04 – Legal security
Basic legal knowledge will allow you to make informed decisions in the making of your film. Violating relevant laws — intentionally or unintentionally — could require you to stop filming, create an obstacle to completing the film, or result in the need to pay expensive damages.
The truth, however, is that you cannot expect to be an expert on legal issues and you may need to seek the help of legal counsel to fully understand the risks you're taking.
The primary areas of the law that filmmakers should be familiar with are defamation, privacy, public order, and copyright, and the laws that govern certification and screening.
Defamation is any false information that harms the reputation of a person, business or organization and includes both libel and slander. In general, libel refers to defamatory statements that, through publication or broadcast, are seen as more permanent. Slander refers to verbal defamatory statements that do not have the same lasting presence. Plaintiffs are generally required to prove that the information shared was untrue and that the intent in sharing it was malicious. Committing to accuracy and fairness is a strategy for averting accusations of defamation.
Privacy laws vary, but broadly stem from the legal right to have control over one's personal space, body, and data. You should be aware of these laws and consider them in regard to participant consent and the decision to film undercover.
Public order laws, which also vary geographically, aim to ensure that public spaces are peaceful and do not instill the fear of harm. They cover disturbances such as riots, public fighting, and even blocking of roadways and may, for example, prevent you from filming a protest or utilizing the footage.
Copyright laws enable creators and authors of original works to retain or control the rights to copy, sell, and share their work. These laws protect you as filmmakers, but also must be navigated as you consider utilizing archival footage or other materials owned by others in your film.
We've gathered information to enable you to dig deeper on these laws and to protect yourself if and when you are accused of violating them. Follow the links at the top of the page to dig deeper.
Assess
Be aware of the potential legal risks you face. For example, while you may be inclined to dismiss the potential for lawsuits, acknowledging the point of view of your participants when thinking about defamation and privacy could save money — and your film.
Using our checklists will help you to assess the risk, as well as the resources you will need and are available to you.
Mitigate
From the outset — while you're in development — identify legal counsel. Include it as a line item in your budget, even if you're ultimately able to secure pro bono support. This is not the line item you can exclude; it could cost you too much, including your film — and your freedom.
Undoubtedly, legal counsel will be helpful if you're in trouble, but they'll be even more helpful in ensuring you steer clear of it in the first place.
When you've identified a lawyer, be clear with them about your goals, as well as how you want to achieve them. Be honest and transparent to increase the likelihood of success.
Of course, the law can also be on your side. For example, learn about the access to information laws where you are filming to request information from governments and authorities, who may be required to comply. “Fair use” exemptions can provide a justification for using copyrighted footage and journalists can make the argument that sharing covert recordings is in the public interest.