A week or two back, Filmmaker Jordan Clarke shared some of his personal nightmares on his own film regarding chain of title and how it nearly killed the production dead – you can read that post here. I asked hi to expand into a bullet list and here it is…
Top 5 DIY Filmmaking Mistakes You Might Be Making
We all know that you can’t have your main character wearing an Adidas tracksuit. We’ve been taught that we must secure the script, actors and music licenses before we can exhibit our film. Unfortunately, CHAIN OF TITLE runs much deeper than that if a filmmaker ever hopes to have their film distributed or broadcast. I’ve outlined the top 5 mistakes that I see almost every DIY filmmaker make. To keep the list short, I will assume you are making your feature film under a limited company with production insurance to protect yourself, the cast, the crew, equipment and footage. You are doing that right? Or did I just turn this ‘Top 5’ into a ‘Top 7’?
First, what is ‘CHAIN OF TITLE’ ?
As part of your deliverables to an interested distributor, broadcaster, or purchaser, you will need to acquire Errors and Omissions Insurance. In order to do this, you must have a clean CHAIN OF TITLE for your film. There are hundreds of copyrights being created on a film set. The cinematographer, actors, director, make-up, FX and wardrobe are all creating individual copyrights. It would be a laborious process to get permission from all of them every time the film was exhibited, distributed, or sold. This is why everyone on your film must sign an agreement that assigns the copyright to the production company. It also requires you to secure permission to show any trademarked logos or brands.
Congratulations, you secured the dive bar that you always knew would be perfect for your shoot. Unfortunately, all those neon signs that make it so perfect can’t be used. Although you secured the right to use the location, you still need to secure the rights for all the trademarked logos and brands in the background. Why? Because you are creating a fictional story and those brands should be given the choice as to whether they want to be a part of it or not. Unless you have the $ to hire a lawyer, I’d recommend not treading into ‘fair use’. You have two options: First, talk to the legal department of those companies and ask for permissions (you’d be surprised how many say yes when provided the context). Or, create your own ‘fake’ logos and signs.
2. CAR LOGO:
You own your car, so you should be able to use it for whatever you want right? Wrong. Again, you are creating a fictional story and ‘Hyundai’ should be given the choice as to whether they want to be the brand of choice for drug addled killers. Fictional is the key part here – if you were shooting a documentary and a drug addled killer actually did drive that car, you’d have a better argument. Again, get permission (I know filmmakers who have been given permission after providing the script). CAR LOGO part duex: Get permission from the legal department at the company headquarters, not your local car lot.
3. BUSINESS NAMES:
So you are doing everything by the book – you have production insurance and you’ve negotiated a permit to shoot on a city block. While the permit gives you the right to shoot on that block, it does not give you permission to film all the businesses that are on that block. It is prudent to speak to the businesses first and ask them for permission to include their signs in your scene. It is generally not a problem when dealing with local businesses, so select a block that isn’t littered with ‘Pizza Hut’ and ‘Starbucks’. There is a difference between shooting without permission in middle of nowhere and shooting on a city block in the most litigious country in the world (USA).
4. MORAL RIGHTS:
While most contract templates found on the internet assign the copyright of any work produced to the production company, very few deal with ‘waiving’ the moral rights. Copyright deals with the ownership of the work, while ‘moral rights’ deal with how the use affects the integrity of the artist’s work. Why is this important? I saw , first hand, a director (who refused to waive his moral rights in his contract) stop distribution of a 2.5 million dollar film because he felt the edit affected the integrity of his work and his reputation. There could be arguments made either way, but the issue was settled out of court and the film shelved, never to be seen. It is important that everyone on your film waives their moral rights to enable the distributor to edit for time, modify it for exhibition on flights, or to meet censor regulations in foreign territories.
5. TITLE CLEARANCE:
You have 5000 Facebook fans, 10,000 followers on Twitter and your Tumblr posts are being re-blogged by the dozens. You get into a film festival and a distributor is interested but requires a title clearance report as part of the deliverables . You are cool with that because you already searched IMDb and Google and can safely say there is no other film called “WordPress”. While this example is extreme, there are hundreds of companies who would be willing to file a law suit claiming your title could cause ‘consumer confusion’. Again, the idea is avoidance of issues, not winning or losing. A title clearance should be performed before you go into production.
What can the Independent and DIY filmmaker do?
Educate yourself. Why limit the possibility of your film reaching its maximum potential audience? I know there is a gaping hole in accessibility to easy-to-understand information about CHAIN OF TITLE. To fill this, I plan on launching a free filmmaking resource, chainoftitle.ca, which will provide the information needed to secure, assign, maintain and protect the copyrights in an independent film – whether you are the one securing or the one assigning. We will include animations with explanations by independent filmmakers and entertainment/ copyright lawyers.
Our lndiegogo campaign runs from APRIL 15th – June 01, 2013 to raise the funds to do this.
The resource will launch in NOVEMBER 2013.
Help spread the word:
Great stuff Jordan, thanks for sharing.
Onwards and upwards!
My movies www.LivingSpiritGroup.com
My Facebook www.Facebook.com/ChrisJonesFilmmaker
My Twitter @LivingSpiritPix
When I was in production on my project I took a great deal of pains to consider the rights of my crew and viewing audience. On locations I contacted the owners and got contracts, stating what I could do or not do. Even when I shot in my home I tok time to review the house many times to check for logos or products. I am so happy that you wrote this, but even though I had attorneys involved throughout the process I am always weary that I might have left one stone unturned.
Thank you so much for sharing this very important information with us.
Tahiera Monique Brown
Thanks for the feedback Tahiera. I am sure your due diligence paid off. An E&O Insurer doesn’t know what you own or who your friends are, so getting everything in writing is always the best policy. Fantastic work!
Hollywood Script Research can provide productions with clearance reports that will outline the legal risk to errors omissions insurance providers and distributors. Our clearance reports can lower your E&O premiums and help productions stay clear of lawsuits.
We also provide title reports with full research opinion to help your chain of title.
We offer excellent flat rates and a 2-3 business day turnaround time.
Great, thanks for this. Does the same apply to short films for festivals re title clearance, moral waivers etc /
Festivals will still accept films that do not have a clean chain of title, but if you wish your film to be distributed, then absolutely it applies.
Unfortunately films get stopped dead at festivals when an offer of distribution or broadcast is made. I touched on this in Part 1.
Hope that helps.
The UN’s World Intellectual Property Organization (WIPO) publishes a free guide to film copyright for producers and distributors:
It’s designed for filmmakers who might not have access to legal assistance and is written in a clear, easy-to-follow style.
Thanks Rob! There are lots of really great PDFs and books on the subject. Now if we can just get this generation of artists reading 😉 I decided to create a visual resource so filmmakers can learn about avoidance as opposed to winning or losing. Lawyers generally write their information in terms of winning/ losing if a problem arises. I am hoping my resource helps filmmakers completely avoid problems. The cost of going to trial exceeds the average DIY budget and legal fees and E&O Insurance premiums can rise exponentially if everything isn’t super clean.
Great resource Rob
Chain of Title and Clearance are important things many indie film makers don’t consider, esp. ‘first time’ Producers. This article highlights their importance in clear understandable dialogue anyne can understand and I thank you for writing it!
Thanks Peter! Huge thanks to Chris for posting it too. He’s been a really amazing support from the start.
Jordan and Chris, thanks so much for this post. I really hope the Chain of Title project gets funded. Mind if I ask some follow up questions?
Would I be in the clear using a car without permission as long as I DON’T SHOW the car logo? So if I avoid getting the little logo on my steering wheel in my shot am I all good?
And would that approach allow me to film an ultra recognizable apple laptop? I could shoot the laptop in profile, or slap a sticker (of my own design) over the apple logo.
Lastly, like trademarked names outside of a location, what about products in a bathroom? It is okay to simply turn products around so there are no discernible logos showing, or can the BACK of a bottle be problematic? You know those big colorful bottles of Dr. Bronner’s soap? Even if I flip the bottle around I’m sure everyone will still know it’s Bronner’s because of the recognizable design….but because it’s flipped and I’m not showing the logo would I be in the clear?*
*of course I know I can shelve it, but if the back of bottle aren’t okay i’m going to have an empty bathroom…
Hey Chris, hey Jordan! I’ve got a question concerning the all persons fictitious disclaimer. If I were thinking of filming a fictionalized version of real events, where’s the line? Is having a character who shares many characteristics with someone you know in real life okay? (Assuming they would refuse to sign away their rights, and be opposed to the project.)