You are visiting a quiet town outside the city. As you turn the corner, you come to a standstill. There it is, the place you’ve been looking for, the perfect location for your upcoming film. The quaint side street flanked by charming cafés you’ve been picturing in your mind for weeks. As you look out at your serendipitous discovery, you let the production team know — the search has come to an end.
Sounds to good to be true? Well, it might be.
Filming on location invites a series of legal considerations. At locations like popular venues or historic sites, the process of obtaining the right releases or permits is often streamlined. These locations are familiar with the industry and usually have a comprehensive procedure to support on location shoots.
This leaves us with the lesser-known locations — the seemingly abandoned field, the empty alleyway, or the quiet small town street. Breaking the rules first and asking for permission second might work in some contexts, but expensive film productions is not one of them. Instead, the next time a potential filming location presents itself consider the following three questions.
1) Whose property are you on?
The first step is to figure out who owns the property you want to shoot on. If you’re dealing with private property, you will need to ensure you have the correct release from the property owner giving you permission to film at that location. If the location is public, you will likely need a film permit issued by the local government or a similar body responsible for that property. While the process of figuring out ownership is sometimes straightforward, some locations will require you to do some digging. Whether it’s calling local government or consulting public records, having the right party on the other side of an agreement is imperative. If you are dealing with an agent on behalf of an owner, you should require proof of that agent’s authorization to provide a release. If there are multiple owners, you will want to ensure that all of the grantors add up to 100 % of the ownership.
It is also helpful to consider which areas of the property fall within the owner’s possession. While the entirety of the property may appear to belong to one owner, this might not be the case. For example, if you intend to shoot on a farm field, you might automatically assume that the same owner is responsible for the physical structures on the farm you plan to house your cast and crew in. Likewise, if you’re planning exterior shots of a residential property that backs onto a golf course, the property line distinction may not be immediately apparent. The areas a production intends to use, for artistic purposes or functional ones, should be confirmed as falling within the real property description detailed in the location agreement.
Since a complete location release or permit is often required for insurance purposes anyway, taking the time to ensure you have the ownership piece correct is essential.
2) What’s in the background?
Location agreements grant rights to a production company to record and depict both a property and whatever is located on it. On a studio set, you can control what makes it into the final product and as a result avoid potential intellectual property mines. However, filming on location requires you to turn your mind to everything that is captured in the footage. Mainly, the issue of other protected works making their way into your final product.
Let’s say our dreamy small town street features a prominent logo for a famous coffee shop or has a public art installation that sneaks its way into the footage. Regardless of whether that inclusion was intentional, the use of these elements without permission can lead to legal trouble.
Errors and omissions insurance will generally require that these types of inclusions are subject to a clearance process. When not considered ahead of time, obtaining clearances can be a lengthy and expensive undertaking. Often, the potential solution of digitally altering footage or reshooting scenes is not feasible. Of course, there is the option of relying on certain intellectual property exceptions that purport to cover this type of use. For example, section 32.2(1) of the Copyright Act permits the reproduction in a cinematographic work of a sculpture, work or artistic craftsmanship that is permanently situated in a public place. Section 30.7 of the Copyright Act also allows for incidental uses of a copyright protected work in another work where the use is not deliberate. There may very well be a time and place for these exceptions. But whether it’s the risk of relying on ambiguous common law interpretation or because insurance providers will inevitably require them, it is still preferable to obtain the right clearances for elements appearing in a work that are protected by intellectual property rights.
With this is mind, potential locations should be reviewed for elements that could complicate the clearance process. Having the foresight to consider what might show up in your footage may very well dictate whether the location you want to use is ultimately worth it.
3) Is it a functional choice?
Shooting remotely requires production teams to bring everything and everyone to the location. Depending on the size and nature of shoot, the functional use of the space and its inherent limitations should be considered.
Is there readily available access to electricity, water, heat, or washrooms? If not, is this something that can easily be remedied given the physical location of the space, the budget, and timing constraints? Is there enough space for the cast and crew and their needs? Are there contractual obligations that require a separate holding area for key talent? Can your location accommodate this?
It is also helpful to consider whether the property can be available for future use if re-shoots or additional footage is required. After all, shooting on location at a local festival that happens once a year can cause quite the headache if it turns out part of the footage isn’t usable.
Ultimately, the challenges that stand in the way of shooting on location need not be the deathblow to your production dreams. Many of these issues can be rectified with careful planning.
That quaint side street can indeed be yours to shoot on, as long as you ask some questions first.
If you would like to discuss this blog post, please contact Bob Tarantino or articling student Karin Kazakevich.
