In this Asked & Answered video, I answer a common question about the need for a release from podcast guest interviewees.

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One of the most common questions I get from new media producers, especially podcasters, is “do I really need to get a release from every person I interview on my show?”

I'm Entertainment and New Media Attorney Gordon Firemark, and this Asked & Answered series is where I give answers to common legal questions, so you can take your career and business to the next level.

Stick around and I'll explain… And at the end of this video, I'm going to provide you access to a great free resource you can use to deal with just this situation.

So, do you really need to get a release from everybody you interview?

The short answer is Yes.OK… I know I have colleagues who are going to tell me I'm wrong. So let me just address that. Strictly speaking, it may not be necessary to have a release from your interview subjects. They showed up for the interview, they likely knew they were being recorded, taped, filmed, or whatever, and it's a good bet that they knew you plan to distribute the interview to the public. So, it IS possible to argue that they've given IMPLIED consent. And that's a valid argument… To a degree.

But the problem comes up when the interview subject later on decides to challenge the SCOPE of that consent.

Earlier today, I had a situation in which an interview subject, AFTER the interview, insisted on being given a chance to review it, and to direct the editing of the piece. Since there was no formal release agreement, we don't know the answer to whether this right of approval and editing was promised (the podcaster says it wasn't).

If there had been a release, it'd be much clearer. A release is a contract… And it defines the nature of the relationship between the parties and the scope of their respective rights. It provides valuable evidence of the parties' intent, if there's ever an argument or dispute later… But just as importantly, it serves to prevent those disputes by laying out the framework of things before they recording ever happens.

When you get a release, you actually get several valuable things.

* The Interviewee's agreement to show up and actually GIVE the interview in the first place2. Consent to be recorded3. Your right to edit the “performance”4. The consent to the kinds of uses you have planned for the material.4. A Promise not to sue.

So, here’s a scenario… Suppose years after your interview is done, published, and so on, you get this idea… You want to package up a CD or DVD of your greatest interviews, and sell it as a product. Or maybe you're going to adapt the interviews into a book you're going to sell or use to promote your products or services.

If you don't have a release, you could have trouble. You're taking this recording that was made for one purpose, and re-using it for some other, maybe more commercial purpose. That interviewee might be justified in expecting to be compensated for that subsequent use.

But If you have a release, and it defines the scope of your rights properly, you'll free to do those things without getting any further permission.

A release doesn't have to be a big, formal, 5 page contract. Most releases are 2-3 short paragraphs explaining the intentions of the parties, and signed by the interviewee.

Now some podcasters actually just record the consent before the interview starts… Heck, I do that in my own podcast… That certainly is a manifestation of the consent… But there is a risk… You've got to get it just right… And articulate the scope of those rights fully. That can be hard to do quickly, and for the interviewee, if he or she is even the slightest bit nervous, it'll go by so fast,

In this Asked & Answered video, I answer questions about Model Release.

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In this installment of Asked and Answered, I'll explain the rules for taking and using photographs or footage of people in your blog, videos, and other media.  And stick around 'till the end 'cause I've got a special bonus for you…

My friend Janice is an artist, blogger, and entrepreneur.  She wrote to ask…

I have a question about taking photos of a stranger…or I suppose even not a stranger…. And then posting it to your blog. There is some sort of constitutional right mixed with art mixed with freedom of expression mixed with a violation of privacy. I'd love to know where the line is drawn.

Answer:

This is a question that comes up quite a bit. The truth is, it doesn't really matter whether the person you're shooting is a friend, a stranger, or whatever…  what matters are two things:

First… Where and under what circumstances the photography is taking place, and

Second… how you're using the image or footage.

OK.. Before I go further, I just need to mention that I'm talking about US Law here… Janice is in Canada, where things might be slightly different.  If you're outside the US, check with a local lawyer… You shouldn't rely too heavily on the information you find here… OK… So US law…

You see, people have different expectations about their privacy when they're in their homes, offices, workplaces, or other places where privacy is a component of things… Than they do when they're out in public. This is why the paparazzi aren't supposed to be creeping around in celebrities' backyards, on the studio lots, etc., but they operate pretty freely when out in public spaces like on streets, parks, the beach, and so forth.

The same is true for someone who's not a celebrity. If they're in a public place… they're fair game to be photographed, filmed, taped, or whatever. But if the image capture is happening someplace where the person might have a reasonable expectation of privacy, you'd need their permission to take the photo.

But just because you catch the person out in public, that doesn't mean you're free to use the image or footage in any way you please…

You see, here in the US we have the First Amendment to our Constitution… Which creates, among other things… freedom of speech and of the press… and those freedoms are a big part of this analysis…

Most folks don't realize that under the law, there are different kinds of speech, and the right of the government to make laws that impact speech varies just a bit depending on the purpose of the speech.

True artistic expression, whether it's a blog, a poem, or a novel, along with political commentary, news reporting, and other so-called “editorial” type uses are given a wide berth… And those First Amendment freedoms are very strong.  Laws that abridge them are invalid… plain and simple. That's why publications like People Magazine, the national Enquirer, and programs like TMZ are able to use the footage they capture without anybody's permission.

But speech directed at getting someone to engage in a business transaction of some sort, “Commercial Speech,” is treated a bit differently.   Laws that regulate commercial speech ARE allowed, when there's an important government interest at stake, and the law is reasonably related to that interest.  So, under most states' laws… it's NOT ok to use a photo you catch of someone in a public place as part of an advertisement.

That's what got Duanne Reade drugstores into trouble when they tweeted an image of Katherine Heigl carrying one of their shopping bags out to the world… Ms. Heigl didn't like it one bit, and she sued…   her right of privacy wasn't invaded,

In this Asked & Answered video, I answer questions about Filming the audience.

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A reader wrote in…

I purchased your Podcast Blog and New Media Producer's Legal Survival Guide a while back, and found it to be an invaluable guide to copyright issues in my business. It has become my bible in what to do and what not to do. I have run across an issue in my community that I am unsure of what the right thing to do would be. And I know at the end of your publication you invite questions, so please read the following…

A private local non profit that I am associated with occasionally has concerts and speakers come in as part of fundraising events. A local videographer has approached the organization offering to film these events at no charge to the organization if he can then upload the programs to his business website. His website contains business banner ads from paid advertisers. He also sells DVD copies of these events to the public. That is how he is able to film these events at no charge. In exchange for the free filming and the ability to upload these events to his commercial website, he would then give the organization a copy of the video tapings for their archive.

I understand that the videographer would need to obtain permission in writing from both the organization and the people in the band or presentations being filmed in order to upload their images to his commercial website. But what about audience members whose likeness would also be uploaded to this commercial website. Does the videographer also need to get their permission as well? He says that all the organization has to do is write on the ticket that the event is being videotaped, and that is notice enough to cover an audience member's right of publicity.

Is this true? Are there any other liabilities the organization could incur if they decide to allow this individual to videotape and events to upload to his commercial website?

This will depend on principles of Minnesota law, both concerning right of publicity, and contract (i.e., whether the printing on a ticket forms a binding release).

But, generally, he’s right. If the ticket includes a provision that the event will be videotaped, then it’s reasonable for audience members to expect that they’ll be taped in an

incidental way..… And as long as their likeness is used only incidentally (i.e., a reaction shot), I wouldn’t think they’d have much of a claim. But if the audience member becomes

the subject of the footage… It might be a different story. Likewise, if the image of the audience member is used in an advertising way. (in the body of the content, it’s not likely

considered a “commercial” use…)

I always advise film and video crews to also use a large poster or sign at or near the entrances to any space where the cameras may be facing… Essentially saying “by entering here,

you consent to being filmed, and to the use of your appearance in any way”

Now… If you and/or others object to this kind of thing… Tell the folks who run the concerts. You can vote with your dollars, by NOT attending the events, if you don’t like what’s

happening. If enough folks object, the organization might revoke permission. You could also wear a T-shirt printed with “I DO NOT CONSENT TO BE FILMED”, or make a vulgar gesture

at the camera anytime it’s pointed in your direction. It’ll make it harder to use the footage of you.

More important, though, is that everyone seems to have overlooked the rights of the songwriters and music publishers whose material is being recorded, reproduced and distributed…

If you videotape a band performing music, the folks who wrote the songs are entitled to control how the songs are used. Obtaining those licenses would probably be the videographer’s

In this Asked & Answered video, I answer questions about trademark registration.

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You've spent a lot of time, energy, and maybe money to build a brand for your business. You've landed on a name or logo that captures the true essence of your products and services. It immediately conveys important information that will draw your audience in, and help persuade them to purchase product or service from you. You've got a strong brand, and it's worth protecting.

How would it affect your business if a competitor opened up shop with a similar, or a nearly identical name?

How would it affect you if, as you are poised to expand into a new geographic area, you learned that your brand is already being used by a similar business?

How would it affect you if an existing company already using a similar brand expanded into your market?

All of these things can be avoided if you take steps early-on to protect your brand. The most important steps to take?

Select your brand carefully

Use the brand consistently, as a trademark

Register the brand as a trademark.

So, What is a Trademark?

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.

Brand Selection

Because a trademark must be distinctive, it is important to select your brand wisely. Generic and primarily descriptive identifiers can't be protected by trademark law.

So, for example, calling your product “Lasting Taste Gum”, might be very useful in attracting customers, but it won't be protected… at least not until it has “acquired distinctiveness”, by becoming so popular, so well-known, that the name “Lasting Taste Gum” has a “secondary meaning” with consumers… (This is why brands like “Pay Less Shoes” are protected).

It is better, for trademark protection purposes, at least, to select a brand that is inherently distinctive. Coined, Fanciful and Suggestive brands all fall on the distinctive side of the spectrum and are entitled to protection. Brands like XEROX, GOOGLE, and KLEENEX do little to describe the products and services to which they're attached, but they convey the most important information – source. The consumer knows which company stands behind the products and services marketed under these brands.

What does a Trademark protect?

The owner of a trademark, is entitled to the exclusive use of that brand in the particular category or categories of goods or services the trademark owner sells. Competitors will be barred from using any confusingly similar branding to identify their goods in the same categories. So, for example, a maker of tape and adhesive products would not be able to use “Scotch”, or anything confusingly similar, like “SKAWTCH” or “Scoch”… 3M's “Scotch” trademark prevents this. (The same is true for the plaid designs, also registered as trademarks by 3M)

But, if Mr. MacDougal wants to begin manufacturing power drills, under the name “Scotch” (in honor of his heritage as a Scotsman), he will probably be permitted to do so.

How do I get a trademark?

Trademark rights are earned by using the mark. Generally speaking, the first person or business to affix a mark to goods or services, and advertise and market them, gains the exclusive rights of a common-law trademark. If the use is purely local, then the scope of trademark rights is similarly local. Many states have adopted trademark registration laws, permitting protection to be extended statewide.

But if a business markets its goods or services across state lines, it is engaged in interstate commerce and is thus subject to federal law.

In this Asked & Answered video, I answer a question about licensing sound recordings for use in a live-stage production.

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We all know you need a grand rights license to use a song in a play, but do you also need permission from the record label if you're also using a recording in the stage presentation?

Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

My friend and colleague Mike called me up with a question about music rights in the theatre…

When you perform a song in a stage production, you need a license. It's called a GRAND RIGHTS or DRAMATIC PERFORMANCE RIGHTS license. This kind of license covers the right to publicly perform the musical composition as part of your stage presentation.

But what if the performers aren't singing the song live, and instead you're playing an existing recording?

In the film and television business, this would be called a “Master Use” license… and you'd have to get permission separately from the record label that owns the copyright in the recording (the “Master” as it's referred to.)

the reason is that copyright law provides a bundle of rights.. and among these is the right of the copyright owner to control the reproduction (copying) and the making of derivative works of both the composition and the recording. And, when you make a film or tv show, you are making a copy of these elements, and incorporating them into your film or show, a derivative work.

But in the live stage situation, it's not a reproduction, and you're not creating any kind of new material… so it's merely a “performance”… and while a copyright owner in a musical composition has the right to control public performances of the song, the owner of a sound recording doesn't. So, in the U.S., Copyright law doesn't give a public performance right in sound recordings. (this is a situation that goes back to the early days of radio, and there's a move afoot to change it, but for now, there's no public performance right in sound recordings

So, if you're putting on a play, and you're using music, you need to get Grand Rights licenses from the music publishers who own the compositions, but not from the record companies that own the masters. At least until the law changes…

 

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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

In this Asked & Answered video, I answer a question about separated rights.

 

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Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

The Separated Rights provision is One of the most frequently misunderstood parts of the writers Guild contract so stick around… I'll do what I can to explain.

What are Separated Rights?

Separated Rights are a group of rights that writers of original material receive under the Writers Guild of America Minimum Basic Agreement. Normally, when a Writer's Guild member is hired to write an original screen- or teleplay, he or she is an employee, so the material is a Work Made For Hire, with the copyright in that screen- or teleplay being owned by the employer.

But, the WGA negotiated for certain of the rights to be “separated” out and conveyed instead to the writer. These are the Separated Rights, and how they are handled is a little different between television and films.

Basically, a professional writer (union member) who writes an original script is entitled to keep the dramatic and publication rights in the material, as well as the right to do a rewrite And to be paid for sequels. Under certain scenarios, the writer can also re acquire the rest of the rights.

In television, the specifics are slightly different, but the same basic principles apply.

What this means is that if you're planning to produce, let's say, a stage musical based on a film, you might have to deal with the writer AND the producer of the movie.

“Why?” You ask, “would I still have to make a rights deal with the movie producer?” Well, unless your adaptation adheres strictly to the script as written by the screenwriter, it probably incorporates elements from the film, which aren't in the script. Directors, scenic designers, wardrobe, special effects, and music are all material that are protected by copyright as well, and, except in really unusual situations, belong to the producer.

So, separated rights, then, is really a way to provide the writer with some leverage, and a “second bite at the apple” if a script turns into a movie so successful that it is later adapted for the stage, or published, and so on.

If you're looking at a situation where this comes into play, you'll want to consult your entertainment lawyer, to make sure you're getting all the rights you need.

I hope you like these asked and answered videos, and that you'll subscribe to the channel so you don't miss out on them as they come out.

You can submit your question at https://firemark.com/questions

 

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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

In this Asked & Answered video, I answer a question about whether you need to renew copyright.

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A reader wrote in with a question about copyrights needing to be renewed.

Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

I'll answer the renewal question, and explain how copyright duration works, in just a moment.

So, the question posted in the comments on my blog asked whether copyright registration needs to be renewed every year.

The quick answer is no. Copyright law doesn't require (or permit) any renewal. Once the term of copyright protection expires, the work automatically falls into the public domain.

So, how long does copyright protection last?

Well, first let me explain when copyright protection BEGINS.

You see, when you create an original work of authorship… that is, original expression of ideas, and you fix or record that expression in some tangible form, so it can be reproduced and so forth… that work is automatically protected by copyright.

So… from the moment you set pen to paper, press record on the video camera or whatever, you own a copyright in what you've created.

And that copyright will protect your work for a good long time… 70 years, in fact, after you die. Here in the US, and in most other countries around the world, copyright duration is Life+70 years. There are some other countries where it's Life+50, but for most it's 70.

Works created as works made for hire, or anonymously or under a pen-name, are protected for 120 years total, from the date of creation, or 95 years from the first publication… whichever occurs first.

So that's the rule for works created today, and anything that was created after 1977. Works created before January 1, 1978 fell under several different schemes, and they had to be registered, and that registration DID have to be renewed, usually after the 28 years. But the duration of those copyrights is subject to a fairly complicated set of rules, so it's best if you’re dealing with questions about one of these works, you consult an entertainment or copyright lawyer who can help you out precisely when the works fall into the public domain.

 

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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

In this Asked & Answered video, I answer a question about whether we need appearance releases when shooting documentaries or more commercially oriented stuff.

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Jamie is a documentary filmmaker who called to ask me about the need for appearance releases.

Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.

So, Jamie does documentaries. And, that being the case, most of what she's producing will likely fall under the category of “newsworthy”. And she stated her belief that she doesn't really need to get releases from the people she shoots… and she's right, but she should still get them.

Here in the U.S., the Free Speech and Free Press principles in the First Amendment basically allow journalists (which includes documentary filmmakers) to report on things that are newsworthy, even without the formal permission of the people who eppear in their films.

But when I advise filmmakers, whether they're shooting documentaries or more commercially oriented stuff, that they should always get an appearance release signed by people who appear in the piece.

Here's why:

* Clarity.

One of the most common problems that comes up is that someone who voluntarily participated in the shooting, later claims that they were duped into doing so by false promises about where and how the project is going to be distributed or released. Getting a signed, written release eliminates this, because, if it's written right, it'll include the right to use the performance in any way, anywhere, any time… no restrictions. It'd be pretty hard for the person, after signing something that says “all media, all territories, in perpetuity” to claim they weren't aware…

* Eliminates legal costs later on.

Let's face it. Anyone can sue anyone, over anything, anytime. And defending against lawsuits is expensive. VERY expensive.

But, if you've got a contract that outlines the parties' rights, that cost of defending against bogus claims will be much smaller, since that contract will be evidence supporting your motion to dismiss the case. And, if the release is written right, those costs and expenses can probably even be shifted over to the other side.

* Exhibitors want releases

Because they want to benefit from the reduced legal exposure and expense we've already discussed, Studios, networks and others who will show your film make it a practice to ask for releases, at least from “key” participants. And, it's always harder and more expensive to get releases after you've finished shooting, and there's a money-deal being offered, so it's best just to get the thing done when you're shooting.

* Insurance Coverage is easier to obtain.

I've never met a distributor that didn't require, or at least prefer, that the producer of the film provide E&O insurance. E&O stands for Errors and Omissions, and this kind of insurance coverage is what pays for the defense if the there's ever a lawsuit over the content of the film. Getting E&O coverage is challenging for all filmmakers. While some providers will rely on your lawyer's legal opinion letter stating that release aren't required, others absolutely require releases… and since that lawyer letter will probably cost you more than getting the release (even if you have it drawn up by your lawyer… which you should) … the answer is pretty obvious.

 

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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter.

In this Asked & Answered video, I answer a question about whether a podcast co-host who has left the show can get old episodes taken down from the internet.

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Hey, if you like these videos, please subscribe. It's easy. And by all means share, Plus, like or tweet these on your favorite social networks.

If you've got a question you'd like me to answer… head on over to https://firemark.com/questions.

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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for viewers'’ detrimental reliance upon the information appearing in this feature.

 

In this Asked and Answered video, I respond to Guy's inquiry about whether permission is required for a fan film based on a video game.

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This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.

Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting https://firemark.com/minicourse