Q: There’s quite a lot of information that leads me to believe I should create an LLC before I undertake a documentary project.
Since I am the only person who is involved on the production end, is this highly necessary? I’m asking any on-screen interviewees to sign release forms and I’m also obtaining signed release forms for any locations. What about still photos and home videos? If I use the photos and old home video footage, do I need to obtain permission from every individual who might appear in the photos/videos?
A: Should you create an LLC? First things first: What is an LLC? LLC stands for limited liability company (not “limited liability corporation,” which is something of a redundancy). Because LLCs were originally modeled after certain types of partnerships, most states’ early LLC laws required more than one member. Most states today (including California, for example) have modified their laws to allow for an LLC to be composed of a single member. Like a corporation, an LLC has limited liability, meaning that the owners (or members) of the LLC can only be liable for the LLC’s actions in certain circumstances.
However, LLCs are generally easier to operate than corporations and have thus become more popular than corporations for certain types of small businesses. Without knowing more about your situation (e.g., Do you plan to exploit the documentary commercially? Is there any possibility that subjects of the documentary may be offended by it and sue over it? Will you need to obtain financing for the documentary?), I can’t definitively say whether or not you should form an LLC in connection with your documentary. However, I can say that the fact that you are the “only person involved on the production end” would not tend to weigh against forming an LLC. In fact, it would probably weigh in favor of forming an LLC. This is because if there are ever liability issues associated with the production of your documentary, you will likely shoulder that liability alone as you are the only person involved in its production. Creating an LLC and using it correctly might permit you to avoid certain types of personal liability that may result from the production of your documentary.
Your question regarding release forms for photos and home video footage raises a number of interesting issues. First, if you did not create the photos and home video you plan to use, you will probably need to obtain permission from the creator of those works (regardless of whether or not the creator is in the photos or videos). As a general matter, a photographer owns a copyright to photos or videos upon their creation (and regardless of whether the photos or videos have ever been registered with the Copyright Office). Thus, to use those works, you will need a license from the photographer(s). I strongly recommend you get written permission from the photographer(s) to use whatever photos and home videos you plan to use in your documentary. If you do not, you run the risk of being sued for copyright infringement and, among other things, seeing a federal court enjoin you from distribution or exhibition of your documentary and make you responsible for payment of monetary damages and the photographers’ attorneys’ fees. I imagine that this is something you’d rather not deal with.
Second, to the extent possible, you should obtain written releases from any person who is identifiable in the photographs and home videos. Although the remedies here would probably not be as drastic as those associated with copyright infringement, there is a risk that the use of images of an individual, or even a person’s voice, may violate an individual’s right to publicity. Courts usually grant documentary-makers quite a bit of freedom to use the likeness of persons when those images are reasonably related to the subject matter of the documentary. But it is a good idea to get a release in advance so you do not run the risk of having to deal with this unpredictable issue after your documentary is finished.
Good luck with your documentary. MM
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 video game 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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