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In November 2001, one of the largest underwriters of E&O Insurance
revised its application and clearance procedures resulting in broader
requirements for releases. If you’re using old releases that
have not been vetted by a clearance lawyer, you may want to have
them checked. Using good releases at the beginning of a project
is one place a filmmaker can save himself or herself a lot of time,
money and aggravation. The points set out below are only a checklist
of some issues releases should cover and is not the actual language
that would appear in the release.
INDIVIDUAL RELEASES – are required for both fictional and factual
productions where the names, faces and likenesses of any recognizable
living person are used. This release is unnecessary if a person
is part of a crowd scene or shown in a fleeting background. Individual
releases should include the following:
1. The right for the filmmaker to record the individual’s name,
likeness and/or voice (the “Recording”) and to use and
exploit the Recording in any manner that the filmmaker deems appropriate.
2. All rights (including copyright) in the Recording must be assigned
to the filmmaker and any moral rights the individual may have in
the Recording must be waived.
3. The individual must grant the filmmaker the right to edit, adapt,
modify, add to and/or delete material, and juxtapose any part of
the Recording with any other film, change the sequence of events,
or any questions posed or answers given, fictionalized persons or
events, or make any other changes the filmmaker deems appropriate.
4. The individual needs to represent and warrant to the filmmaker
that the Recording does not violate any rights of any third party
(eg. defamation, invasion of privacy, false light, copyright infringement)
and that only the permission of the individual is required to make
the Recording. If the individual is a minor the release must be
legally binding. The individual should agree to indemnify and hold
harmless the filmmaker for any breach of these representations and
warranties.
5. The filmmaker must be able to assign the release without the
permission of or notice to the individual.
6. The individual should release the filmmaker from all claims or
actions against the filmmaker resulting from any use of the Recording
and the release should not be subject to revocation or rescission
for any reason.
LOCATION RELEASES – are required for the use of any distinctive
location. In addition to most of the issues set out above, a location
release should include the following:
1. A description of the location (the “Property”). This
is usually the address of the Property or the name that describes
the Property (eg. GM Place, Simon Fraser University – Harbour
Centre, 1234 Main Street, Anytown, BC).
2. The right to enter the Property on certain dates for the purpose
of filming the Property, to bring equipment and personnel onto the
Property and to remove same when filming is complete, and the right
to postpone and film later if there is an occurrence beyond the
filmmaker’s control.
3. The right to film the Property and anything located on the Property
(including signs, names, logos, verbiage, located on the interior
or exterior of the Property).
4. A representation and warranty from the person signing the location
agreement that she has the authority to do so and an indemnification
from that person for any breach of the representation and warranty.
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