February 3, 2012

Cinema Law: Legal Issues for Docs?

by Randy Whatoff | Published June 1, 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 am currently developing a documentary about life in a Section 8 apartment complex in our neighborhood. Beyond obvious things like releases from those who appear on camera, what other legal issues (short of defamatory issues) should I consider? For example, do I need permission from the apartment complex owner to film a tenant in his or her apartment? Do I need permission to film the exterior of the complex (e.g., as tenants walk into the building, etc.)? I know permission is always better, but it may constrain the ability to tell the story if asked for (e.g., intimidation by owners of the participating tenants, etc.).

A: First, you probably do not need permission from the owner of the apartment complex to film a tenant in his or her apartment. The tenant’s lease governs his or her use of the apartment. Unless the lease specifically prohibits filming, you should be fine. As one court put it in a different context: “The lease contains no limitation of the uses to which the lessee may put the leased property. In the absence of such limitation, the tenant may use the property for any lawful purpose not materially different from that in which they are usually employed, to which they are adapted or for which they were constructed.”

The above answer assumes that your filming is low-impact and limited to the documentary context. If you plan on using complex lighting, sets or anything else that might disturb other tenants, then you probably need permission from the owner of the complex and the affected residents. Also, if you were making a non-documentary film, it would be far more likely that you need permission from the owner of the complex. This is because most residential leases restrict the tenant’s use of the premises to non-commercial uses. Shooting a non-documentary film would likely breach such a provision and might lead to the tenant’s eviction.

You also probably do not need permission to film the exterior of the apartment complex. You may have heard of “building release forms,” which are similar to actor or model release forms. Examples are widely available on the Web, for instance here, here, here and here. However, the legal arguments for using such forms are tenuous. Unlike people, buildings do not have a “right to privacy” or a “right of publicity,” and a release is therefore probably not necessary. With that said, this is an unsettled area of the law, and if you think the owner would sign a release, it’s definitely not a bad idea.

Even if you have a property release, there are still some issues you need to consider. First, be careful not to portray the building in an unfair or inaccurate light, as this could result in a defamation claim from the owner. For instance, say your film portrays the apartment complex as a dilapidated slum. The building cannot sue you for unfairly portraying it as a slum, but the owner of the building may be able to sue you for unfairly portraying him as a slumlord-by-association. Second, if the building contains any identifiable trademarks or logos, you may want to avoid filming them. See my colleague Amber’s article on filming trademarks here for more information on this issue. Third, if the building contains any art—such as a sculpture or mural—you should not include the art in your film without the artist’s permission.

You also need to make sure that you are not on private property when you’re filming the apartment exterior. If you’re on private property and you do not have permission to be there, you may be liable for trespassing, regardless of what you’re filming.

Finally, because the apartment complex you will be filming is Section 8 housing, you may want to speak to a lawyer who specializes in this area. (For those of you reading this article who are unfamiliar with the Section 8 housing program, it is a federal program that provides rental subsidies to certain low-income families.) As far as I know, nothing in the Section 8 statutory framework prohibits moviemaking. Moreover, Section 8 tenants are explicitly allowed to “engage in legal profitmaking activities in the unit, but only if such activities are incidental to primary use of the unit for residence by members of the family.” Still, you do not want to do anything that might affect a family’s eligibility for the program or cause them to be evicted.

Randy Whattoff is an Associate at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, and has experience litigating a broad range of complex business matters. He has recently handled cases involving professional athletes, complex real estate transactions, business fraud and other commercial disputes. Mr. Whattoff graduated cum laude from Cornell Law School in 2006. At Cornell he was an editor of the Cornell Law Review, the managing editor of Cornell Legal Information Institute and a teaching assistant. During law school Mr. Whattoff also externed with the Honorable Joel E. August in the Second Circuit Court of Hawaii. Mr. Whattoff received his undergraduate degree in Sociology from UC Berkeley in 2002. He minored in Computer Science.

The answers to legal questions provided by the lawyers of Kinsella Weitzman Iser Kump & Aldisert, LLP ("KWIKA") are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in the articles is not intended to create a lawyer-client relationship between KWIKA and you. The opinions expressed in the postings are the opinions of the authors and do not reflect the opinions of KWIKA, its employees or agents.

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cinema law defamation claim do i need a building release form do i need permission to film exterior documentary permission legal questions randy whattoff release forms section 8

COMMENTS | POST A COMMENT

Comment by Mark Raudonis on 6/05/09 at 11:25 am

Randy,

You seem to be trying to make the case that documentary film is “non-commercial”. That simply isn’t true.

“This is because most residential leases restrict the tenant’s use of the premises to non-commercial uses.”

Ask Michael Moore, or the distributors of “March of the Penguins”. Documentary can absolutely be a commercial endeavor. Just because most docs have NO HOPE of ever turning a profit doesn’t absolve them from the same laws that cover features or TV production.

Mark

Comment by Nikon D3100 on 9/01/10 at 7:13 am

agree with you kozmetik