Cinema Law: Choice of Law & Fair Use

by Jonathan Steinsapir | Published May 19, 2009

Welcome to “Cinema Law,” MovieMaker.com’s all-new blog where you ask the questions of our resident team of legal experts and, each week, they’ll provide the answers to your production queries. Have a burning question yourself? E-mail it to and your question may just be on next week’s blog! Cinema Law is presented as general information only and is not meant to take the place of professional legal advice.

Q: I got a grant to go and make a short documentary film in India this summer, on a certain type of musical style, which I am now editing. While I was there, I did not make any of the musicians I filmed and recorded sign any type of paper. I would like to send the finished movie to festivals, and maybe distribute it, but don’t want to have any legal trouble. What type of contract stipulating that they give me the right to what I filmed can I send them to have signed? And can I quote a passage of a book without asking for any authorization?

A: Your questions raise a number of interesting issues. Unfortunately, when questions are “interesting” to a lawyer, this usually means that the answers are not simple and straightforward.

Of course, I always recommend that moviemakers get releases in advance of filming anyone. This cannot be stressed enough and, regrettably, your situation illustrates why this is the case.

You filmed in India. Thus, the first issue is the most complicated, and it probably could have been avoided by a written release. Specifically, we need to analyze what law applies here: Do we apply the law of India? If so, is there some local Indian law we need to consider? Do we apply the law of the United States? If so, which state’s law do we apply? I would have to learn a lot more about, for example, the circumstances of the filming, your distribution plan and the law and policy of India before I could give you an answer to the preliminary question of what law even applies here, let alone what type of release you should get signed.

This is why any release you use should always include a “choice of law” clause. A choice of law clause is a standard provision in a contract providing that a particular jurisdiction’s law applies to the contract. Regardless of where you film, you should always have such a clause. For example, if you film in the United States, you will want to provide that one particular state’s law applies to your contract. For example, I generally include provisions in releases stating that the laws of California apply to any disputes between the parties to the contract.

So that’s the first thing you should have in any release: A choice of law clause. Let’s say you pick California as the law you want to apply. Then you will probably want to use broad language stating that the persons you filmed grant you the right to use their likeness, voice, photographs, etc. in perpetuity in all forms of media (known or unknown) in connection with your documentary, including in advertising related to the documentary and in derivative works based on your documentary.

Now, assuming that we can apply American law here, the good news is that you might be able to get by here without a release at all. If the subjects of the documentary knew that they were being filmed for your documentary, they probably consented, either explicitly or implicitly, to their use in the documentary. As a general matter, you don’t need a written consent to use a person in a documentary if they implicitly consented to their appearance in the film—though, as I stressed above, a signed writing is always preferable. Just don’t defame the person or depict them in a false light—people usually don’t implicitly consent to being defamed.

As I said at the outset, your questions raise a number of interesting issues, and we are not out of the woods yet. Specifically, you said that your documentary is about a musical style, and this raises a some red flags regarding copyright law. Assuming you showed musicians playing music, you may need a license to use that music. Now, if a musician is playing his or her own music and knows that you are filming it for your documentary, he or she likely granted you an implied license to use that music in the film—again, the subject implicitly consented to the use.

However, if a musician is playing someone else’s music, and that music is copyrighted, you may need a license from the copyright owner of the musical composition. Whether you need a license or not would depend on whether your use is a “fair use.” The fair use doctrine is codified in the Copyright Act at 17 U.S.C. § 107 and provides that the use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research is “fair” and is thus not an infringement. The fair use analysis is a fact-intensive one, but courts generally consider several factors in determining whether there is a fair use, including the purpose and character of the work, the amount of use, and the effect upon the market for the copyrighted work.

Finally, your question regarding whether you can quote a passage from a book without authorization also raises classic fair use issues. But if you are only reading a small portion of the book, and the subject matter of what you read is directly related to the subject of your documentary, there is a good argument that this use is fair. The use is likely educational, you are only using a small portion of the book that is directly related to the subject of the documentary, and the reading of that portion would not likely adversely affect the market for the book. Again, without knowing more, I cannot provide you a definitive answer. And as any copyright lawyer will tell you, fair use issues are notoriously difficult.

Jonathan Steinsapir is an associate at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, whose practice encompasses a wide range of commercial litigation matters, with particular emphasis on intellectual property disputes. In patent cases, he has successfully represented patentees and accused infringers in federal courts throughout the country involving diverse and complex technology, including inkjet printing, high-speed computer peripheral connections, electronic musical instruments and CMOS sensors. Steinsapir has also successfully represented clients in copyright cases throughout the entertainment industry, including pay television providers, leading producers of reality television, and videogame publishers. Also in the entertainment field, he has extensive experience with contract cases, including licensing and output agreements and “idea submission” claims. Steinsapir has also litigated several trademark and trade dress cases, and he has represented both employees and employers in trade secret and non-compete cases.

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