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Renting a School's premises out for a film crew: the good, the bad and the ugly- 12/04/2011
Case study
A medium-sized private boarding School is approached by an independent film company (‘Filmco’), which wants to use the School premises (both the buildings and the grounds) as the location for their new film. The film company is particularly interested in the School’s architecture, and a distinctive weathervane on the roof. Filming takes place during the long summer holidays, when most staff and pupils are not resident. However, when filming takes place there are three pupils in residence, and the film company asks to use them as extras. The film becomes a box-office success, and a range of merchandise is released, which proves very popular. The merchandise bears the image of the School’s weathervane. The School is very proud of its association with the film and shows the film to pupils and parents at special screenings. The success of the project is only marred by the film company being very slow to pay the location fees.
Licence to use the property
Before allowing Filmco onto the School premises, the School must check whether the terms of any lease or restrictions on the School’s HM Land Registry title restrict the School’s ability to let Filmco into occupation. Assuming filming is permitted, the School will want to limit those parts of the School property to which Filmco has access, and at what times. A formal licence agreement can be used to set out detailed provisions regarding access, keys, times of access, toilet facilities, any restricted areas, waste disposal, use of electricity and water, etc. – as well as any fees or costs which the School may want to claim from Filmco in return for its occupation.
It will also be important for the School to consider whether any of Filmco’s activities on the premises could become a nuisance to neighbours or adjoining land. Noise, emissions, lights and the general paraphernalia of filming may need to be carefully limited to ensure that neither Filmco nor the School can be found to be liable to neighbours for disturbance.
Protection of School's "Image"
The School should consider legally protecting distinctive signs or images belonging to the School using registered trade mark law, as these are potentially valuable "image" rights. Registration provides a practical way of protecting the School's right to exploit these images commercially in future, and prevents unauthorised third parties from using them. Formal registration also strengthens any claim the School may make under copyright or ‘passing off’’ laws.
The School can register any distinctive sign which is capable of being graphically represented as a trade mark – which could include a word, image, slogan, sound or even a colour. The School could therefore seek to register its name, crest, motto and/or any specific images – such as the weathervane. The trade mark(s) must be registered in specific categories - for example, merchandise, clothing or other goods/services for which the School (or Filmco) intends to exploit the trade marks. The School can choose, in consultation with Filmco (if appropriate), in which countries to register the trade marks (e.g. just the UK, throughout the EU or further afield) depending on the geographical reach of the film or proposed merchandising activities.
The School could then provide Filmco with the right to use the trade marks on various publicity materials and merchandise, for an appropriate fee.
Accuracy of contracts:
There should be a written contract in place between the School and Filmco, which should be signed before any substantial access is given and before any filming is started. Should differences in expectations become apparent whilst the filming is taking place, the resulting dispute could overshadow the work, or worse still, the School may end up liable for costs it never anticipated.
The contract should clearly set out the responsibilities of each party and in particular:
- what Filmco will be permitted to do, e.g. access specified parts of the School between specified times and specified dates;
- what Filmco will be required to do, e.g. protect playing fields from damage; and
- what Filmco is not permitted to do, e.g. show the name or logo of the School.
In addition, the contract should:
- describe payment provisions (see more below);
- limit the liability of the Schooland obtain appropriate indemnities from Filmco to protect the School in the event of property damage or physical harm; and
- give the School the right to terminate the contract if Filmco does not behave appropriately.
Payment provisions
The School should consider how and when it will receive payment from Filmco for the use of its premises and this should be set out clearly in the contract. The School could also insist on a refundable deposit, to cover the cost of making good any damage caused during the filming.
It would be sensible for the School to seek payment of some or all of the licence fee in advance, before Filmco are permitted access to the premises, to guard against Filmco suffering any future financial difficulties. If Filmco does not agree to making payment upfront, the School should carry out credit checks to ensure that Filmco has the means to pay before the contract is concluded. If payments are to be staged throughout filming, the School should consider including provisions entitling the School to take possession of Filmco’s equipment, pending full payment.
However payment is structured, the contract needs to specify timescales for payment, the consequences of non-payment (for example, accruing interest on any money owing), and that any costs incurred in chasing payment are recoverable from Filmco.
Site safety
During ‘normal’ operations, the School must ensure that its grounds are safe – for staff and pupils, visitors, and even (to a lesser degree) to trespassers. The School must ensure that none of Filmco’s activities – including active filming, green room areas, equipment being transported or stored, cables, waste and any temporary buildings – present a hazard to anyone else present on the School’s property.
Responsibility for health and safety must be clearly defined in the contract. Risk assessments must be undertaken for all new activities. Filmco must also ensure that the School is aware of any implications for its staff – for example, staff and visitors should be informed if areas of the School cannot be accessed during filming, and routine maintenance work may need to be rescheduled. Any hazards (such as cables or stored equipment) must be clearly marked, and an alternative access route and/or fire exit routes found and clearly marked.
Pupils used as extras
Exciting as it may be for the pupils, the School cannot simply allow pupils to take part in the film as extras – consideration must be given to who will chaperone them. The School currently has obligations under the Safeguarding Vulnerable Groups Act 2006 to ensure that anyone involved in a “regulated activity” is not a “barred person”. So any parents, Filmco employees or other chaperones who supervise, instruct, train or teach the pupils where this activity occurs more than once a week, for four days or more in a single month, or overnight between 2am and 6am, must undertake an Enhanced CRB disclosures from the Criminal Records Bureau on such persons prior to employment/engagement. The School is likely to have already carried out such checks in relation to its existing staff – but obviously not for Filmco employees. The School should also be aware that if it knows or has reason to believe that a Filmco employee engaging in a regulated activity has been barred, then the School has an obligation to refer the matter to the Independent Safeguard’s Authority or it could be committing an offence.
Equipment & insurance
The School needs to identify - through discussion with the school’s own insurers and Filmco - all risks which will require insurance cover, or additional levels of insurance cover, during the filming. This might include fire and property damage, personal injury to staff, pupils, actors or Filmco employees, or any failure by Filmco to meet its contractual obligations to the School.
The School’s contract with Filmco should allocate the different risks between the School and Filmco; for example, although Filmco’s equipment will be stored on the School’s property during filming, the School should ensure that it remains the responsibility of Filmco to ensure against damage or theft. The School must ensure that there are no gaps in risk allocation.
The School will need to ensure that it has appropriate/additional insurance cover for those risks allocated to it – and the School may wish to recover any additional cost from Filmco. The School must also be careful that insurance policies are not inadvertently invalidated by:
- failing to tell the insurer fully about the risk(s) or any other relevant policies;
- acting inconsistently – for example, if Filmco is responsible for the safety of its equipment, the School should not offer to store equipment without first checking with the School’s insurer; or
- either the School or Filmco failing to abide by the conditions of insurance; both parties must make full disclosure of any relevant conditions on policies.
Fire safety
The licence agreement should set out how responsibility for fire safety will be divided during filming. Fire safety is usually the responsibility of the employer and any buildings/land that they occupy – and hence the School is normally responsible for staff, pupils, visitors and the school premises. If Filmco accept responsibility for specific areas within the grounds, the contract should specify this; Filmco as responsible; if facilities are to be used by both School staff and Filmco (even if at different times of day), it may be simplest for fire safety to remain the responsibility of the School. If so, specific reference should be made within the contract to issues such as increased risks caused by the filming, and any conditions which Filmco must observe (e.g. not blocking fire exits) to protect the School from liability. The contract should impose a duty on both parties to co-operate with each other to ensure safety at all times.
Screening the Film to pupils and parents
Although films shown for educational purposes do not require a licence, screenings for entertainment do. Therefore, if the School wishes to screen the film to pupils and/or their parents, regardless of whether the School sells tickets or provides the screenings free of charge, two licences will be required.
These are:
- A premises licence(under the Licensing Act 2003), which can be obtained from the local licensing authority. This controls the time of the showing, audience capacities and safety matters (such as seating arrangements, stewards, etc.). The School may already have a premises licence, but will need to check that film screenings of this nature are covered; and
- A screening licence– this permits the public screening of the film within copyright law (i.e. the licence fee provides for royalty payments). There is no ‘universal’ screening licence, but instead these are available from either Filmbank (www.filmbank.co.uk) or Motion Picture Licensing Corporation (www.mplcuk.com) depending on the circumstances of the screening – such as the film studio promoting the film, whether an admission charge is made, whether the showing is indoors or outdoors, how many times the film will be shown, and the overall duration of the licence required (these are generally available for up to one year).