How do I preserve this documentary film without breaking the law?
July 1, 2018 3:59 PM   Subscribe

I volunteer with a local chapter of a national organization. We have in our possession a short documentary film that was made by one of our volunteers in the 1980s, beautifully documenting a project we worked on on local public lands. The filmmaker, a professional cinematographer, shot and produced this film as a labor of love and a gift to our organization. Until now it's only been shared among a small number of people directly associated with our activity. The person who produced the work passed away in 2010.

Today, in the age of high-speed internet and social media, my group would like to publish this film on video platforms such as YouTube and Vimeo, and share it as widely as possible. We also think it may be of interest to a local government agency which was involved with the project, for example, to be included in free public exhibits. There is no intention to monetize the film; we just want it to be available as an educational resource, and as a rare and interesting first-hand record of our local history.

I’m excited to be tasked with preserving and sharing this footage, but this is very far outside my realm of experience, and I need your help understanding and overcoming some possible legal issues. Here are my concerns:

1 - I believe legal copyright of the film would have been inherited by the author’s estate upon his death. Is this correct? His family have given me their written consent and full support for this project - is this enough?

2 - The film includes a music soundtrack, using a widely-known piece of music that I do not believe to be in the public domain. I was able to identify the music using SoundHound; it was composed in 1944, and the composer died in 1990. Who holds the copyright for music - the composer, performer, record label, some combination of all three? As this was a not a commercial project, it’s unlikely our filmmaker would have sought the proper permissions to use this piece in the soundtrack. Who should I contact to find out about using this music legally?

3 - Is there any requirement that people who appear in the film should have given some kind of consent for this to be made public? It’s highly unlikely the filmmaker would have obtained anything in writing. It was filmed in a public space. The remaining members of our organization do not recognize all the people who appeared, and we have no way of tracking them down. Legal requirements aside, is there an ethical/moral objection to widely sharing this film footage if individual consent was not obtained?

We are in California.
posted by gin and biscuits to Law & Government (4 answers total) 2 users marked this as a favorite
IANAL but deal with this stuff from time to time.

1. That should be sufficient. If they are willing, I'd see if they'd assign your organization the copyright so that this doesn't have to be done again in the future.

If it helps with any anxiety about possible lawsuits, unless he filed it with the copyright office (which I suspect he didn't if he used unlicensed music in it), any damages that your organization could be sued for would be limited to actual damages, which would be effectively nothing, especially if you have documentation that he considered this a gift to the organization.

2. Probably a lot of work to do 100% legally and being a tiny fish you may not get a response if you do write to try to find out who owns the rights at this point. You need the master rights to the specific recording and the publishing rights to the composition. In both cases, the rights are probably held by a corporation (that may or may not even be in business) rather than the composer's estate. If you can find a CD booklet for the performance, especially one that's relatively recently published, that would give you a starting point.

The two paths of least resistance are two recut it with something public domain (if that's feasible) or to see if YouTube's Audio ID has licensing for it.

Unless the project is really, really notable, a documentary about a project in the 80s is likely to get dozens of views a year, so expending a lot of time and effort on it may not be worth it.

3. If it's in public, there is no right to image privacy in the US. Depending on the state law at the time, audio recordings might arguably be subject to the wiretapping laws but if it there was a camera clearly acting in a documentary fashion, that's a pretty weak claim, especially 30 years down the line.

As far as ethics, unless there's a reason why they'd be embarrassed by being associated with your group, I don't personally think there's a big need to worry about the ethics of a documentary, and even then I don't think there's a right to erase the past entirely just out of convenience. I think the sites that do things like post old arrest record photos for profit and so that people can mock the poor and foolish are on the wrong side of ethics when it comes to this but just showing people working on a public project together, even if they don't totally agree with the organization any more, is fine.
posted by Candleman at 4:50 PM on July 1, 2018 [3 favorites]

Sounds like 1&3 you're covered, unless there's a bunch of money involved being filmed or photographed in public is legal and a non-issue. It does seem like it would be a good idea to track down the composers representatives.

On refresh, Candleman has great detail. If it's a classical composer getting "synchronization" rights (I think the term for music used in the background) may be a formality. Most are pretty eager to have their works listened to. Important to have some acknowledgement though.
posted by sammyo at 4:55 PM on July 1, 2018

While the music may not be in the public domain, there is a very good chance that a professional cinematographer would have used music from a production library that from which he had a licence for use and distribution of the content.
posted by jmsta at 7:21 AM on July 2, 2018 [1 favorite]

Copyright is an absolute black hole of misaligned incentives, which can make it really difficult to do even "easy" stuff. To expand a bit on what was said, there is no requirement that the current owner of the rights to that recording, or the likely entirely separate owner of the composition, must register themselves so they can be found. If a company buys a copyright and goes out of business the next day, nothing happens to the copyright. If no one buys the assets, the work becomes orphaned, where it is out of print but not in the public domain either. Companies have been so successful fighting any kind of registration requirement (to avoid what happened with It's a Wonderful Life, for example) that even the initial filings may never have happened. The law gives more protection to "authors" (really the corporations who own the copyright) who register, but it's not required. So you might not even be able to find the original company, let alone the current holder, if any. There is a reason why clearing the rights for songs is a major portion of the budget of documentaries.
posted by wnissen at 9:05 AM on July 2, 2018 [1 favorite]

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