November 1, 2003

DVD Rights Clearance: Brand New Format, Same Old Laws

A client once asked me if the legal and business issues concerning an audio-visual project would change, since mediamakers are producing more projects on video than on film. I explained that the change in format was irrelevant and that the fundamental legal and business issues concerning any media project would still need to be addressed. These issues include the mediamaker's need to secure the appropriate personal, material and location releases, licenses for such pre-existing materials as musical compositions and recordings on a project's soundtrack, archival footage and photographs in the project itself.

Nonfiction mediamakers who use pre-existing film and television excerpts must contend with owners or those that control such clips and possibly the applicable unions (e.g., Screen Actors Guild, American Federation of Television and Radio Artists, Writers Guild of America, Directors Guild of America and American Federation of Musicians).

Still, mediamakers should revisit their releases and other agreements when placing their projects in such new media formats as the digital versatile disc (DVD). In the past, this issue was aggravated by the fact that certain new formats such as videocassette were significantly different from such existing media as television. Even when a mediamaker's licenses and releases were broad in scope, several courts had to contend with the issue of whether a new medium, such as videocassettes, would have been reasonably foreseeable when the parties signed such releases and licenses. This issue becomes especially crucial when mediamakers and distributors want to re-release in the DVD format projects that were produced and/or released several years ago.

However, the nature of DVD is quite similar in concept to videocassettes; in fact, one could argue that the DVD is a logical extension of the videocassette for institutional and consumer home use. In addition, many mediamakers have learned to include in their releases and licenses whenever possible such broad grants of rights as "...in any form, device or media, whether now known or hereafter created." Many licenses and releases include a provision that permits mediamakers to use such pre-existing materials in the advertising and promotion of a project.

One of the benefits of the DVD format for nonfiction mediamakers is the ability to produce one or more "featurettes," which address such issues as how the project was produced and which might include a mediamaker's commentary regarding the project's subject matter. The DVD might also include a "postscript" or "epilogue," in which a mediamaker revisits his or her subject and notes the changes in the subject's life or how recent events have affected the subject matter since the project was initially produced and/or distributed. This supplemental material is separate from, although related in nature to, the project itself that is in the DVD format. Since it generally becomes an integral part of the DVD version of the project, such supplemental material does not constitute promotional or advertising material.

Mediamakers who incorporate footage and other materials from the project as separate programming on the DVD should review the appropriate licenses and releases to ascertain if such documents cover the project as well as any other related project. If the project's releases and licenses do not extend to such related projects, then a mediamaker may have re-approach the licensors and subjects to renegotiate and extend the permissions to include supplemental projects and materials in connection with the DVD. Mediamakers generally should deal with such supplemental materials and projects as separate from the project itself, unless licenses and releases can include broad enough language to encompass these related materials and projects.

Mediamakers should also realize that when a subject or on-camera participant in a project dies, his or her rights to bring a claim for defamation or invasion of privacy generally terminate as well. This thereby eliminates the need to renegotiate such releases for the use of materials included in the original project or even from outtakes from the project. 

If a mediamaker cannot renegotiate such releases and licenses, he or she may have to alter the project by eliminating certain scenes or replacing some musical compositions and sound recordings from the soundtrack in the new DVD version, or exclude certain subjects and participants from any supplemental materials included on the DVD version.

Due to the passage of time, mediamakers should review their "Errors and Omissions" insurance policies. Such coverage generally protects the mediamaker and his or her licensees and distributors from third-party claims in such areas as copyright and trademark infringement and invasion of policy and defamation. Since the use of a project's footage in the supplemental materials for the project's DVD version may occur several years after the issuance and expiration of such coverage, mediamakers may have to renew their old policies or secure new policies at additional costs.

When it is time for mediamakers to produce or have produced such supplemental materials, mediamakers and their distributor should have addressed the issue of who will be responsible for the creation or authoring of such materials and projects on the DVD, who should assume such costs and how such costs should be allocated between the parties. The distributor generally shall assume the costs of manufacturing the DVDs, but as recoupable costs, they would be deducted before a mediamaker would receive any monies derived from the DVD. Such issues should be addressed in the agreement between a distributor, sales agent or licensee and a mediamaker.

Mediamakers who are mindful of these issues concerning the DVD version of their project can take steps to accomplish the twin purposes of minimizing their liability while maximizing their revenue.

 

Robert L. Seigel (Rlsentlaw@aol.com or rseigel@cdas.com) is a New York City-based entertainment attorney and a partner in the law firm of Cowan, DeBaets, Abrahams & Sheppard LLP. He specializes in the representation of clients in the entertainment and media areas.

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