Release and Consent Agreements are frequently used by producers in the film and television business to obtain consent to film and record a participant, commercialize the participant’s contributions, and to prevent litigation. Producers often rely on free release forms available for download online, but how can they be sure that these online forms provide sufficient protection, especially in the areas of reality TV or documentary type films where participants may be portrayed in an unanticipated manner and resort to litigation as a remedy. To assure proper protection, producers and their attorneys should include the following six clauses in their release and consent agreements: (1) preamble; (2) consent; (3) assignment; (4) waiver; and (5) jurisdiction; and (6) irrevocability. Furthermore, producers should keep the release short and simple.
Clause 1: Preamble
Preambles generally identify the type of agreement, the date the agreement is signed, and the parties to the agreement. In a release, the preamble should include an acknowledgement regarding consideration and state that the participant is receiving either a fixed sum or an opportunity to appear in producer’s project in exchange for agreeing to the terms of the release. This makes clear to the participant that an agreement is being formed and that consideration is exchanged.
Clause 2: Consent
The release should also contain a consent clause which makes clear that the participant agrees to be filmed and recorded. This clause should also include a broad description of the project to be filmed. The following is an example of a broad description which was used in the famous release agreement for Sacha Baron Cohen’s film, Borat: “participant agrees to be filmed and audio taped by producer for a documentary-style film.” Using a broad description such as “documentary-style film” prevents the participant from later claiming that he/she was not aware of the type of project he/she would appear. Simultaneously, a broad description also prevents the producer from having to commit to a specific genre or category.
Clause 3: Assignment
One of the most crucial clauses in a release agreement is the assignment of rights. This clause grants the producer the right to use participant’s image, name, likeness, and any other rights needed to include participant in the project, and also grants producer ownership rights for all of the participant’s contributions. These granted rights serve two primary functions: (1) they prevent the participant from claiming that the producer misappropriated, infringed, or violated the participant’s rights of publicity or privacy; and (2) they prevent the participant from claiming an ownership interest or profit participation rights in the project. Therefore, the assignment clause must broadly assign all of the participant’s rights in the project to producer and make clear that participant owns nothing. Drafters should be especially careful when preparing this clause and should make sure that the assignment covers all intellectual property rights as well as all publicity rights, and mentions all of the possible types of uses including commercial use, advertisement, and promotion. Moreover, the assignment clause should also grant producer any and all rights including derivative, ancillary, and product rights.
Clause 4: Waiver
A waiver of claims clause should also be included in the release to prevent the participant from later suing the producer for claims arising from participant’s involvement. In additional to including a general waiver covering all possible claims, the producer should list every claim that could be anticipated including: (1) rights of publicity infringement or misappropriation (2) copyright and trademark infringement (3) invasion of privacy (4) misappropriation of idea or concept, (5) defamation, libel, or slander, and (6) fraud. Having the participant waive all anticipated claims will require the participant to have the release rescinded by the court in order to bring any of the listed causes of actions, which is quite challenging for a litigant to do.
Clause 5: Irrevocability
An irrevocability clause further limits the producer’s liability by stating that the agreement is irrevocable, preventing the participant from arguing that the agreement was previously terminated. This clause once again requires the participant to have the court rescind the agreement before bringing any claims which fall outside of the four corners of the agreement.
Clause 6: Jurisdiction
The release should also include a jurisdiction clause which specifies the state law governing the agreement and any arising disputes, as well as a specific forum for bringing claims in the event that a claim is brought. Before selecting a jurisdiction, the producer should consider both the practical and legal consequences of selecting the governing law and forum choice. From a practical standpoint, the producer should select a convenient litigation forum such as the state and county where producer resides. From a legal standpoint, the producer should also consider selecting a state with favorable laws in the event the producer is sued for claims anticipated. For example, many releases include a New York choice of law clause because New York does not recognize either a common law right of privacy or a common law right of publicity, making it especially difficult for a participant to sue a producer for such claims.
Keep it Short and Simple
In addition to including the above mentioned clauses, it is important to keep the release short and easy to understand so that the participant can’t later argue that a layperson cannot reasonably understand what was written. Keeping the agreement short and simple would convince a judge that a reasonable reader could have easily understood what he/she was signing. It is recommended to keep the release one page long and avoid the use of legalese, allowing an average person to understand what is being agreed to. On the other hand, if you provide the participant with a lengthy document containing complex and ambiguous language, the court may find that a layperson cannot reasonably be expected to fully comprehend the release, and allowing the release’s complexity to be used as a factor in favor of a participant’s claim.
It is strongly encouraged to consult an experienced entertainment attorney to draft or review your consent and release form before execution of the agreement. Contact attorney Avi Dahan at Dahan Law Group for your free consultation at:
Phone: (310) 906-1706