As a documentary filmmaker, you could be working on a variety of projects – an investigative story, or observing animal behaviour. When filming a documentary, there are several legal issues that you should first consider, particularly regarding telling other people’s stories and filming objects. Below, we set out eight points to remember when shooting.
Each state and territory in Australia regulate filming “private acts” to reflect a reasonable expectation of privacy. In NSW, section 91K of the Crimes Act 1900 (NSW) states that it is an offence to film an individual engaged in a private act (e.g. undressing, using the toilet, showering or bathing or involved in a sexual act). A breach can see the offender facing two years imprisonment or an $11,000 fine or both.
Similarly, each state and territory has a legislative regime addressing using a surveillance device (i.e. a video camera) to record and publish a person’s private activities and conversations.
In NSW, the Surveillance Devices Act 2007 (NSW) (Surveillance Act) prohibits the use of a video camera where you trespass onto private property. The Surveillance Act also prohibits installing, using or maintaining a video camera to record a private conversation, whether or not you are a party of those conversations. To do this, you will need to obtain a relevant warrant from a magistrate or judge.
Defamation is an especially important legal consideration for filmmakers who may be documenting a personal story. Defamation can arise where you publish your film, to a third party, and you have damaged a person’s reputation by an untrue comment or innuendo. You can be liable even where you have not specifically mentioned the person’s name, so long as their reputation was diminished, and they can be reasonably recognised.
There are full defences available in the case of defamation. For example, if you can show your film is true, or you can demonstrate that it was an expression of your honest opinion, and you made it clear that it was only your opinion.
In documenting a personal story, you may have access to confidential information. If you use that information without consent, you will be breaching confidentiality. The court may order that you destroy the information, apologise and pay damages.
As a documentary filmmaker, you should avoid making misrepresentations about whether the person you have filmed has endorsed your production. Misrepresentation can arise where you are recording a well-known figure. If the public is incorrectly lead to believe that he or she is supporting your film, the unauthorised use of their story in connection with your film may constitute misleading and deceptive conduct.
Often, it will be important to obtain a copyright clearance. By way of example, you may require one if you are documenting a story about a notorious celebrity. It is highly possible that someone else has already made a film, book or song about that same person. Without a copyright clearance, you will be infringing that person’s work if copyright law protects the work and you use a “substantial part”.
7. Filming Objects
Much of the above deals with when you are filming a story about an individual. There are provisions in the Copyright Act 1968 (Cth) which allow people to film buildings and sculptures. However, you should be cautious of other council and state regulations which may be applicable.
For example, regulation 4(1)(b) of the Sydney Harbour Foreshore Authority Regulation 2006 (NSW), prohibits shooting in a public area for a commercial purpose. Similarly, if you are filming for a commercial purpose in a national park or reserve in NSW, you will need to complete a filming application through the Office of Environment and Heritage (NSW), along with the applicable fee and a copy of your public liability cover.
8. Releases and Approvals
In any of above situations, you can minimise your risk by obtaining a release or clearance from the person you are documenting. A release is a written agreement between you and the person you are filming. The release will include warranties that your subject will not later bring an action against you for defamation or breach of confidence. Notably, if you have received funds from a certain organisation, they will usually require you obtain a release form before they grant you any funding.
Evidently, there are multiple legal issues for documentary filmmakers to consider before they begin shooting. If you are unsure about whether you can film in a certain area or need assistance drafting your lease forms, get in touch with our intellectual property lawyers.