Limitations and Obligations within the Television and Film

Industries

Research Document

Research contractual, legal and ethical obligations in the television and film industries and
produce a written report, which must comprehensively explain such obligations with
reference to elucidated examples and consistently using subject terminology correctly.

Contractual

Confidentiality/non-disclosure agreement:

A ‘confidentiality agreement is a clause of a contract which legally binds you, the contracted,
to lawfully not explain or give out information regarding a production until further notice.

Eg. Film names, plots and your involvement in a movie can NOT be quoted or mentioned in
writing or video.

- Keeps projects and productions under wraps from the public

- Eg. Code name - Star wars Blue Harvest
- Doctor Who - Torchwood
- Locked set - no press

http://backburnerfilms.com/Non-Disclosure%20Agreement.pdf
“When you go to a pitch meeting with a film company, you may be asked to pitch ideas to
them. Of course, ideas are free and cannot be copyrighted. Some writers know this
beforehand, and only reveal ideas they have already written down and have registered.
Other writers fee constrained by this, and like to ‘pitch from the hip’ – firing off idea that pops
into their head. In order to protect yourself, it is wise to ask the executives to read and sign a
simple letter acknowledging that A. you were present at their office on a specific date; B. that
you pitched them several ideas; C. if they use any of the ideas you expect to be paid; and D.
all parties agree to enter into a formal agreement t a mutually agreed time in the near future.

This letter, when signed, affords the writer some protection against a shrewd, but a sly film
producer, trying to wheedle an idea for the next Blair Witch Project out of you for nothing,
unless you have a really hot script. Then, every producer you speak to will sign your
agreement.”
http://www.raindance.co.uk/site/index.php?aid=7561
http://fanfest.com/2017/12/15/13-times-tom-holland-couldnt-keep-a-marvel-secret/
http://ilovethatfilm.blogspot.co.uk/2013/04/contractual-obligations-when-working-in.html
https://www.the-numbers.com/movies/franchise/Star-Wars#tab=summary
Exclusivity:
Exclusivity is a contractual term which implies that if you sign an exclusive contract, you are
only required (by law) to work within that set part on the threat of legal action which may
suspend payment and work if said contract is breached.

- Production Company secures rights to produce an adaptation of a book - no other

PD can adapt it
- Netflix signed a deal with Shonda Rhimes, meaning she will create and produce
shows exclusively for Netflix.
- Stranger Things - show that is exclusive to Netflix

https://www.slideshare.net/ziggy455/legal-ethical-and-contractual-powerpoint
http://danucleo.blogspot.com/

https://www.huffingtonpost.com/robert-marich/cinema-exclusivity-or-why_b_5940280.html

https://www.marketwatch.com/story/netflix-wants-exclusive-rights-to-films-tv-shows-and-the-
talent-creating-them-2017-08-16

Legal

http://filmlondon.org.uk/legal
http://core.filmlondon.org.uk/library/documents/CodeOfPractice_.pdf

Filming People:

Privacy

By virtue of the European Convention on Human Rights and the Human Rights Act 1998
everybody has a right to a respect for their private and family life, their home and their
correspondence. The Court has held that “wrongful disclosure of private information” and
“misuse of private information” would breach an individual’s right to respect for their private
life, and, in certain circumstances, publication of an image of the relevant individual would
amount to the misuse of private information.

Though it is unlikely that publication of an image of a person carrying out an ordinary task in
a public place (i.e. going to the shops) would amount to misuse of private information, the
key question is whether the person in question had a reasonable expectation of privacy in
respect of the image. This needs to be considered on a case-by-case basis as the
assessment will vary depending on what the person is doing and who they are.

A different threshold applies to a politician or other public figure than to a person who does
not work in the public eye. A much higher threshold applies to children, so that it will rarely
be appropriate to publish any image of a child without the consent of the child and/or its
parents.
Data Protection

The Data Protection Act 1998 applies to any person or company ‘processing’ anything within
the definition of ‘personal data’. The Court has confirmed that storing, developing and
printing photographs amounts to ‘processing’, so by extension recording and exploiting video
footage is also likely to fall within the definition. ‘Personal data’ is defined as anything
relating to living individuals who can be identified from either that data itself or from that data
and other information which the data processor holds or could have access to.

These definitions are very wide and it is likely that even a simple image of a person could
amount to ‘personal data’ if that person was or could be identifiable, even if there was no
other data included with the image. In this case the data controller, which is likely to be the
producer or broadcaster, would then need to comply with the Data Protection Act.

The simplest way to comply is to obtain the consent of the individual depicted, either
specifically through a signed agreement or by displaying sufficiently prominent and clear
notices warning the public that filming is taking place and they should avoid the designated
area if they do not want to be filmed. There is a defence for those processing material for the
purposes of publishing “journalistic, literary or artistic material” but the data controller would
need to show they had a reasonable belief that publication would be in the public interest,
having regard to upholding freedom of expression. Filmmakers are unlikely to want to rely on
the discretion of the Court in applying this test, so obtaining consent is always preferable. If
in doubt, the image should be sufficiently obscured so that the individual is not identifiable.

Defamation

Filmmakers must take care not to defame any individuals depicted. This would occur if the
filmmaker made a statement which referred to the individual concerned and lowered his/her
reputation. A statement could be a direct spoken statement (i.e. someone on film saying “Mr
Smith claims to be a vegetarian but eats meat every Friday”) or a statement that can be
inferred from the way the person is depicted (i.e. an image of Mr Smith holding a placard
stating that he is a vegetarian next to an image of him eating a beef burger). If the statement
made is true then it will not be defamation, but filmmakers should ensure they have evidence
to support their statements.

In the context of depicting images of individuals without consent, filmmakers should not
manipulate the image of an individual so that it is understandable meaning is altered. For
example, footage taken of an individual entering a generic building should not be shown in a
documentary about drug addiction in a way that would imply the person concerned was
entering a drug addiction facility or was addicted to drugs. Filmmakers should carefully
consider whether there are any defamatory meanings implicit in their footage. If there are,
then identifiable personal images should not be used without consent.

Ofcom Code

Those making broadcast television programmes should note the provisions of the Ofcom
Code, which state that it is acceptable for broadcasters to film in a general manner in a
public place providing the footage is brief, incidental, and an individual is not engaged in a
personal or private activity. Filmmakers should always comply with the Code, but that in itself
is not a guarantee that you are in compliance with privacy, data protection and defamation
laws.

Practical tips for filming people

● Where possible, obtain written consent from anyone shown on camera. If an

individual is the focus of a particular shot or video then consent is essential. If you
have captured an individual in the background of a shot and they are clearly
identifiable, you will also need their consent. Remember that even if someone’s face
is obscured, they could still be identifiable in other ways (i.e. through their car number
plate).
● Obtaining consent does not always entail a detailed rights agreement. It can be a
short, simple statement confirming the individual has granted his/her consent for their
image to appear in the production. Keep these in a safe place with all the key
documents for the production.
● If it is not possible to obtain specific consent, you should ensure that the area in
which you are filming is clearly marked and sufficient warning notices are visible at
the entry points. These should state in plain English and a legible font that filming is
taken place and that by entering the area individuals are granting consent for their
image to be used in a production. They should be informed that if they do not want to
grant consent they should inform a member of the production team or avoid the area
in question. If possible, take and keep photos of these signs in situ.
● You should not include any images of people in situations which might be regarded
as private (i.e. coming out of a fertility clinic) without their specific consent, ideally in
writing. You should not show any images of children without the consent of the child
and/or a parent.
● You should not use images of an individual in a manner that could be defamatory
and lower their reputation. Avoid all manipulation of an image that suggests a context
or meaning that was not part of the original image and do not associate an individual
with a negative or damaging story unless such association is accurate and truthful.
Remember that what you might think of as harmless could be very damaging to a
different person’s reputation (i.e. the head of a bank wrongly associated with a story
about credit card companies charging excessive fees).
● Where you cannot obtain consent, either specific or generic, you should carefully
consider whether the individual in question is actually identifiable and whether they
have an expectation of privacy. You should also contact your production’s Errors and
Omissions Insurance provider, as they should be able to provide experienced
guidance.
● If in doubt, seek specialist advice or take sufficient steps to disguise the individual’s
identity.
The information above summarises the legal considerations which apply when filmmakers
include a brief, incidental image of an identifiable individual in their production.

If the individual concerned is famous or particularly associated with a specific organisation or

entity there will be additional issues to be considered such as passing off and trade mark
claims. This may also be the case if the individual concerned is wearing any identifiable
logos or brands. Filmmakers should ensure that these are obscured or are only depicted
incidentally.
This guide is intended to provide a general background on the way English law approaches
issues around filming people. It is not intended to be taken as legal advice. The legal issues
involved are complex and each situation is different, requiring an individual analysis. If in
doubt you should take separate advice in all of these circumstances.

Film london

The aims of the Code are to ensure that: • The industry can film effectively, efficiently and
flexibly in London • All involved in location filming act responsibly, professionally and
considerately at all times • The practical impact of filming on people and businesses within
London is minimised.

https://www.artslaw.com.au/legal/raw-law/legal-information-for-film-and-video-makers

What are your rights as a film or video maker?

Whether you are making a low-budget short film, a documentary, or a Hollywood

blockbuster, you need to know about some important legal issues that can affect you. This
chapter focuses on copyright, copyright clearance and moral rights for people working in film
and video, including:

● script writers
● directors
● producers
● actors
● lighting and sound operators
● production designers
● composers
● editors
● people working in post-production
Copyright for film and video makers

Copyright is about important rights that only you have in your work.

Copyright in your film gives only you the right to:

● make a copy of it
● cause the film to be seen and heard in public
● communicate the film to the public, such as on TV or the internet
Other people need your permission or licence to do these things.

The person who makes the arrangements for the film to be made, usually the producer and
director, owns copyright in a film.

Copyright is important because it:

● protects your work against use by others without your permission

● allows you to get money for your work.
Copyright clearance

At some stage, you may want to use copyright material owned by others in a film or video of
your own. Before using other people’s work, you will need their permission. That is, they
must say “Yes” first.

When you seek the permission of a copyright owner, this is called copyright clearance.

Copyright clearances are needed for:

● screenplays
● written works that are read out loud, or seen
● music that is used on a soundtrack
● artistic works that are seen in a film
● footage from another film or video, including news footage
● parts of other films you might include in your film.
With a screenplay or music for example, you need the permission from the copyright owner
to use that material.

Clearances are important for two main reasons:

● They make sure that you do not infringe the rights of others
● Many film festivals, funding bodies and distributors will need to see your clearances
before they agree to work with you.
Moral rights for film and video makers

Moral rights are personal rights that connect creators of a work to their work.

As a film maker you have the moral right to:

● be acknowledged — that is, have your name listed in the credits

● stop anyone else from being named as the producer, director or screenwriter of the
film
● protect yourself by taking legal action if your film is treated in any way that hurts your
reputation.
If you have included the work of other people in your film you must respect their moral rights
by listing them in the credits.

Getting permission to film people and places

Before filming, you must also get permission from the performers who appear in your
production. Using a consent formis the best way to do this. A consent form should explain:

● what the project is

● what you are filming
● what you expect of them
● how they will be seen or heard in the finished edit
You will also need to get permission to film on private property and sometimes on some
public land.

Summary
 ● Make sure you get permission from any copyright owner whose work appears in your
production. You need to get copyright clearance if you want to use:
○ a book, short story or play as the basis for your production
○ footage or music
● Performers or anyone who appears as a cast-member in a shot must agree to being
filmed.
● You must obtain permission to film on private property.
● Make sure that you have all contracts written down and signed before you begin
working on a film.
● Credit any contributor to your production with:
○ their correct name
○ their role in the production
Legal Tips

● You might need copyright clearance even if you use a very small part of someone
else’s copyright protected work
● Assigning copyright means selling your copyright. In the film industry it is normal for a
screenwriter to assign the rights of their film script to a film company. Do not sign or
agree to anything you do not understand.
● Get legal advice on any contract.

What is Raw Law?

Learn more about these resources developed with Arts Access Victoria.

http://ilovethatfilm.blogspot.com/2013/05/legal-obligations-in-tv-and-film.html

- Legal obligations are set in place by the government and must be abided by in order
for TV and film companies to stay on the right side of the law.
- The Race Relations Act of 1976 and later amendments to the act were put in place
to ensure that racial discrimination would not be tolerated and respect and tolerance
should be promoted between racial groups.
- Most recently the Act was amended to ensure public bodies promote racial equality
and in terms of broadcasting, it ensured that racial discrimination or hatred was not
allowed to be practised. ‘Under the Race Relations Act 1976, organisations can offer
training to specific groups that are under-represented in their workforce, but it
remains illegal to offer a job to one person over someone equally qualified on the
basis of their skin colour’. The BBC was nevertheless attacked by some for
recruiting many ethnic minorities to one of its trainee schemes. There is a desire to
employ more people from diverse backgrounds at the BBC but they have to be very
careful that they do not discriminate against anyone for the colour of their skin.
 - Broadcasting Act of 1990 and the later amendments. A big part of this was to
ensure that no one media company gained too great a monopoly over the industry.
For example the Act states that ‘National newspaper owners prevented from holding
more than a 20% stake in TV companies, with similar restrictions on cross-ownership
between commercial TV, satellite TV and national radio stations’. Channel 5 was set
up and Channel 4 lost its link with ITV to spread ownership of the major TV channels
and offer the public greater choice but a loophole also meant that Rupert Murdoch
got around this as Sky was defined as a non-UK service. Many have criticized the
monopoly that News International who own Sky and many newspapers have over the
industry.

- Obscene Publications Act of 1959 and later amendments is an incredibly difficult

and subjective law to enforce. The intention of the Act is to stop material that could
deprive or corrupt people from being published or broadcast.
- Extreme images of torture, bestiality or necrophilia would most likely be classed as
obscene and it would therefore be illegal to broadcast them.
- Channel 4 states that there are ‘stricter tests relating to harm and offence under the
Communications Act 2003 and the Ofcom Broadcasting Code’ and so material like
this would not be broadcast for fear of breaking specific laws, but also on grounds of
taste.

https://www.theguardian.com/media/2000/nov/20/broadcasting.mondaymediasection2

Ethical

http://ilovethatfilm.blogspot.co.uk/2013/04/ethical-obligations-in-tv-film.html

- Ethical obligations are less likely to be required by law than contractual and
employment legislation though they can be equally important as if a TV or film
company does not behave ethically, there could be financial and legal repercussions.

Codes of practice
- A code of practice sets out how employees of a company may act.
- Though it is not legally binding, the purpose is to stop employees behaving in
unethical ways, ensuring the creator of a piece of content behaves according to
ethical standards.
- For example the BBC has a commissioning code of practice that sets out the
principles by which they should abide when commissioning work from independent
production companies. ‘The intention of the Code is to ensure that relations between
the BBC and independent producers are conducted on a fair and transparent basis.’
The code includes guidelines for dealing with independent production companies and
covers issues such as payment, editorial control and rights over the programmes.
 This ensures that the BBC has a good working relationship and behaves in an ethical
manner with producers.

Policies and procedures

- TV and film companies will also have a number of policies and procedures in place to
maintain and encourage ethical practice. These can relate to business conduct,
recruitment, employment and records management.
- They are often informed by legislation such as health and safety and equal
opportunities laws. One of the most interesting policies is the BBC’s on advertising.
- It states that advertising is not allowed in order to keep the channel free from
commercial pressures. This means they can truly serve the public without having to
make profits or have their schedules and programming dictated by external pressure.
- They also have a policy on the safeguarding of children that they work with in their
programmes and also a watershed policy that ensures certain subjects, matters,
issues and images are not on the channel before 9pm. These ethical policies make
the BBC avoid legal action and give them a good reputation and standing in the
country.

Emerging social concerns

- A company’s ethical policies might extend to dealing with emerging social concerns
such as the treatment of people with disabilities, the sexual exploitation of children
and empowering youth.
- Channel 4 for example is committed to highlighting issues around those with
disabilities. They broadcast the Paralympics and have commissioned a range of
programmes dealing with disabled people and their lives.
- They also have documentaries under the Dispatches series that tackle and highlight
a huge range of very serious issues including Britain’s sex gangs.
- These investigative shows fulfil ethical obligations to help the country improve.

Representation

- Finally broadcasters will always consider the representation of social groups in their
programmes.
- Channel 4 has come under fire for its representation of gypsy culture in My Big Fat
Gypsy Wedding and also for its titling of a show about disabled people dating called
The Undateables.
- These shows can damage the reputation of Channel 4 and lead to accusations of
racism and making people’s perceptions of certain social groups worse or they can
be praised for highlighting parts of culture that are not often represented on the
television.

- Similarly Hollywood blockbusters are also often criticised for characters that could be
considered racist stereotypes.
- Paramount, Dreamworks and director Michael Bay were all criticised for
Transformers 2’s racist caricature robots that sounded ‘black’ and could not read.
 - Avatar and Fox also came under fire for casting African and Native Americans as
aliens.
- However these huge blockbusters and their financial backers seem less concerned
with ethical obligations as they still make huge profits even if a minority of people
complain.

http://www.bbc.co.uk/commissioning/tv/articles/how-we-do-business#code-practice

http://www.indiewire.com/2014/10/the-ethics-of-documentary-filmmaking-69007/

‘Farewell to Hollywood’ - case study.