Ep. 57 The importance of getting consent from your film's participants

When you're making a documentary film it is important that you get consent from the participants who appear in your film, or you might find yourself in quite a pickle. 

I know, sometimes it can be a little unclear as to when and who you need to get consent from. Luckily, in this episode of Moonshine Moonshot I'm going to break down everything you need to know about consent, AKA: how to get permission to use the footage you capture!

Consent forms are sometimes called Talent Release forms or Participant Release forms or Participant consent forms. Basically, its a legal document that specifies the terms they are agreeing to, to appear in the film you're producing. 

So when you're ready, jump into today's podcast and start making movies!

You can also follow us on social via these links: 

Moonshine Communications Academy Facebook @MoonshineCommunicationsAcademy https://www.facebook.com/MoonshineCommunicationsAcademy

Instagram @moonshinecommunicationsacademy

https://www.instagram.com/moonshinecommunicationsacademy/

Twitter @moonshinecomms
https://twitter.com/MoonshineComms

LinkedIn Mike Hill 
https://www.linkedin.com/in/mikehillmoonshineagency/

LinkedIn Sue Collins 
https://www.linkedin.com/in/sue-collins-moonshine-agency/

LinkedIn Company Page Moonshine Communications Academy  https://www.linkedin.com/showcase/moonshine-communications-academy

📩 Want to stay up to date with the latest? Head to www.thedocumentaryfilmmaker.com to join our weekly newsletter and get all resources to make you the best impact filmmaker in the business. 

Find & Follow The Documentary Filmmaker on social:
Website: www.thedocumentaryfilmmaker.com
Facebook:
Instagram: @TheDocumentaryFilmmakerPodcast
LinkedIn: Sue Collins [Host] || The Documentary Filmmaker [ Company Page]

Transcript

Copy Transcript Copied

SPEAKER_00 0:03

Greetings, movie makers, and welcome back to the 57th podcast. Yep, that sounded like the opening statement from the Oscars. But it's exciting because we're also at part three in the production section of our Moonshine Moonshot series on how to produce a documentary. And that really puts it into perspective how big a job it is to make a documentary. That we're only at part three, and I think there's probably going to be about eight parts to the production section of this series, which releases weekly, by the way. So if you're not familiar with this podcast, it's out every Tuesday. And luckily, all of the previous podcasts are right at your fingertips, and you can easily skip back and revisit anything you've missed or that you're still feeling uncertain of. Now, this episode today is all about how to get permission to use the footage that you capture. Sometimes this is called using a participant release, a talent agreement, or a consent form. So why am I telling you about this? So glad that you asked. I'm Sue Collins and I'm your host on the Moonshine Moonshot podcast on making movies that matter. And I'm also part of the team behind Moonshine Agency, which is an impact film production house producing multi-award-winning films that have a positive social impact. Now, impact films, if you're not familiar with them, are films that are designed to take an audience from passive viewing into being an active participant. It gets them doing something, gets them involved and being part of a solution. Now, I have recognized that learning how to craft a film is a very challenging process. And when I was just starting out, it was very hard to find information and learn about filmmaking without formal study or without being under the wing of a mentor. So things like avoiding the pitfalls of being pigeonholed, running out of funding, or simply not understanding the business side of the industry. Well, that's meant that over the years I've seen many people with a lot of talent give up or simply move on to more stable work. But my hope is to see the industry thrive here in Australia and beyond. And I recognize that to do that, I've got to be more open with sharing my skills and helping others learn the craft. So I have decided to use this podcast platform to share more of what I've learned through many years of filmmaking and also over at the Moonshine Communications Academy. So make sure you check out the Academy, particularly the resources section, because it's where you can find access to free downloads like check sheets and ebooks. And even if you haven't come across them already, there are some great online courses available through the Academy, such as Define Your Ideal Audience, which helps you figure out who your project is best suited to well before you even roll camera, and that is gold for marketing your film when you've finished it. And that is why you're here today, because you want to know how to finish your film. So we are in the production phase, and now we are talking all about participant consent. Signatures, signatures, signatures. And unfortunately, not the autograph type. It's a bit more formal and dull than that, but extremely important to making sure you don't hit complications downstream with the use of the footage that you capture. So with every exciting task comes an equally important, but perhaps not so exciting task. And this week it's obtaining consent to use the footage you film. You need assigned consent form from every single one of the people that you film as talent to ensure that they agree with participating in your film. And I can't stress enough how important it is to get this in writing on the day that you film. If you've got a really good relationship with your talent, they may just give you the thumbs up or give consent to camera. Maybe they've even said, you know, in email, which it's just not quite good enough to cut the mustard for any of your distributors. They will want signed documents. And why? Because unless it is in writing, your on-screen talent can claim they didn't know you were filming them, and then they can say they didn't want to be involved. And if you don't have that piece of paper in writing stipulating the terms of what they were agreeing to, there's really not very much you can do. So that's why it's important to have it written down. And there's plenty of versions of consent forms or talent agreements. You just speak to your production lawyer, they will have them on file, and you can adapt them to your own production. There's all sorts of terms that are written into these documents that you're not going to remember to say verbally to get that thumbs up, which is why the, you know, not written consent or even in email doesn't count as much because you haven't got the terms set out. So you can have your participant claim they didn't actually know what they were agreeing to, but if they've signed it, you've got it. You've got your hard proof that they committed to being part of your film. And it sounds ridiculous because if someone can sit down in front of your camera and then claim that they didn't consent to being interviewed, it just sounds absurd. How could they not know you were filming them? But it does happen. It doesn't happen often, but it does happen. So, in short, inform your talent and get their signature on the dotted line. Once you've done that, not only are you ticking all the legal boxes, but it should also act as encouragement that your talent won't attempt to drop out of the film once you've completed it. So let's dig into it a bit more. What do I mean by informed consent? So, in short, it's informing your participant to the absolute best of your ability as to what your film is about and the role that they will be playing in it. This isn't just a name and date on a piece of paper. That squiggly little line does not mean much if the talent doesn't really understand what they're signing. So ensuring that you've verbally explained the document and what they're agreeing to, it's really important that your participants are really informed. So break down the film, what's the key motivations? What's the story you're telling? Where will it be shown? How do people see it? Is it going to be on, you know, a streamer or is it going to be on YouTube? Give as much sort of detail as makes sense and try to be really specific about the way in which you'll use the footage that you're capturing with them. And anything and everything you can explain will just help them make an informed decision about signing that piece of paper. They'll be all the more grateful for understanding what they're committing to, and you can be much more confident that you're receiving a crystal clear consent that is not confused and will hold up. And some people won't need this level of explanation at all. Some people are actually very happy to sign. I'm amazed at how easily people will sign legal documents without reading them. But you have to remember that some people also don't read English. English may not be their first language, and they just simply may not have the literacy skills to understand a really dense legal document. So explaining it to them verbally is going to make them feel much more comfortable about signing it. Um I think that's pretty self-evident, really, the reasons why you would do that. But it also includes explaining to people if you're going to make a short film for YouTube. Is there going to be social media that it's used in as well? Is it only for the feature documentary? Just once it's published, it is very hard. In fact, it's not easy at all to take it offline. So the clearer you are about your intentions for the footage, the more that that participant can understand what they're committing to. Because, you know, once you've invested, you know, all the time and energy into capturing the interview, doing the post-production and releasing it, the last thing you want is for someone to pull out at the 11th hour and you have to do all the expense of recutting and everything that the nightmare that goes with that. If someone speaks to camera, then you need their permission to use that footage. If you're filming a large crowd in a public place and nobody is particularly identifiable, you usually wouldn't need a signed consent from every single person in the shot. And let's be real, like it's almost impossible to do that. But as soon as you're in a private space or on private property, that's when you need to get consent. But whenever you're in doubt, consulting with your production lawyer is always going to be the best call because that's what they're there for. They're specialists in this, they know exactly what's okay and what's not okay. But good rule of thumb, if someone speaks to camera and they're clearly identifiable, get their consent in writing. So something else we should probably talk about is trust. Trust and consent. And a question that's regularly posed to me is when is the right time to ask someone to sign that piece of paper? And understandably, many would argue that the time to ask for it is before you've even picked up your camera and filmed anything. But having produced countless films, I would suggest that the best time is actually after you finish filming, immediately after you finish filming, before you pack up, before they leave the set. The reason is that it allows you throughout the process of filming them to build that trust and rapport. And it's a trust that may not be there the second that they arrive to meet you initially or as soon as they sit down in front of the camera. But once you've interviewed them, they're gonna know what you've asked and they're gonna feel much more comfortable signing a legal document, giving you permission to use whatever it is they've said because they'll remember what they said and they'll feel comfortable about it. So now, of course, being an ethical and wonderful filmmaker, you wouldn't mislead them on your intentions for that footage, would you? But I'm sure you see the logic that they may not know until after they've actually answered your questions just how you're going to frame this particular piece of footage in the output. So if your talent signs after the filming, they know what's been recorded, they know what has been said, and they know that you are giving them a choice to refuse. So if they then proceed to sign, you should feel pretty confident about their contribution to your film. And I really guess it comes down to what kind of filmmaker do you want to be? Even though they've signed that consent form, this doesn't mean that ultimate power has now been handed over to you. It all depends on how you position yourself as a filmmaker and the ethics and codes that you abide by. Now, for example, on our last film here at Moonshine Agency, we had participants, two of them, in fact, withdraw their consent even after we'd gone through this whole process and they'd signed an agreement and they were very clear on what they were committing to at the time. And we were well into post-production. The film was very near picture lock, and we were incredibly excited because the film was progressing, and the participants in question had contributed really meaningfully to the film. And the reasons were outside of our control. They had decided they wished to withdraw from the film. Their reasons had nothing to do with the film itself, but there's some other very specific life circumstances that meant from personal reasons they needed to withdraw. And even though it was really difficult and time-consuming, and I have to say, incredibly frustrating, we accepted this and we hold the belief that a participant does not wish to be involved in the documentary. We need to consider that big picture and the reason why they don't want to be included. Because as a filmmaker, you have invested time and money. So the better your process is around obtaining informed consent, the chances of a participant withdrawing or wanting to withdraw is greatly reduced. And look, a lawyer could argue strictly that once someone signed that consent, once they've signed that piece of paper, you are well within your rights to use that footage. And that is strictly true. But you've just, as I was just saying, you've got to consider the big picture. Is it really the right thing to persist if someone does want to withdraw? You've got to think about the reasons and the rationale. Every case will be different. So honestly, I think this has only happened having someone withdraw on three occasions in the last 15 years across eight major productions and hundreds of short films that I've produced. So my fingers and toes across for you that you don't have any of these issues. Consent is tricky, so making it as black and white and transparent as possible is really the best way to ensure success. And if you're ever in doubt, Moonshine Communications Academy is your best friend and your best resource. So don't hesitate to reach out if you're if you're a little confused or needing a few more pointers on how to obtain informed consent signed from your participant to make sure that you know you're dotting your I's and crossing your T's. Next week in the podcast, Moonshine Moonshot, the production journey continues and we'll be diving to all things cameras and tech. So if you're not already, be sure to check us out over at Instagram where we are regularly uploading helpful hints and guides to make sure your production goes incredibly smoothly. Now I'm Sue Collins, and you've been listening to the Moonshine Moonshot podcast. And I'd love it if you could help me out. Hit subscribe, and I will be back next Tuesday with more on all things cameras and tech. Speak to you then.