One of the biggest areas that filmmakers starting out often need guidance with is rights and clearances. Knowing whether you have retained all copyright in your film and actually hold the rights to screen it at festivals or for wider distribution can be tricky and complicated.
It very important to understand rights and what rights you may have in your film before getting your film out there to the world.
Flickerfest is pleased to be working with the Arts Law Centre of Australia who have produced a number of essential contracts that cover off all of the areas that you will need to consider when making your short. Their low-budget filmmaking contracts are affordable and contain detailed information. See below for information from Arts Law.
The Arts Law Centre of Australia is the national community legal centre for the arts. Arts Law has a free telephone advice service and a low cost document review service available to artists and arts organisations, including those working in film and television. Arts Law can advise these clients on arts-related queries including contracts, copyright, defamation, insurance and business structures. The centre also has a wide range of sample film and video contracts available for purchase on it’s website at: https://www.artslaw.com.au/sample-agreements/archive/cat/film-tv/
Questions that you should ask regarding your legal rights in a short film are:
Generally the copyright owner of a film is the producer and director, who often can go into a partnership agreement in order to share the copyright. If a third party was involved or invested in your film either at pre-production, production or postproduction stage such as ScreenWest, the NSW FTO, Screen Australia, etc then they may also share the copyright.
Often film schools that provide the educational and post-production facilities can also retain copyright so it important that you check all contracts carefully to see what rights you have maintained.
If you have signed any contracts for your film to be shown at a festival, for broadcast or on-line etc you should check all the fine print to see what rights you have given away. See our Distribution page.
All areas in your films such as music, actors, script, content and locations require clearance before you can screen your film in public.
Generally this involves getting clearances in writing from all participants during the pre-production and production process. It’s much easier to get clearances at this stage rather than retrospectively once the film is completed as once you have completed the film it may be difficult/expensive to go back and clear work.
The most common area where this comes up is licensing music. Often people love the music of a popular band and want to use it in their film but cannot afford the massive licensing fees that are incurred when clearing the music for commercial purposes.
Sometimes filmmakers choose to clear the music for festivals only as this is a non-commercial screening and is much cheaper. This could be a problem though if you try to clear the music after your film has experienced festival success and broadcasters are interested in purchasing your film. If you have not cleared the music for your film you cannot screen it on TV and DVD and in particular on-line as these are all considered commercial screenings.
If you can, use original music with rights you have cleared or purchased rather than published music than may involve heavier licensing fees.
It's really important to sign a contract with all actors in your film and if possible to clear their performance for all theatrical and non-theatrical screenings for all territories in perpetuity.
Acting rights can be broken down into non-commercial rights such as festivals – which are cheaper to clear and commercial rights which include clearance to exploit those rights across all mediums, such as TV, DVD and online.
Once again it is cheaper to clear all rights in the beginning before the film is completed, as it is more expensive to go back and clear rights in the film in retrospect.
In Australia the MEAA has standard contracts that cover actors rights. You can also use the Arts Law contracts listed above. Go to: www.alliance.org.au
Often films schools will negotiate with MEAA to make actors rights affordable for student productions.
If your script is an original work of fiction then you must make sure you have a written contract with the writer to use their script for the purpose of making a short film and that they have been paid for their services. This can be a token fee but you must be authorised to exploit the work in a contract. You must also make sure none of the characters resemble an actual individual (living or dead) and you should not be able to identify real people or real events.
Adaptations from fiction/ short stories are even more tricky and you must make sure that you have permission or have optioned any original story or novel from all authors of the work that you are basing your script on before proceeding.
You should research if work based on a famous author is in the public domain i.e. Shakespeare or in what country the copyright laws apply for the work.
In Australia for most material, copyright lasts for 70 years after the end of the year of the creator’s death, or 70 years from the end of the year the material was first made public. Material protected for 70 years after first publication includes works first published anonymously or under a pseudonym (where the author cannot be identified), works first published after the creator’s death, recorded sounds, and films made since 1 May 1969. There are shorter periods of protection (50 years from making or 50 years from first publication) for material made for, or first published by, a Commonwealth or State government department or agency. (Source: Australian Copyright Council Website) see www.copyright.org.au regarding works in the public domain.
If easily identifiable art works, (photos and visual art), book titles, TV clips, radio, or a companies logo or trademark appears in your film then you must seek permission from the copyright holder in order to use this item.
If you want to use someone else's footage in your film such as a music video clip or feature film or news footage you'll need to obtain permission from the company that presently owns the film or video clip and pay a licensing fee. Licensing of this material is usually highly expensive and can be up to $5000 per minute, which is generally outside a short filmmakers budget. Often short filmmakers can choose to use clips of their own films on the TV in the background or license one of their friend’s work in order to get around this expense.
You need to be aware that most locations in which you shoot your film i.e. outdoors in public places such as Bondi Beach require a location agreement with a local council. Similarly if you are filming in a National Park or Crown reserve you should always try to have a location agreement in place.
Generally if you are filming in a public place that comes under the management of any government authority you will have to have public liability insurance.
Organising a crew and actors and basing your script on a location only to have your shoot shut down because you don’t have permission is tedious and expensive so better to shoot where you have permission. Location agreements should allow you to not only film the place but also grant you the right to rehearse and take stills for publicity.
If using anyone else’ s property its important to outline in the agreement the hours that you want to use the location, whether there is a fee involved, the right to incorporate the location in your film throughout the world and that you will cover any damage to the location if it arises.
For examples of agreements for clearances listed above please go to: www.artslaw.com.au
Note: This information listed above is a guide only and should not be considered legal advice.