10 Myths Every Documentary Filmmaker Should Know

The world of filmmaking abounds with misconceptions, perhaps most significantly in the documentary film realm where filmmakers must grapple with issues such as fair use, defamation, releases, and privacy concerns. Here's an overview of some common myths and some guidelines to think about. Of course, every fact situation is different and must be carefully analyzed.

1. If a person interviewed in my documentary says something defamatory, I, as only the filmmaker, am not liable for publishing it. Not true. The filmmaker can be liable for publishing a defamatory statement made by an interview subject. That is why fact-checking and investigation and assessment of sources and their reliability is so important.
   
2. I don't need to worry about fictionalizing things about a subject in a docudrama, because I have “dramatic license” to do so. Be careful. While there is dramatic license to fictionalize scenes to some degree, the fictionalization should not be defamatory as the viewer doesn't know what is fictional and what is true, risking a defamation claim from the subject. In addition, if the fictionalization is significant, there could be a right of publicity issue in using the subject's name and likeness without permission.
   
3. I need “life rights” in order to make a documentary about a celebrity or other public figure. You don't. Life rights (a bundle of rights which may include rights of privacy and publicity, and waivers of potential defamation claims) are not required to do a documentary about a public figure, as information about public figures is generally considered newsworthy and in the public interest. But getting those rights can sometimes be advantageous. Insurers, distributors and networks are sometimes more comfortable having them, and having them might give you access to materials or anecdotes you wouldn't otherwise get.
   
4. As long as I use less than 30 seconds of a copyrighted work, it's fair use. Not true. Fair use requires an analysis and weighing of four specific factors to assess whether the defense is available. While the amount used is a consideration, an arbitrary percentage or number of seconds is not a determinative factor.
   
5. If someone posts it on social media, then I can use it without permission. Nope. Copyright protections still apply even if someone has posted a photo, artwork, a song, a poem, etc. on social media. To use, you should seek permission or have a lawyer analyze whether the fair use defense is available.
   
6. If I credit the copyright owner, then I don't need permission. Not true. Giving the copyright owner credit doesn't make an otherwise infringing use a fair use.
   
7. If music happens to be playing while I'm filming, I don't have to worry about clearing it because it happened in “real time.” Not true. There is typically no fair use argument for music which happens to appear in a documentary. If it's only a few seconds, you may have the defense that the music was only incidental. (There is an incidental/de minimis defense to copyright infringement.) But any significant use requires a license or should be removed or replaced.
   
8. If photos and artwork happen to appear in the background where I'm filming, I don't need to worry about it. You might. Sometimes, photos and artwork are truly incidental and fleeting (and thus subject to the incidental/de minimis defense). But anytime they are lingered on, a focal point, or used as the backdrop for an interview, there is a risk of copyright infringement if you don't get permission.
   
9. I can't show trademarks or brands unless I clear them. Good news. Trademarks, brands, and logos naturally appearing in “real world” footage do not generally need to be cleared. But products that are intentionally placed in footage or otherwise used in a manner suggesting sponsorship or endorsement may need to be cleared.
   
10. I can freely use photos and footage given to me by the subject of my documentary because the subject owns them. Not necessarily. Possession does not equal copyright ownership. The subject may have a collection of photos, for example, that were taken by a professional photographer, or video footage from a television show appearance. That material would either need to be cleared by the copyright owner or analyzed for use pursuant to one of the copyright infringement defenses.

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