What if you don't have a release?

[Giovanni Fortunati]

Hello everyone,

 

I have an important pressing question. I made a feature length movie (a narrative, not documentary) a few years ago. I got a release from many people, but a significant group of friends I never bothered getting a release from. I know, it was stupid, stupid, stupid - but we all learn from our mistakes.

 

Some of them I got into a bad argument with (nothing relating to the movie itself), and now those few are being very difficult. They don't want to sign a release. Money will probably not do the trick with them, it's one of those personal/political issues. The film is not defamatory to them, they just don't like me and want to put a spoke in my wheel.

 

I want to release the film in America and abroad. I realize that abroad they probably won't be able to stop me, but in America I'm imagining they could cause some problems by trying to sue. Not like they would get much money from us (probably zero), but could they stop the film from being released?

 

I do have witnesses that can confirm the fact that these people were aware this movie was a commercial enterprise, and that it was going to be released on a wide scale. There was no money exchanged in return for their services.

 

I'm wondering, what kind of problems can I expect and what recourses can I take? Cutting them out is very difficult, I'd have to reshoot so many scenes. Is it possible to sue them for the costs of re-filming if they refuse to cooperate? Is it even worth it?

 

Any advice is greatly appreciated!!!

 

Giovanni Fortunati

[Dan Goulder]

Hello everyone,

 

I have an important pressing question. I made a feature length movie (a narrative, not documentary) a few years ago. I got a release from many people, but a significant group of friends I never bothered getting a release from. I know, it was stupid, stupid, stupid - but we all learn from our mistakes.

 

Some of them I got into a bad argument with (nothing relating to the movie itself), and now those few are being very difficult. They don't want to sign a release. Money will probably not do the trick with them, it's one of those personal/political issues. The film is not defamatory to them, they just don't like me and want to put a spoke in my wheel.

 

I want to release the film in America and abroad. I realize that abroad they probably won't be able to stop me, but in America I'm imagining they could cause some problems by trying to sue. Not like they would get much money from us (probably zero), but could they stop the film from being released?

 

I do have witnesses that can confirm the fact that these people were aware this movie was a commercial enterprise, and that it was going to be released on a wide scale. There was no money exchanged in return for their services.

 

I'm wondering, what kind of problems can I expect and what recourses can I take? Cutting them out is very difficult, I'd have to reshoot so many scenes. Is it possible to sue them for the costs of re-filming if they refuse to cooperate? Is it even worth it?

 

Any advice is greatly appreciated!!!

 

Giovanni Fortunati

They're not the ones that will stop the film from being released. What will stop you from getting distribution is a lack of E & O (errors and ommissions) insurance, which you won't be able to get in the absence of release forms from the actors. Threatening to sue them will be a complete waste, and only compound your problems. (Hopefully, you have enough sense not to have already made that threat.) You seem assured that the film is slated to be released on "a wide scale". Do you actually have some sort of deal worked out as to that effect? It's time to make up or reshoot.

[Giovanni Fortunati]

They're not the ones that will stop the film from being released. What will stop you from getting distribution is a lack of E & O (errors and ommissions) insurance, which you won't be able to get in the absence of release forms from the actors. Threatening to sue them will be a complete waste, and only compound your problems. (Hopefully, you have enough sense not to have already made that threat.) You seem assured that the film is slated to be released on "a wide scale". Do you actually have some sort of deal worked out as to that effect? It's time to make up or reshoot.

 

Thanks for your reply!

 

No threats were made on my side yet, that was a last resort. We really don't have a wide-scale release planned (as in "coming to a theater near you), but we do want to distribute the film to the public.

 

If E&O won't cover it in the United States, is it possible to self-distribute it?

 

Giovanni Fortunati

Edited June 12, 2008 by Giovanni Fortunati

[Steve Wallace]

Thanks for your reply!

 

No threats were made on my side yet, that was a last resort. We really don't have a wide-scale release planned (as in "coming to a theater near you), but we do want to distribute the film to the public.

 

If E&O won't cover it in the United States, is it possible to self-distribute it?

 

Giovanni Fortunati

 

E&O is generally (if not always) required by distributors. If you plan on distributing yourself, thats an option. However if find out, they can send a cease and desist to you and if you don't comply they can sue you...

 

So it's a terrible business practice to follow. You have no protection in the eyes of the law, it is not fair use, and you do not own the right to display their performance / likeness / or voice performances.

 

Plus the likelihood of selling the film to anyone is non-existent, no company would want to take on the risk, considering you never cleared the rights.

[Giovanni Fortunati]

E&O is generally (if not always) required by distributors. If you plan on distributing yourself, thats an option. However if find out, they can send a cease and desist to you and if you don't comply they can sue you...

 

So it's a terrible business practice to follow. You have no protection in the eyes of the law, it is not fair use, and you do not own the right to display their performance / likeness / or voice performances.

 

Plus the likelihood of selling the film to anyone is non-existent, no company would want to take on the risk, considering you never cleared the rights.

 

What about distributing abroad (i.e. Europe) ? Surely they can't do anything to stop that, right?

 

And what about the fact that they acted in a film, isn't it obvious if someone is an actor (not some extra who isn't always aware they are on camera) they are consenting to be in a film?

[Jim Keller]

And what about the fact that they acted in a film, isn't it obvious if someone is an actor (not some extra who isn't always aware they are on camera) they are consenting to be in a film?

 

No, it's not assumed that they've granted their likeness rights simply because they performed on camera. It's not uncommon at all for actors to perform without signing a release precisely to prevent the film from being released. The most common reason for this is if it's a "home movie" or "test footage" that they're doing as a personal favor for a friend. I've heard through the grapevine that parts of Sin City were, in fact, shot this way as a proof of concept, and releases obtained retroactively when the producers decided they would like to include the proof-of-concept footage in the final film.

 

It's also conceivable that the talent would agree to sign the release only after they've viewed the footage and are happy with it. This generally occurs when you've been hired by the talent to produce the film as a demo for them.

 

And even if you tried to pretend you have a valid release from the talent, if you can't produce it it's still assumed that the likenesses aren't clear, because it's not unusual at all for releases to have riders on them (e.g. "no footage showing nudity may be used") that must be obeyed.

 

I can't comment on the laws in Europe, but my understanding is that they're similar enough to American laws that I would be surprised if a European distributor would take the risk. A cease and desist letter in America could, in fact, stop up international distribution as well.

 

I'm afraid that, as has been stated before, your options really are to either make up with your actors or to reshoot. FWIW, the threat of a reshoot is sometimes enough to convince talent to sign a release. The ego of the actor trumps personal issues nearly every time, and no actor likes to end up on the cutting room floor.

[Giovanni Fortunati]

Thanks to all who are answering!

 

I can't comment on the laws in Europe, but my understanding is that they're similar enough to American laws that I would be surprised if a European distributor would take the risk. A cease and desist letter in America could, in fact, stop up international distribution as well.

 

Hmmm, but wouldn't that require the actors travelling to the European country of choice and trying to sue there? If the distribution company had a division here in America, then I imagine it'd be a problem.

 

I'm afraid that, as has been stated before, your options really are to either make up with your actors or to reshoot. FWIW, the threat of a reshoot is sometimes enough to convince talent to sign a release. The ego of the actor trumps personal issues nearly every time, and no actor likes to end up on the cutting room floor.

 

The problem is that these actors are all members of a cult, and normal reason is a bit devoid with such people. Their leader hates me, and they are loyal to him as a guru. That is why I have a problem!

 

The film itself features no nudity or sex, so that shouldn't be a cause for them to get upset. It also doesn't discuss their beliefs either, so they'd have no cause to challenge me with that. But it's going to be difficult because if I get one to sign, they may just go tell the cult leader and then if he puts the kebosh on it, I've got a problem.

[Joe Giambrone]

"The problem is that these actors are all members of a cult, and normal reason is a bit devoid with such people. Their leader hates me, and they are loyal to him as a guru. That is why I have a problem!"

 

Are you serious?

 

This is probably a more interesting story than the movie. Do a documentary on the cult.