distributors will generally ask you to warrant (promise), that you have cleared all the rights in your film. If you are not able to make that warranty then you are in all sorts of trouble.
There are several options when sourcing music for film's soundtrack.
The most affordable option is to use production music, which is music composed and recorded especially for use in film. You can obtain a licence (permission) to use production music from AMCOS (Australasian Mechanical Copyright Owners Association), ph: (02) 9935 7700.
Another way to go is to commission a composer to write music for your film and then arrange to have the music recorded. You will need to obtain permission to use the music and the recording.
A third, often prohibitively expensive, option is to obtain a licence to use music that has already been released. This will involve obtaining permission from the copyright owner in the sound recording and the copyright owner in the lyrics and music. If you are making a low-budget short, then don't set your heart on using the latest U2 release. Be realistic about what you can afford.
Make sure you have written permission from the copyright owner in the script. If the script is based on another work, such as a novel or short story, you will need permission from the writer or the publisher of that work.
Even if you wrote the script yourself there may be copyright ownership issues to consider. If you wrote the script as part of your film studies your film school may own copyright in it. Some educational institutions require, as a condition of enrolment, that students assign copyright in all works they create as part of their course. If that is the case you will need to obtain the school's permission to use the script for the film.
If you collaborated with someone else on the script then they may have rights in it, unless they agree in writing that you will be the sole copyright owner in the script.
If you plan on using any artworks, photographs or designs in your film, such as set or costume designs, you will generally need to obtain permission from the copyright owner in these works.
Ownership of the film
If you are one of several producers, are you happy to jointly own copyright in the film in equal shares? If you are making the film with other people it is a good idea to get something in writing confirming who has rights to the film, and what each person's responsibilities and obligations in relation to the production are.
Cast and Crew
You should obtain performers' releases from the actors, even if the cast consists solely of your friends, cousins and lovers. Exhibitors or distributors may require you to warrant that you have obtained the performers' written permission to film them.
If you are planning to film on private property, you may need to obtain location releases giving you access to the locations for the purposes of filming.
The process of clearing rights and obtaining releases is an integral part of filmmaking. Before you invest your creative energy, time and money in making your film, consider what rights you will need to acquire, and make sure you get them.
Alison Davis was a Legal Officer at Arts Law.
This article was first published in if Magazine, the magazine for Independent Filmmakers.