What is rights clearance and why is it necessary?

Besides the script and music, several creative elements of a film are protected by copyright or other forms of intellectual property rights, such as trademarks or personality rights. For most filmmakers it is obvious that the copyrights and related rights for a film are meant to be acquired from all the creators and actors of the production. However, props, costumes, set design elements, and archive images may also need to be cleared if they feature protected elements. To ensure that these elements don't hinder the future exploitation of the film, it's necessary to check them and get permission to use them if needed.

Should I clear everything in my film?

No. Just because something has legal protection doesn't mean all uses are restricted or require permission. Typically, the use of commercial trademarks and brand logos is limited to certain areas of commerce and business, but this doesn't mean they can't be shown in films under the circumstances of their regular use. However, if their representation could be detrimental to the good-will or reputation of the brand, if the image implies false facts about them, or if they are given too much prominence in the story, it's advised to seek legal assistance to avoid future legal disputes. As for other creative elements that have independent copyright protection (such as artworks, music, photos or clips from other films), it is definitely advised to get permission from the right-holders or to ask for legal assistance if there are doubts about the necessity of it.

Do I need legal assistance for clearance?

Most productions hire a dedicated crew member whose job is to search for and contact the right-owners of every element that falls under some kind of protection. This is usually a time-consuming and costly procedure that is best supervised by a legal adviser to assess what really needs to be cleared and what doesn't. The "let's clear everything just to be safe" approach is not the most efficient way to use human resources or keep costs at a minimum. If you follow certain basic guidelines and your film is not sold to an international distributor, you might be able to manage without a lawyer. However, if you hire a world sales agent and/or your distributor/financier requires an E&O insurance, you will certainly need legal assistance.

What if my film is based on true events or the story of actual persons (living or deceased)?

This is one of the few cases where you are definitely advised to consult a legal expert. He/she may say that you are good to go without any specific arrangement if no legal matters arise (for example, with historic events that took place so long ago that no personality rights or privacy questions come about). But if the film might affect the reputation, privacy, or image of a living or deceased person, or if you want to tell a true story that involves a number of such characters, you would not want to get started without a thorough legal analysis of the likely risks and consequences. This is especially true when it comes to documentaries, and you want to be sure that you have agreements in place with the people who appear or speak in the film that give you the greatest possible creative freedom and legal security.

What is an E&O insurance and when do I need it?

The Errors and Omissions (E&O) insurance is a special type of insurance policy for film productions provided by a number of insurance companies. They have a fairly standard procedure, even if the terms and conditions might vary, which all entail the involvement of a lawyer who will certify that the production's clearance procedure was thorough, transparent, documented and compliant with the industry standards. In exchange for such a legal opinion (which confirms that all the copyrights and underlying rights of the film are clear and assigned to the producer), some degree of paperwork and fee, the insurer will provide protection in case a legal dispute emerges after the film's release. The necessity of this insurance may vary based on the type and place of distribution, but many sales agents and distributors who sell the film worldwide, especially aiming for the US market, will require it.

What is a chain of title document?

A chain of title document (or a chain of title opinion) is a document prepared by legal counsel that lists all the relevant contracts and agreements that form the legal basis of the film. These documents assign the copyrights and all underlying rights of the film to the production company. The chain of title opinion is an indispensable part of every E&O documentation, and you will also need it if you enter into an international distribution agreement with a world sales agent.

What is a copyright/clearance report?

The copyright report is also a usual part of the E&O paperwork, but your worldwide distributor and/or main financier will also request it. Besides the chain of title document, it contains the “clearance report” or “clearance log” as well, which is a lengthy list or table of all the frames of the film (accompanied by the time-code) that are relevant from a clearance point of view. This table shows if the element in a given frame needed clearance and, if so, whether permission was obtained. The documentation (e.g., contracts, releases, or other letters/emails) that contain the proofs of these permissions are usually enclosed with the copyright/clearance report.

When do I need a collection agent?

A collection agent is in charge of allocating international distribution revenues to the co-producers and financiers who are entitled to a share of the film's income. An agent is usually needed when the co-production's financing structure is complex with numerous participants, and the calculation and division of receipts would be too much of a burden for the delegate producer. Eurimages also requires the involvement of a collection agent under certain conditions. The agent has a fee for their services (a percentage of the distribution revenues), and the procedure is regulated by the parties in the Collection Account Management Agreement (CAMA), which precisely sets forth the recoupment schedule for all profit participants.