By Anika Valenti Arts Law Solicitor and Melvina Valerii Arts Law Intern
Filmmaking is a highly creative process involving the intense collaboration of a vast number of people in order for a production to be completed successfully, on budget and on time. Before getting the show on the road, a number of legal issues have to be considered by the filmmakers. As essential as a camera, these legal issues are key to the exploitability of the film and the protection of the filmmakers themselves.
In this article, Arts Law outlines the Top 10 legal issues all filmmakers should contemplate prior to commencing the creative filmmaking process.
During the creative process
1. Protecting your idea for a film
One of the most important issues for a filmmaker is the protection of his/her film idea. It is very important to understand that copyright does not protect an idea in its intangible form. To be protected, an idea needs to be “expressed” in material form, for instance, in writing in the form of a synopsis, treatment or screenplay, or visually in a sketch or drawing. It can take years for a film project to be green lit, and thus it is important to protect your film ideas to prevent other people from using them.
Once an idea is embodied in material form it will be protected by the terms of the Copyright Act 1968 (Cth) (Copyright Act). This means that if you communicate the concept to another person who then uses it without your permission, he or she will be infringing your copyright and you will have the legal right to take action against them.
In addition to putting it in writing, thebest way to protect your film idea it is to keep it secret. However, if you want to communicate your idea to someone (for example, a potential producer, investor or distributor) you should consider asking them to sign a confidentiality agreement. A confidentiality agreement may provide protection in cases where there is any unauthorised use or disclosure of the confidential information you imparted. The use of such confidential information may amount to a breach of confidence thus providing you with the right to take legal action. Arts Law has a sample Confidentiality agreement online.
2. Basing your film on true events and real people
The fact that there is no general right of privacy under Australian law to prohibit the use of a true story in a film doesn’t mean the filmmaker has complete liberty to do what they want with that story. The filmmaker intending to base their film on true events and real people has to pay careful attention to avoid lowering or harming the reputation of a real person. If not, he or she may face a defamation action brought by that particular person. Filmmakers should be especially careful when their film depicts a true crime as it is often hard to avoid identifying a real person involved in the crime. To avoid being sued, a filmmaker can rely on the defence that the depiction is true or gain permission from the person being depicted.
Another source of risk for filmmakers using the stories of real people is the possibility that some of the information about that person may be of a confidential nature. This may be the case where the filmmaker has had ongoing interaction with the subject of the film and his/her family and has been privy to secrets or confidential information. In this scenario, filmmakers will be under an obligation to keep that information secret and not use it as content in the film, or they can be sued for breach of confidentiality.
Filmmakers should ensure that the person whose true story is depicted in the film is not misrepresented. This means the filmmaker must not give the impression that the person whose story is being told is affiliated with or gives their endorsement to the film where that is not true.
Finally, filmmakers should also be aware that there is legislation in each Australian State and Territory concerning surveillance and listening devices (which includes mobile phones and hidden cameras) and prohibition on the use of listening devices to record a private conversation without consent. Best practice is to obtain a written release from each person appearing in the film consenting to being recorded.
3. Who owns copyright in the film?
Films are protected under the Copyright Actfor 70 years from the time of first publication (e.g. first screening of the film). As films are always a collaborative effort and because copyright provides strong protection for its owner over the use of his or her work, filmmakers need to clarify who the copyright owner is before releasing or exhibiting their film. Usually, and for films made before 19 December 2005, the copyright owner is the person who has made all the arrangements concerning the film’s production – usually the producer or production company. For films made after this date, copyright ownership is divided between the person who has made all the arrangements and the director(s) of the film. As copyright ownership can be assigned, producers or production companies usually contract with the director for an assignment of the director’s copyright interest to them. To make matters more complicated, if the film is commissioned, the copyright owner is the commissioner (this can be varied by contract). This is important for filmmakers to consider if their films have received government or private funding as the investor (e.g. Screen Australia) will require at least a percentage of the copyright in the film in exchange for providing that funding.
Copyright ownership in the film is separate from ownership of the copyright in theunderlying works embodied in the film such as the script, the soundtrack, artwork used in the film or existing footage. Consequently, filmmakers need to obtain the authorisation of each copyright owner (usually the creator) of the components embodied in the film to use their work in the creation and distribution of the film. This is called Chain of Title and is necessary to prove the filmmaker has the requisite rights to exploit the film. Investors, distributors and film competitions usually request proof of Chain of Title.If a filmmaker uses the underlying works in his/her film without permission from the relevant copyright owner, they will be infringing that person’s copyright and could face a court action. The Short Film Competition: Producer’s Guide can be purchased online for a small fee (free for subscribers) from Arts Law.
Creators of copyright also retain certain personal rights in relation to their work called moral rights. Moral rights are the rights to be attributed as the creator of your work, not to have your work falsely attributed to another, and not to have your work treated in a derogatory manner or altered in such a way as to be harmful to the creator’s reputation or honour. The producer, director and script writer all have moral rights in the film, as do the creators of any underlying works. Moral rights must be respected whenever a film is copied, screened in public or communicated to the public e.g. online. However, creators of copyright can consent to waive their moral rights, as is often sought by distributors and film competitions so changes can be made to the film when required e.g. to fit in with different time slots.
4. Working with children
Each Australian State and Territory places its own prohibitions and restrictions on the employment of children that relate to the age of the child, the nature of the work and the authorisation required to employ and work with them. Filmmakers should clearly understand the rules that apply in the State or Territory where filming is being undertaken.
Where the children involved in your film will be nude or placed in a sexual or threatening context laws dealing with pornography and obscenity/indecency may apply. In addition, each State and Territory has implemented criminal legislation prohibiting the use of children for pornographic purposes or the possession and/or distribution of this material.
5. Filming on location or in public places
When filming outside of a studio, filmmakers should generally obtain a location release from the owners of the property. Failing to obtain a location release could expose the filmmaker to liability. Filmmakers will be liable for trespass whenever they enter private land without the permission of the occupier, whether or not the activities undertaken cause any damage, e.g. filming at your friend’s rented house without the permission of the landlord. Filmmakers may also be in breach of local council regulations if they have not sought council approval to film on public property, for example, in the local park, on the beach or in the city. Location releases are part of the Chain of Title for the film and important because funding bodies, distributors and festivals will request proof the filmmaker has all permissions in place to exploit the film. A sample Film Location Deed of Release can be purchased from Arts Law.
Insurance is also extremely important when filming on location or in public areas. Local councils will usually request a copy of the filmmaker’s public liability insurance which covers any damage to people or property occurring where filming is taking place.
The Copyright Act allows buildings, permanent public sculptures and permanent publically displayed “works of artistic craftsmanship” to be filmed without permission of the copyright owner. However, different rules apply to other copyright material that may typically be encountered whilst filming in public, for example, live music performances, billboards, logos and graffiti. A failure to consider whether filming involves copyright material may mean the filmmaker is unable to provide the assurances which funding bodies, distributors and festivals usually require regarding Chain of Title.
6. Filming people in public, cast and crew
As mentioned previously, there is no general right to privacy. There is also no copyright in a person’s appearance or image. Thus a person’s consent is not required in order to film them. However, filmmakers must be careful not to film a person in such a way as to be defamatory, misleading or a misuse of confidential information. See also point 4 above.
Whilst it may not be legally required for a filmmaker to seek permission from their subjects to film them, to avoid any difficulties filmmakers should have every person appearing in their film sign a release agreement, whether they are a member of the public, a cast member, an interviewee or a band performing live. Furthermore, where children are involved in the filming process, both the parent or guardian and the child should be asked to sign the agreement. Sample Cast & Crew Agreements, Performer’s Releases and Interviewee’s Releases can be purchased from Arts Law.
Filmmakers should also consider entering into written agreements with all crew members in order to clarify their roles and respective rights in the film. A sample Cast & Crew Agreement can be purchased from Arts Law.
7. Product placement in films
Because brands are a part of everyday life, filmmakers often want to use branded or recognisable products in their films. However, there are rules to consider when using product placement in films.
Firstly, the Tobacco Advertising Prohibition Act 1992 (Cth) restricts the advertisement of tobacco products in a film or television broadcast in Australia. Thus a moving picture that gives publicity to, promotes, or intends to promote smoking or the purchase of tobacco products is prohibited. An exception is accidental or incidental promotion.
Secondly, the Trade Marks Act 1985 (Cth) prohibits unauthorised use of a registered trade mark as the trade mark of an alternative product or service. The question for filmmakers is whether the products bearing a trade mark displayed in the film are being used as a trade mark. The answer is generally “no”. For example, a character seen eating a “Hungry Jacks” burger or using a “Chanel” perfume will not be a trade mark infringement.
Thirdly, filmmakers should consider whether the logo or label of a product being displayed in their film is an artistic work protected under the Copyright Act, thus requiring permission from the copyright owner to be shown in the film. Artistic works include paintings, sculptures, drawings, engravings or photographs. To use a “substantial” part of an artistic work without permission will be copyright infringement. However, defences to infringement exist for fair dealing and, more importantly, for incidental use of an artistic work in a film or broadcast. For instance, a character holding a can of Coke during a scene is arguably an incidental use of the artistic work (the Coca-Cola logo) in a film.
Finally, filmmakers must have regard to laws concerningpassing off and misleading and deceptive conduct and not misrepresent a connection between a certain product and the filmmaker’s business if there is none.
Once the film is finished
8. Classification of your film
Classification of films displayed, demonstrated, sold, hired, advertised or publicly exhibited is compulsory unless an exception applies e.g. for films created as part of a hobby or showing a live performance. The Classification Board is the authority which undertakes classification of films and computer games in accordance with general principles and certain criteria. The classification awarded depends on the presence of classifiable elements such as violence, sex, language, drug use and nudity, and the Classification Board can refuse classification. Television, radio and internet classification are subject to content regulations by the Australian Communications and Media Authority.
9. Putting your film online
Due to the endless possibilities, ease of use, low cost and communication power, the Internet is an important medium for filmmakers to consider when marketing and distributing their films. However, a number of legal issues must be considered before putting your film online. It is essential to carefully read the terms and conditions of the website host before uploading your film as they represent a binding contract between the filmmaker and the website and can dramatically affect your rights in regards to copyright, licencing and privacy. Additionally, filmmakers have to be aware of the risk represented by the Internet: worldwide access to your work and the size of your potential online audience exponentially increases the likelihood that someone will copy or use your work in a way you don’t want them to.
10. Entering film competitions
Film competitions are a great way of gaining publicity and recognition for your film and indeed yourself as a filmmaker. However, it is very important to read the terms and conditions of each film competition before entering. As mentioned above, terms and conditions represent a binding contract, in this case between the competition organiser(s) and each entrant and they can and often do impact on the filmmaker’s copyright ownership, future licencing capabilities and moral rights.
 For further information see Arts Law’s information sheet: Children in the Creative Process – Australia.ArtsLaw also has State and Territory based information sheets regarding working with children.
 For further information refer to endnote 6.