I can’t tell you the number of filmmakers I run into who have put their life savings into their film, only to find they can’t sell it. Not because it isn’t any good… but because they didn’t get the proper clearances before they shot.
I’ve talked a little about clearance before, but it boils down to this:
You can’t put anything in your film that you don’t own, or control the rights to. Period!
That painting that hangs in the background of a scene, the family portrait that sits atop a desk, the product that one of your actors is holding… all of these need to be cleared.
The artist who painted the painting likely owns the rights, and you could be guilty of copyright infringement by using it without permission. Same with the photographer who took the family portrait (yes, even if it is your relatives in the photo, the photographer likely owns the rights.)! And to be really thorough, you will need releases from each person featured in the family photo… that means uncle Bob needs to sign off on it.
You will also need to clear the usage of any products in your film, and context is often a very important consideration. If your film depicts something negative happening in, around, or as a direct result of, a recognizable product, you are likely to run into clearance issues.
And it doesn’t stop there… character names are equally as important. A filmmaker can open themselves up to all kinds of lawsuits, including defamation of character and invasion of privacy, etc. Say you name the villain in your story “John Doe,” and he does unsavory things… and there just happens to be a person of the same name, in the same area that your film takes place in, with the same profession… you might be at risk for a lawsuit.
I know, what are the odds of that… but it happens more often than you think.
So, what does all this mean? Well, if you are not careful, your risk of a lawsuit may be high, in which case you may not qualify for E&O insurance, or your rates may be exorbanant. It’s like trying to get health insurance with a pre-existing condition.
What is E&O, you ask? Errors and Omissions… it’s basically a media liability policy, so if someone does bring a lawsuit, the insurance company will pay for they defense and any settlement.
No distributor or broadcaster will touch your film without it. Let me say that again… NO DISTRIBUTOR or BROADCASTER will touch your film without it. It will usually be requested as part of your “deliverables.” (I will talk more about deliverables in an upcoming article – but in short, it’s all your master versions of the film that the distributor will use to make DVDs, etc.)
It is possible to negotiate that the distributor pays for E&O, but your film still needs to meet the clearance requirements. Enter the script clearance report…
There are a handful of approved clearance agencies that will go through your script and point out clearance issues, and make suggestions that can save you thousands of dollars later. They will check every character name against a national database, and let you know if there are any conflicts.
But it’s not cheap! Script clearance can run anywhere from $1000 to $1500… and it usually takes a week or two. Once you have a final shooting script, get the report done BEFORE you shoot. Have your attorney look over the report to make any final suggestions, and give you the go ahead.
Look for my upcoming book, where I go over all this in detail, list several clearance agencies, and tell you simple things you can do to improve your odds of staying in the clear, so to speak. Keep in mind, I am not an attorney, and this is not legal advice, so always consult with an experienced entertainment attorney first.
So, save yourself some heartache, and clear your script!
