Five Good Reasons to Clear Rights Properly and to Request Permission When Needed

I recently participated in a Women In Film & Video (WIFV)-sponsored panel discussion about legal issues for producers.  Having just written a book on the topic of rights clearance, I was tasked with explaining the rights clearance process to the attending film and television producers.

Here’s my shorthand explanation of rights clearance – When you clear rights, you verify that there’s no material in your production that is going to get you sued or prevent distribution of your production. Clearing rights properly involves considering copyright, trademark, privacy, publicity, defamation, and other laws. Getting the permission you need can also involve doing paperwork, incurring
legal expenses, and transgressing down more than a few dead ends.

So why bother to go through rights clearance process? I decided to start my panel remarks by addressing that very question:

1) Lawsuits. I’ve already stated the most obvious reason in my shorthand
definition. Clearing rights and having permission to use proprietary material minimizes – and hopefully eliminates – the possibility of being sued for using the material.

2)
Distributor Requirements. If you hope to make your project widely available, there’s a good chance you will enlist the aid of a distributor. While you may be willing to take the risk of using material without permission, your distributor may not be so inclined. Established distributors insist on proper clearance. 

3)
E&O Insurer Requirements. Errors and omissions insurers require
proper rights clearance before they will issue an E&O policy for your
production. Most distributors and networks require that you have E&O
insurance before they will exhibit your production. 

4)
Protection of Business Relationships. This reason may be less obvious than others.
When a rights owner files a lawsuit for the unauthorized use of his material,
he typically names in the lawsuit anyone in the production’s chain of creation
and distribution. Potential defendants in a lawsuit include writers, individual
producers, production companies, distributors, exhibiting networks and
stations, etc. You do not help your long-term
professional health by pulling your clients, customers, or distributors into a
lawsuit. 

5)
The Golden Rule. One of my WIFV co-panelists offered
perhaps the most worthy reason for getting permission when permission is
required. It’s the right thing to
do. As a producer, you’re also a
creative person. If the tables were
turned and someone wanted to use your creative, proprietary material, wouldn’t
you want some “say” in how and whether your material is used.