During my time at the Las Vegas Film Festival I have heard many filmmakers discussing the concept of “guerilla filmmaking”. Unfortunately the economic realities of financing an independent film sometimes necessitate cutting corners and using unique approaches to saving money. I won’t get too far into details about the actual techniques used in guerilla filmmaking, but rather issue a few words of precaution if you are venturing into that territory.
Foremost, understand that if your film does not have a complete and properly documented chain of title you run little to no chance of ever getting your film distributed. Period. While I am sure that there have been exceptions in the past (there is always an exception to every rule), from an attorney’s perspective I would never advise a client to distribute a film that doesn’t have a proper chain of title. Oftentimes filmmakers and/or producers think that this will not be an issue if there movie is garnering critical acclaim and legions of fans. Wrong. This only complicates the problem as it makes the film a bigger target. If someone’s copyrighted work is used in a film without permission, and that film is some industry “Cinderella-story” that makes millions of dollars, then the copyright holder whose material was used without permission will only seek more money in the inevitable lawsuit.
Some people might take the approach that because they are not seeking distribution for a film that they can take a lazy approach to chain of title issues. If you are a professional filmmaker seeking a career in the industry you should absolutely not take this approach either. Allow a short hypothetical to prove my point: imagine that you are a world famous and financially successful filmmaker. At the beginning of your career you wrote and directed a short film featuring your buddies. Since you were just starting out you failed to get clearances from them, you used some famous rock music without permission, and the characters were eating from fast food labels and drinking soda from trademarked cans throughout the film. Flash forward years later, and the film sees the light of day and becomes a viral sensation. Perhaps you even make a little money off the publicity. Can you see the potential legal consequences here? Even though you were a “nobody” then, you are “somebody” now and a clever intellectual property attorney can find a way to bring a lawsuit against you (or more likely your company) for the previous unauthorized use of copyrighted material. Whether they have a strong case is beside the point, as any attorney will tell you that weak cases can win and strong cases can lose. Regardless of the strength of the case it will cost you money to defend a lawsuit and you may end up settling out of precaution, which is also expensive. So remember that the small budget indie short film you make today could be the potential lawsuit skeleton in your closet tomorrow.
So make sure your chain of title is proper, even if it’s a simple short film. (NOTE-Student films have a little bit different set of circumstances and a little bit more protection, and I’ll probably explore that in a later post). While I usually never recommend utilizing contracts downloaded from the internet they are still better than nothing. If I were the attorney for a distributor sitting in a meeting, and a filmmaker prevented me with a complete set of chain of title forms that seemed generic or even homemade, I would advise my client that the most important thing is that they EXIST and that they are SIGNED. At that point at least an attorney has something they can work with, and a clever attorney can make an argument that the proper conditions for an enforceable contract exist. Even the best attorneys have little to no chance of doing this if you have no paperwork signed.
One of the techniques I have heard mentioned this week involves filming a movie in someone’s home in order to alleviate the need for a permit. Even this has potential pitfalls. For instance, make sure do a clean sweep of the house to make sure that ANY material that is potentially copyrighted and/or trademarked is removed. The obvious items would be soda cans, food labels, and clothing labels, but your search should also extend to the walls. People often hang pictures, posters, etc and completely forget that they are there. You may have bought a $5.00 painting of a beach to hang in your bathroom, but if that painting is a copyrighted work and you don’t have clearance for it there could be problems. The same goes for artwork, sports logos, or any trademarked work. Even if you personally painted a portrait of a public figure, there are potential legal issues regarding that figure’s image and likeness. The safest bet is to clear the walls or use photographs that you have taken yourself.
Also, make sure that any and all persons that appear in your film have signed the proper consent waivers. Try to do this BEFORE they appear in a scene, and especially if you are using extras who can slip into the proverbial wind make sure this is done and the paperwork is in a safe place. Many filmmakers have discussed using friends and family members in their films. My response to this is great, then you should have no problem getting them to sign a consent form. Telling a potential distributor’s attorney not to worry because “it’s my friend he won’t sue me” will not put an attorney’s mind at ease. As attorneys Murphy’s Law is our daily reality, and our job is to insulate you from the worst possible liability scenarios. Most attorneys have seen family members and friends suing each other, nasty divorces, etc. Failing to obtain a proper consent form because a person is a family or friend is a glaring oversight that will raise red flags.
Finally, in the event that you do film outside without a permit (as a sworn attorney I cannot, of course, officially advocate that you do this), be mindful of the same copyright/trademark issues presented above. Whether you have a permit or not be mindful of any billboards, signs, etc. that might contain trademarked images or copyrighted work. Even something as innocuous as a passing car with music coming out of an open window can bleed into your sound mix and create a problem.
Just because you are using “guerilla” techniques does not mean you should throw caution to the wind. Asking someone to sign a piece of paper costs nothing. Likewise it is free to take a moment before every shoot to assess any potential copyright/trademark issues. Even obtaining contracts can be cheap and or free thanks to the internet, and an accordion folder to keep all your chain of title paperwork is probably under $20.00. This is a small price to pay for the potential upshot of a distribution deal and to prevent a possible lawsuit in the future.
If anyone has further questions, comments, and/or suggestions on this post feel free to message me @LawyerRussell.