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Need to know: Payments to subjects in the non-fiction landscape

This week, Realscreen returns with ‘Need to Know,’ a series of articles featuring the perspectives of professionals on various issues impacting the non-fiction and unscripted production landscape, designed to give you the ...
February 1, 2021

This week, Realscreen returns with ‘Need to Know,’ a series of articles featuring the perspectives of professionals on various issues impacting the non-fiction and unscripted production landscape, designed to give you the information you need to know in an increasingly complex business environment. In this edition, we hear from Marc Simon (pictured left), chair of the Entertainment & Sports Law Department at Fox Rothschild LLP, and Daniel Spencer (right), an attorney in the department, about the dos and don’ts of compensating documentary subjects. 

It is a golden age for documentary storytellers — the demand for unscripted content, driven in part by the streaming platform boom, has cemented the genre as a core corporate media strategy.

This means bigger budgets to tell bigger stories.

As a result, documentary subjects are increasingly asking for their share of the budgetary pie. But, unlike reality television participants who are paid to appear in some of these commercial productions, documentary subjects historically have not been compensated for their participation.

Below, we analyze the industry standard — and exceptions to it — that subjects in documentaries are not compensated, ultimately urging filmmakers to preserve journalistic integrity by adhering to this long-held standard.

BLURRED LINE

ESPN’s Michael Jordan docuseries The Last Dance offers a recent example of this blurred line.

As reported by Forbes, Jordan received a fee of USD$3-4 million as an executive producer and the primary subject of the series (such accounts further state that His Airness donated the money to charity).

Traditionally, the documentary community has condoned payments to subjects in the narrow safe harbor of “honorariums,” which are small courtesy payments to subjects in recognition of their time and cooperation.

The clear basis for not compensating subjects is that, regardless of whether a documentary ultimately enjoys commercial success, the production of a documentary is a journalistic endeavor. Accordingly, just as print and digital journalists do not pay their interview subjects to prevent economic influence, custom and practice dictates that documentarians should similarly not purchase their subjects’ participation.

This principal is being tested with the production of more unscripted series that at times appear to skew towards commerciality, as well as more documentaries about celebrities. As a result, now more than ever, documentary subjects are asking filmmakers what they will be paid for their participation.

When filmmakers request our advice on responding, we generally advise explaining to subjects the impropriety associated with such payment. However, below are examples where payment to subjects may be appropriate.

THE RIGHTS EXCEPTION

The first exception is in connection with the acquisition of underlying rights. It is becoming increasingly common for unscripted producers to acquire rights in, and base their projects upon, books or articles written by individuals who appear in their projects.

Providing economic consideration for the audiovisual unscripted adaptation rights in and to such literary property (and sometimes even for a future contemplated scripted production) is fair game on the ethical playing field.

While the acquisition of life rights is not generally applicable to documentary production, the requirement of a period of exclusivity that prohibits subjects from appearing in other unscripted content is very much desired by producers and financiers.

This concept, also known as a holdback, can be incorporated into both underlying rights deals and documentary appearance releases. Pursuant to a holdback, the subject agrees to participate in a specific project, and to forgo participation in any other similar project for a period of time that customarily extends beyond the initial exhibition of the project.

Such exclusivity is often obtained in the unscripted space without compensation. However, an argument could be asserted that payment for the holdback in this circumstance is reasonable because the economic consideration is intended to prevent participation in other projects, rather than to compensate for participation in the applicable project, the latter of which is a clearer ethical conflict.

Borrowing from television news programs, it is common practice for outlets to secure an “exclusive” on a particular story without paying the source for the exclusivity. However, it’s worth noting that the holdback window from participation to broadcast of a news program is shorter compared to the holdback period between documentary production and exhibition.

ACCESS

Returning to the issue of “celebrity,” the concept of access – whether to intellectual property or to an individual – can also give rise to payment in unscripted productions.

Subjects, and certainly celebrities who own or control intellectual property, such as music, audiovisual recordings or even certain writings or memorabilia, may license such material for use in the project.

Such access agreement may also contain an exclusivity provision to limit the subject’s dissemination of the material to other projects.

In turn, celebrities who are accustomed to payment in consideration for their appearance in commercial ventures try to extend the principal of access to themselves – and can seek an access payment for their cooperation in connection with a documentary production. Projects that indulge such payment demands necessarily lose the badge of journalistic integrity.

DRAWING A LINE OF INTEGRITY

The relationship between filmmaker and subject is evolving as the documentary and unscripted genre continues to expand its impact on the market.

Ultimately, it is the filmmaker’s responsibility — and, we argue, it should be the responsibility of the networks and streaming platforms — to draw a line of integrity when it comes to issues of payment.

In adapting to a more sophisticated deal landscape, the rule should not be swallowed by the exception, and filmmakers and buyers should be wary of individuals purely focused on the economic benefit of their cooperation and appearance in a documentary.

In such cases, documentary filmmakers must be willing to either walk away from those subjects or disclose to the audience that the subjects were compensated in order to preserve the journalistic integrity of the project.


This article is provided for general information only and may not be relied upon as legal advice.

Marc H. Simon is the Chair of the Entertainment & Sports Law Department at Fox Rothschild LLP. An award-winning documentary filmmaker, he is a seasoned entertainment attorney with a broad range of experience in film, television and digital media. He can be reached at msimon@foxrothschild.com.

Daniel I. Spencer is an attorney in the Entertainment & Sports Law Department at Fox Rothschild LLP who advises clients in a variety of entertainment matters pertaining to financing, development, production and distribution. He can be reached at dspencer@foxrothschild.com.

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