Peer-to-Peer Rental: A Cautionary Tale; Plus: Using Nonfiction Work as Inspiration
By Steven Beer
Why is the insurance concept of “voluntary parting” a problem for equipment owners in peer-to-peer rentals?
“Voluntary parting” refers to an exclusion from insurance coverage that can deprive camera and equipment owners of recovery if items are stolen by a larcenous renter.
Independent documentary filmmakers routinely turn to camera rental houses to access state-of-the-art film gear and technical information at affordable prices. Over the years, these vendors have played a critical role in the business of independent film production.
Because high-end cameras are costly and expensive to replace, all rental houses require renters to purchase insurance policies that cover the actual replacement value of all equipment (as opposed to the depreciated value due to wear and tear). The certificate of insurance, which reflects the scope of the policy, typically lists the rental house as a “loss payee” to be compensated by the insurance company for loss or damage to the equipment.
The growth of online camera and equipment rentals, including peer-to-peer platforms, has had a disruptive impact on the traditional camera rental business. Mostly used as a short-term option, online rentals and peer-to-peer transactions are often more convenient and less expensive than renting from traditional outlets. As a practical matter, they allow guerilla documentary filmmakers to secure top-of-the-line cameras, lenses and equipment on short notice for a late night or weekend shoot, when most rental houses are closed. They also offer substantial savings over retail rental establishments. From the camera owner’s perspective, renting out gear generates income that can offset and subsidize the steep cost of quality equipment. The equipment works for them while the owners are otherwise engaged.
But the online camera-rental business has experienced growing pains. Over the past year, industry blogs discussed regrettable instances of identity theft and rental fraud. In one recent peer-to-peer scenario, an owner agreed to rent his expensive, high-end camera to a filmmaker through a well-regarded online portal that vets active users as part of its service. The renter paid his fee and purchased insurance covering potential damage or theft, as mandated by the platform. The similarly insured owner delivered the camera to the renter, who never returned with the precious equipment.
Frustrated by the voluntary parting coverage loophole and the platform’s stance, the aggrieved owner detailed his experience on a popular photography blog, and a wave of empathetic readers rallied to the owner’s defense. The platform relented and ultimately covered the owner for the loss of his equipment, regardless of the voluntary parting exclusion. As a consequence of this and similar incidents, that rental platform now offers an “owner’s guarantee” protection rider that can be purchased for an additional premium to protect against damage, loss and voluntary parting incidents. The new opt-in waiver protection covers up to $20,000 in equipment losses, according to the company. Not all platforms have addressed the issue.
The loss of valuable camera equipment can be devastating. Before renting one’s precious gear on a peer-to-peer portal or elsewhere, an owner should take precautionary measures to carefully (and independently) vet the potential renter and acquire separate ownership insurance that specifically covers a voluntary parting (in addition to the coverage provided by the platform).
If a nonfiction story in a newspaper or magazine inspires me to do a documentary or a nonfiction podcast serial or TV series on the same subject, do I have to ask the author or publisher for permission?
The answer to this question depends on what’s being borrowed: the idea, the facts or the expression of the story.
If your documentary, podcast serial or TV series (which I’ll refer to collectively as an “Inspired Work”) simply takes the idea of the original story—which is to say, the concept of covering the particular subject matter—there is no need to ask permission. Copyright does not protect ideas or concepts, and once they are made public the law treats them as public domain material, free as the air. (This assumes, of course, that you’re accurately identifying your work as coming from you and not from the source of the original work.) There is no need to credit the author of the original story, either.
Similarly, if your Inspired Work takes facts from someone else’s piece but not its “expression,” no permission is required from the author or publisher. Like ideas and concepts, facts are not protected by copyright and once made public, the original author has no ability to monopolize them. Only the expression of facts is subject to protection.
These principles are consistent with the fundamental purpose of copyright, which is to benefit society. It would disfavor society if facts could be owned because that would prevent others from building upon and developing those facts more broadly or in new ways. The hard work of an author in researching and assembling facts does not in and of itself merit copyright protection. On the other hand, copyright also aims for society’s benefit to give authors a financial incentive to create, which would be subverted if third parties could take the wording of copyrighted nonfiction works and convert them wholesale to their own use without asking permission or making payment. That is why copyright protects “expression” of facts.
Accordingly, you generally can’t take the words of an original story verbatim in more than limited, attributed quotes in a context of comment or criticism, unless there’s only one way to express a fact. (For example, the sentence “The front of the building is white” is not subject to copyright protection.) Even close paraphrasing can bring trouble. ., Iif the structure of the original story is distinctive—say, with flashbacks and flashforwards that depart significantly from chronological order—you can’t take that. And for some types of pre-existing works, a distinctive set of authorial choices in aggregating facts could be subject to copyright protection.
Notwithstanding your privilege to use facts without asking, it still makes sense to interview additional witnesses and experts, research a subject beyond a single source, interview additional witnesses and experts, and draw facts from multiple references (if available), all as an extra layer of protection against claims by a particular author that you took much.
And not being required to obtain permission from the author of the original piece doesn’t mean there aren’t advantages to doing so. For one thing, if the original work has a famous title, you likely will need permission to use it. It’s well known that copyright doesn’t protect a title, but there are other legal theories that do protect a title if the public associates it closely with a particular author or source. (For example, if the first dozen or more pages of Google results associate the title Law & Order solely with the Dick Wolf TV franchise, you would be well advised not to use the same title for your documentary or podcast series about criminal justice. Yes, “law and order” is a common English phrase, but that doesn’t help you. Further, Law & Order is a federally registered trademark for the TV series.)
Getting the author of the original work on board in some capacity with your Inspired Work can also bring other benefits, such as obtaining access to the author’s files, gaining extensive interviews with the author, saving time and trouble by consulting with the author, avoiding any grumbling or claim of plagiarism by the author, however unfounded legally, and making it easier to attract financing. (Investors, studios and other platforms love to hear that you optioned another property, especially if it has a following.) You also can use the opportunity to preclude the author contractually from lending talent, memory and research to someone else’s competing story.
Franklin, Weinrib, Rudell & Vassallo has over 50 years of experience of counseling makers of documentaries and other nonfiction works in every project phase. Find out more at documentarytoolkit.com.
The authors thank Peter A. Marshall at the DeWitt Stern Group, Yoni Arava at Hayden5 and Laird Criner at Film Emporium for their respective insights to the article addressing peer to peer rentals.
(Please note: this column is not intended as legal advice. Individual circumstances always need to be taken into account. Please consult your lawyer.)