Television is the most heavily regulated industry in the world. Apart from nuclear power. And the railways. And industrial chemicals. Oh, and airlines.

The rules and regulations that you must obey when you make a programme fall into three categories:

• criminal law
• civil law
• and the various broadcasting codes and standards.

CRIMINAL LAW

Obviously, you shouldn’t commit any criminal acts in order to make a television programme. Easy to say, but it’s not quite as simple as that – at some point in your television career you may well be faced with decisions that take you onto the fringes of criminal activity.

Moral: if you’re going to stand your ground on an issue, you need to be very, very sure that you know what you’re talking about. There is no specific law in Britain that says you can’t film in a public place, but there are lots of grey areas within the law that mean the police can stop you if they really want to – especially if you start to argue with them.

Another grey area is the idea of ‘public interest’. Say you’re working on a documentary piece about how easy it is to smuggle weapons onto an aircraft. You might be justified in trying it yourself, in order to get dramatic visual evidence of just how lax airport security is. But there’s a huge risk involved because you’d be breaking the law. Such a sequence would need to be approved in advance by a very senior executive from the production company. And cleared by the broadcaster. And checked by legal experts. And you could still end up going to prison.

If you’re doing any sort of story involving courts and the legal system, warning bells should ring in your head. There are restrictions on discussing on-going trials, which can have serious criminal penalties. The details are beyond the scope of this book, but beware of dabbling in legal stories unless you’re absolutely sure of the rules.

Breaking health and safety regulations can also incur criminal penalties – see Chapter 9 for details:

CIVIL LAW

The three areas to be aware of are:

• defamation
• trespass
• copyright.

DEFAMATION

Libel is defamation published in permanent form. Slander is defamation by unrecorded speech or gesture. In the UK, broadcasting is regarded as publication in permanent form, so broadcast defamation is libel. British law aims to protect the reputation of individuals, while at the same time allowing free speech and fair comment. The key test – for both the court and the producer – is: does this statement cause quantifiable damage to the individual? If you say (or imply) in a comedy show that the Prime Minister wears funny pyjamas, it’s not defamation because it doesn’t cause any damage to his reputation. But if you say (or imply) that an actor is gay, prepare to get sued. Even in the twenty-first century it can be libellous to say that someone is not heterosexual.

It’s possible to libel someone quite by accident. A regional journalist was once putting together a story about the trial of two police officers who’d been doing something illegal – to protect the innocent, let’s say claiming fraudulent expenses. He didn’t have any pictures of them arriving at court, so he used some library shots of the court building. By a stroke of horrible bad luck, there were two completely different policemen in the library shots. They claimed that the item was libellous, as it could have led people to assume that they were the accused. The courts agreed, and it cost the TV company a bundle of money.

TRESPASS, LOCATION FEES AND FILMING PERMITS

Anyone who enters private property without permission is trespassing. But trespass that causes no damage is not a criminal offence in Britain – so those notices that say ‘trespassers will be prosecuted’ are bluffing. But the property owner can sue a trespasser, so it’s important to get permission before filming on private land. Once the property owner has given permission, he may well ask you to pay a location fee.

If you’re filming abroad, be aware that you may need a filming permit, even to film in a public area. And if you’re filming in America, assume that you will need one, especially if you’re filming in a city (check by phoning the Mayor’s office). The city of LA is the worst place in the world for filming permits. It’s a city that makes its living out of filming, and they have an entire office set up to take money from film-makers, no matter how big or small. You need a permit for every set-up: that’ll be several hundred dollars, please, for the 20-second PTC on a Hollywood sidewalk; and another several hundred for the walking shot on Venice Beach. We shot a story in an LA flood channel, but unfortunately the bit of flood channel we wanted to use was owned by two different authorities – the City of Los Angeles, and the Corps of Engineers – so we had to buy two separate permits, at a cost of almost a thousand dollars. All for two hours of filming.

That’s the bad news. The good news is that once you’ve bought your permit you will appear on the city’s daily ‘Shoot Sheet’, a list of all the productions shooting anywhere in LA that day – so you could find yourself billed next to Steven Spielberg!

(A confession: for budgetary reasons, I have sometimes filmed without a permit, grabbing shots on the run, just one step ahead of the law. It sounds romantic and thrilling, but in reality it’s terrifying, and very bad for your blood pressure. I could never officially advise you to film without a permit in areas where one is required – if you do, the police have the right to stop the shoot, which would be catastrophic if you were on a tight schedule.)

COPYRIGHT

Every clip of a movie, every photograph, every snippet of archive film, every bit of artwork, and every piece of music is owned by someone. And if you want to use it in your programme, you have to pay for it. Once you enter the area of copyright, you need to tread carefully; it’s a minefield. Here are the danger areas.

Music

Music always costs money. Every bit of music you use in a programme must be logged in detail (title, writer, publisher and recording artist) and paid for, whether it’s a recording of a live band, or just a snatch from a CD.

Here’s a cheap and cheerful guide – but always check with an expert. (Or at least send an e-mail to someone higher up than you so that they’ll get the blame if it goes wrong ...)

Suppose you want to cut a montage to a commercially available track. You’ve got the CD in your hand, but that doesn’t mean you can use it, because the copyright is owned by up to three people or organisations:

• First, there’s a copyright in the Musical Work itself, which is owned by the composer. It’s often assigned to a music publisher who collects the fees on the composer’s behalf; and it lasts for 70 years after the death of the composer.
• Next is the copyright in the Sound Recording, normally held by the record company for 50 years from the date the recording was first issued.
• Finally there’s a copyright in the Performance, initially owned by the musicians and singers. But normally these rights are assigned to, and dealt with, by the record company, so needn’t trouble us now.

British law gives the copyright holder the exclusive right to do certain things with the material:

• to copy it
• to issue copies to the public
• to perform it in public
• to broadcast it
• to adapt it
• finally to rent or lend it to the public.

Only two of these rights are exercised during the making of a TV programme: when the music is copied (for example when you transfer it from the CD to the magnetic storage on your editing system); and when the music is broadcast as part of a TV programme. To do this legally, you have to pay a fee to the copyright holders.

The money in both cases is collected by various copyright societies, which in turn distribute the money to the rights holders. With me so far?

• 1.So first, the copying right. This is collected by an organisation called MCPS – the Mechanical Copyright Protection Society. Most big TV companies have a blanket agreement, and pay a huge chunk of money each year. Individual producers are responsible for reporting what music they’ve used to the music department, who in turn report to MCPS. MCPS then pays out the money to the rights holders. (Note that if you were making a programme as a completely independent producer, you’d need to join MCPS, and pay on a track by track basis.)
• 2.Next the performing right. The broadcaster pays this – Channel 4, the BBC, whoever – and again, all the companies have blanket agreements. The money in this case is collected by the PRS (Performing Rights Society) and distributed to the rights holders in a similar way to MCPS.
• 3.Finally the right to use a particular commercial recording is granted by an organisation called the BPI (the British Phonographic Industry). And guess what – most big companies have a blanket agreement that covers use in a UK programme. However, if your programme is likely to be sold overseas, you must get advance clearance from the record company. Many tracks aren’t clearable for foreign sales, including, for example, anything by The Beatles.

Knowing what you can use

So, enough legal talk. How does this affect you and your programme?

• First, you can always clear live performances, of any piece of music, as long as you’re working under the MCPS blanket agreement. The only exception is where the performance is ‘abnormal’ – which means anything that the rights holder might object to. So your presenter humming ‘New York, New York’ in a yellow cab in Manhattan is fine, but having her sing different words to the same tune would be abnormal, and would need advance clearance. Another example of abnormal use would be using a piece of music over a disturbing scene in a drama – like a violent attack, or a suicide attempt. The rule is: any straight performance is OK; anything else should be checked in advance.
• The safest music to use is from library discs; they are always clearable. There are thousands of them, called things like ‘Comedy Themes’ and ‘News Punctuation’. There are some very good tracks, and some absolutely dire ones. So you’ll need to listen to a lot to find the one that’s just right for your piece.
• Equally safe, but rather more expensive, is to have the music specially composed, because the clearances required can be specified in the contract with the composer.
• Commercial records can be used (though not normally as title music). Most big UK record companies are signatories to the BPI agreement, so a UK artist on a big label should present no problems for a UK programme. If you want to use an artist on a small indie label, you’ll almost certainly need up-front clearance and to pay a fee. And as noted above, you always need special clearance to use a commercial record on a programme that is to be sold abroad.

Finally, it’s worth knowing that there are different rates for the various ways music is used in a programme.

• If the music is added afterwards – as when you cut a montage – then it’s called ‘incidental’ music.
• If the participants in the scene can hear the music then it’s called ‘featured’ music – for example a family in a drama with a radio playing in the background. (Note that this is a totally theoretical distinction, since virtually all TV music is in fact added afterwards, for technical reasons. If you record dialogue with music playing, you can’t edit the dialogue without the music jumping.)
• And finally there’s ‘actuality’ – which is when you record the musicians playing live.

That’s it, except to say this: if in doubt, check. Mistakes can be expensive!

Archive

There are plenty of specialist companies dealing in archive film and photographs, and as a rule they charge plenty of money for their services. Bear in mind there’s a copyright fee to pay every time a piece of archive gets shown, and costs vary depending on whether transmission is world-wide, national or regional. Always check costs before you order any archive, and get a quote in writing. And it’s always worth trying to negotiate a better price. Sometimes you need to use quite a bit of archive – if you’re making a historical piece, for instance – and one way to keep costs down is to get the material from source. Years ago, I wrote a story about skyscrapers in New York which went into great detail about the invention of elevators. I called the New York Historical Society to discuss getting photographs to illustrate the piece, but the cost was prohibitive – hundreds of dollars for prints and copyright use, which our budget just couldn’t cover. So I called the company founded by the man who invented elevators: the Otis Elevator Company in Connecticut, who have their very own archivist, and a whole store of wonderful photographs and film from the turn of the century. The film showed skyscrapers being built, early lifts being tested, and some brilliant shots of the New York skyline as it developed. And do you know the best thing – they gave us free use, because they liked the story!

Movies

Even a short clip of a feature film will cost you thousands of pounds, unless your transmission falls within the ‘free use window’. This is a period of a few weeks either side of the movie’s release, in cinemas or on video, when you get free use because the film is being promoted – so no problem for a movie magazine show reviewing the latest releases. If you need a clip for another reason – say you’re doing a story looking at the new digital technology used to produce film special effects – always check the length of the free use window; it varies from company to company. And always get a contract clearly stating the terms of your agreement. Review programmes are a great way of getting free material. We once made a computer games magazine show for £2,000 for a ten-minute programme (astonishingly cheap programming in 1996!). It consisted of one presenter, a couple of game-players, and an endless supply of free-use computer games material.

BROADCASTING CODES AND STANDARDS

All broadcasters in the UK have to follow guidelines laid down by Office of Communications (Ofcom), who publish them in a book called the ‘Programme Code’. The BBC is still partially regulated by its Board of Governors, and the rules are incorporated in its charter.

The Programme Code covers areas like: fairness, taste and decency; the portrayal of violence; privacy and the gathering of information; dealing with the police and the law; and responding to viewers.

One important bit to be aware of is the area of product placement and sponsorship. The guidelines state that there mustn’t be ‘undue prominence’ for commercial products. So it’s probably okay to get a free flight with British Airways, and, as part of the story, show one shot of a plane with the BA logo on its tail. In this instance, the plane features as part of the story, so the use is not ‘undue’ and if you only use one quick shot of a plane’s tail logo, it’s not too ‘prominent’ either. But it’s probably not okay to do an entire item about hi-fi products that features the Sony logo in every close up. There are lots of hi-fi manufacturers, so just featuring Sony products is certainly undue and definitely more prominent than necessary.

Product placement has a specific meaning – it’s where a company pays money to have its product featured. Common in movies, and on American TV; completely outlawed in the UK.

It’s worth getting hold of various codes, and reading them thoroughly (Ofcom’s website has details of how to order a copy of the Programme Code). The truth is that lots of TV people have only a vague idea about the rules – you could make yourself indispensable (and very popular) by becoming an expert!