Protections and
Misconceptions
Image courtesy of Nigel Bellis
*The information provided by Adam Wactlar, the Yale DocProject, Nigel Bellis, and Simon Tor Dekker was provided to us for informational purposes only, and should not be construed as legal advice on any subject matter. The views and opinions expressed are those of the speakers and do not reflect the views of any entities they represent.
Documentaries are like a bridge that can connect audiences with the stories and facts of real life events in a creative and intriguing way. Some documentaries may recreate historic events like war docu-dramas while other documentaries weave together interviews with different people to tell a story. True Crime documentaries, specifically, focus on real life crimes and typically explore the motivations and psychological factors that drive criminal behavior and the repercussions of the wrongful acts. These documentaries cover a range of topics, they include anything from serial killers, wrongful convictions, and high profile court cases (Hellerman, 2024). In this portion we will examine a number of issues relating to documentaries, including the importance of contracts and right of publicity law for true crime documentaries.
What is a Docudrama?
Adam Wactlar is an attorney at Netflix who works on legal issues relating to docudramas. Docudramas are very similar to documentaries in the sense that they pertain to real life events, but docudramas add an extra layer by dramatizing the real life event. We asked Adam to describe the differences between a documentary and a docudrama. Interestingly, they are very similar.
Production Review Process
Before a production can even begin there must be certain terms and conditions that are agreed upon by everyone involved. The producers and writers want to make the finished product a work of art, oftentimes skewing them away from the set terms that were agreed upon pre-production. This clip is Adams' explanation of how he reviews scripts and what he looks for.
Adam explains the way in which an individual is depicted within the docudrama is where discrepancies can happen with the original agreements. In post production reviews the depiction of individuals is not as heavily focused on comparative to issues such as copyrights and permissions. The reasoning behind this was explained by Adam in this clip.
The Right of Publicity Law
The American Bar Association describes the Right of Publicity law as protection of an individual's name, image, voice, signature, and likeness. In order for the plaintiff to prove their rights were infringed upon they must prove the following elements.
Has the defendant used the plaintiffs identity or persona.
Was such appropriation for the defendant's advantage, commercial, or other use.
The plaintiff did not consent to the use of the plaintiff's identity.
The appropriation is likely to cause injury to the plaintiff.
The issue is important in documentaries because these films either depict individuals or use footage of such individuals. The right of publicity not only protects the living but also the deceased. Due to the fact that the Rights of Publicity are different from state to state it is often seen as having inconsistencies making it difficult to fully understand and enforce.
Contacting Interviewees
Contacting interviewees is a major part of creating a successful documentary. The interviewing process for documentaries can be uncomfortable for some people, as the truth is never simple, especially in crime. Getting the stories documentarists want is a “careful dance of pushing, pulling, and accepting what they person is sharing” (Meier, 2019). To protect the story that the interviewee has told people connected to the documentary, and to avoid problems with the Right to Publicity, the documentary team normally requires any person they interview to sign a release form. We asked Nigel Bellis about this.
We asked Simon Dekker whether he has ever had issues with interviewees coming back and saying they did not want to be in the documentary.
Non-Disclosure Agreements
A non-disclosure agreement is a legal contract where parties agree that certain information will remain confidential. With an NDA the person who signs it is prevented from speaking or disclosing any of the information in the contract with anyone who is not authorized by the NDA. If the NDA is breached this could open up the possibility of lawsuits towards the breaching party (Legal Information Institute).
Nigel Bellis had mentioned that production companies require non-disclosure agreements (NDAs) to be signed by those involved in the filming process. Due to him signing NDAs he stated that he has to be relatively broad as he did not want to be the one to test the theory of penalties of the NDA. A great example he stated was the need of an NDA for shows such as Americas Got Talent, if information is sold or distributed early before the shows release date then the production and broadcast company will lose a lot of money.
Interestingly Simon had a different view on NDAs when it comes to subject matter of the interview and documentary subjects. To further this topic we also asked if Simon has required any staff he has worked with, such as editors and actors to sign NDAs during the production, he gave great insight based on his experience.
State of the Industry
Nigel Bellis mentioned how difficult the television industry is. Due to the fluctuating industry, the next day is never guaranteed, as Nigel Bellis experienced 7 years ago when he moved to Los Angeles chasing the money and contract he was promised by a company that not long after went out of business.
References
Hellerman, J. (2024, April 4). The true crime genre in movies and TV shows (definition and examples). No Film School. https://nofilmschool.com/what-is-true-crime
Legal Information Institute. (n.d.). Non-disclosure agreement (NDA). Legal Information Institute. https://www.law.cornell.edu/wex/non-disclosure_agreement_%28nda%29
Meier, W. (2019, December 18). Tell the truth: A guide to interviewing for documentaries. Musicbed Blog. https://www.musicbed.com/articles/filmmaking/directing/tell-the-truth-a-guide-to-interviewing-for-documentaries/
What’s in a name, likeness, and image? the case for a federal right of publicity law. American Bar Association . (n.d.). https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2020-21/september-october/what-s-in-a-name-likeness-image-case-for-federal-right-of-publicity-law/