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What is a Rights and Clearances Log and Why is it Important?

In a perfect world, all the material in your project would be originally produced by you and not subject to any rights restrictions, contracts, or fair use determinations. The reality is pretty much any media project, whether it be fictional, experimental, or documentary in form, will have some elements around which the maker will need to clarify his or her usage terms or rights before being able to publicly exhibit the project without concern about potentially legitimate infringement claims.

Independent makers, particularly documentary makers, have more legally defensible rights around fair use than we might imagine, but in order to include rights-protected material in your work you need to fist properly and comprehensively log any and all instances of rights-contingent material in your work. This includes any still photographs, artwork, sourced audio clips or audiovisual media clips, commissioned score, and any incidental/fortuitous capture instances of music, artwork, trademearked brands and logos, etc.. This logging process needs to happen and all rights matters fully considered and addressed before you lock a project. Having to go back in and make changes to a project’s content or end credits after the considerable time and expense of mixing and mastering can be disastrous.

Some rights issues are obvious. If you are directly adapting a source work under copyright or commissioning a composer or artist to produce original materials for your piece (i.e. animation sequences, artwork, or musical score) you will need to develop a usage contract/release with these artists (see our Music Release Form for a sample agreement).

Other instances are less clear, and a comprehensive log becomes the starting point for you and other counsel to assess the level of risk or exposure you may have with your work. You may need to consult with a faculty member or legal professional to get advice on particular instances listed before taking any action. There are any number of recording companies or publishers who will gladly take your money and issue you a contract for the incidental inclusion of their work in your project that is in fact defensible as fair use. According to experts such as Creating a comprehensive log and going over it with a knowledgeable independent party before taking any action or making any direct inquiries to a copyright holder can save you a great deal of worry, time, and money in the long run.

Down the road, a distributor may secure, or require you to secure, Errors and Omissions (E&O) insurance before exhibiting your work. Like car insurance, an E&O policy will cover only listed parties and listed instances for liability in the event of a litigation claim. The first step to securing such insurance is a rights and clearances log. The log is usually reviewed by an attorney who drafts a risk assessment letter based on this log, assessing the level of litigation exposure to which the project’s content may expose filmmakers and distributors. Logging an instance (i.e. a Mariah Carey song audible in background of an interview scene in a shopping mall) does not mean you will necessarily ever need to pay rights or even contact a rights holder. So resist the urge to omit items for fear they will make your project seem overly complex from a rights standpoint. Any instance not listed in your log will not be covered under the attorney letter or any issued insurance policy, so list everything.

Even if you do not have to procure E&O insurance, having a detailed log provides peace of mind to the independent filmmaker and any potential distributor that the project has been fully vetted for rights issues and that public distribution/exhibition can proceed in without concern or undue risk.

See our Sample Rights and Clearances Logs as an example and template for your own log. 

 

What is Fair Use and When Can I Claim It?

Independent artist and filmmakers are often surprised by how much latitude they actually have to utilize rights-contingent material freely in their own creative work and legitimately claim fair use. It is important to underscore that claiming fair use is not some sort of absolute immunity. Rather, considering whether usage is “fair" involves assessing copyright law (and sometimes privacy law), along with any particular legal case precedents in a particular jurisdiction (laws vary significantly from country to country). Such assessment and precedent helps you to determine if you would have a defensible “fair" usage position were you ever approached by someone with a complaint, request for payment, or legal suit regarding your use of material for which they claim ownership or authorship.

Risk exposure is interpreted and calibrated differently by particular organizations, attorneys, or distributors, so you will need to educate yourself. Knowledge is power. In the United States, considerable work has been done by the Center for Media & Social Impact at American University around fair use, particularly on the use of sources and in generating best practices for journalists, , and . Entertainment lawyers Michael C. Donaldson and Lica C. Callif's  is also an excellent resource, which extends such questions to the realm of fictional media as well. 

To provide some general starting points in assessing the legitimacy of fair usage, ask yourself these questions about the inclusion of copyrighted material:

1. Is there a clear point to the usage? Is it essential for edifying a larger historical/cultural point or commentary being addressed or made in your work?

2. Have I used only what I need? No set amounts are clarified in the law but need to defend “reasonable" clause in any fair use claim.

3. Is this an instance of a fortuitous or incidental capture (i.e. music was playing on a parade float in background; subject was standing in a position where billboard or piece of artwork happened to be in background)? You can see that such fortuitous instances are harder to establish with scripted or fictional work where you have more control over what is in the frame, but inclusion of trademarks may still be defenisble in fictional contexts provided the inclusion doesn't tarnish the trademark or imply an endorsement. 

4. Is the use transformative? Does it add something new to the existing work and transform it in a fashion (via montage, for example) that removes it enough from the original work’s form, content, and commercial viability?

5. Have I performed due diligence to identify and credit artists/copyright holders of any materials not produced by me in my end credits? Even if fair usage is claimed by you and you never contact or approach the author or copyright holder, crediting the work and its author when known, is a big step in reducing risk of an infringement charge, as it asserts you are not trying to claim the included work as your own. Note that you normally do not credit the place where you sourced the material (i.e. You Tube or Archive.org), only the work’s title and credited producers/copyright holders.

These 5 questions are by no means comprehensive, but they, along with the sample log entries included here will get you off to a strong start.