CLEARANCE TOOLKIT > FRAMEWORKS

Why Do Clearances Change So Much Between Productions?

It’s no secret that clearances can be frustrating and changeable. We humans are great at pattern recognition so it makes sense that we would try to identify patterns in clearances - hopefully building on what we’ve learned on one job and smoothing the bumps on the next job.

Unhelpfully though, that doesn’t always work out. This guide looks at the main areas that change across productions and digs a little into why. The aim is to help you understand what is causing the differences so you can find a workable approach to clearances on each new production.

Distributor > Production Company > Team

Whether it’s spelled out in guidelines, discussed in kick off meetings or just held in someone's gut, there is always a risk profile for every production. You’ll have one yourself even if you've not explicitly thought about it.

Part of the complexity with risk profiles is that each production will have multiple layers of risk overlaid on each other, which creates the risk profile for that production. Add into the mix some common misunderstandings between Commercial Risk and Legal Risk and you have a lot to unpick.

The three key layers usually come form -

The Distributor/Platform buying the show (i.e., Netflix/Apple/BBC/HBO etc)
The Production Company making the show ( i.e., A24, Bad Wolf, LeftBank)
The Production Team executing it (Producer, Production Designer, Clearance person)

Layers of Risk - the main actors

Distributor

The company funding and ultimately distributing the production have clearance guidelines – these are designed to manage the risk of complaints once the show airs and to satisfy their insurance providers.

As there are so many permutations and variables the guidelines are usually quite top level and open to interpretation. Each Distributor has particular quirks and differences - some are significant. Netflix is very “risk tolerant.” Those who’ve worked on Netflix production know they are happy to allow risky items on set as they are committed to enabling the creative vision for those teams. It does not mean that risk of complaint has disappeared - it just means Netflix is comfortable handling complaints when they arrive - they have budget and resources for that. Lots of other organisations don’t have those resources - for them it's more effective (and cheaper) to prevent complaints before they arrive by having a much stricter risk profile and stricter clearance.

Production Company

Next in the stack is the production company - specifically the Business Affairs Lawyers. They interpret the distributor's guidelines and decide what can and can’t go onto set. Depending on their culture and levels of experience they may interpret the guidelines as more strict or less strict.

In my experience, people's interpretations will also shift slightly if they've just had a clearance issue blow up as opposed to coming off a long stretch of smooth sailing.

Team on the ground

This is the designers, set decs and location managers - this is probably you. Depending on the productions you've worked on you’ll make decisions based on how you can get permissions arranged, which resources and libraries you have had approved in the past and approach your creative challenges. Have you had something taken off set last minute? Have you been contacted about a complaint or a claim. Or have you worked on string of low risk production. All of these will affect how you approach clearances on the next production.

Who holds the risk?

Another factor to bear in mind is the licensing model. It tells you where the risk flows and who takes responsibility when a complaint is made.

“Original”

e.g., Made directly for a distributor Netflix Original or Apple Original. Risk sits with Distributor. These are shows or films developed, commissioned, or directly produced by in-house content division,.

“Partner Managed or Co Productions"

e.g., Made by a production company for a Distributor. Risk sits with the production company - sometimes the distributor may indemnify the production company.

These are co-productions where Apple or Netflix commission a series, but another studio or production partner takes the lead on managing day-to-day production. They sometimes have input and sometimes exclusivity in distribution.

Licensed

e.g., Made by a production company and then licensed to Distributors for a fixed period. Risk sits with the production company and as they may want to license to various different services these tend to be more cautious in their approach to clearances

High/Low risk context

The type of story makes a huge difference to everyone’s risk tolerance too. Is the show a “close to the knuckle” dramatisation of real world events? Or is it a TV adaptation of a much loved fantasy world novel? Are you set in a real suburb in contemporary London or in a small welsh fishing village 200 years ago? Is there violence, over consumption of alcohol, drugs or crime?

Budget & Profile

Is the production going to attract a lot of attention? Maybe it’s a returning season of much loved and highly anticipated drama. In that case the viewing numbers will rise along with the number of complaints. Often the lawyers become more cautious as the show's profile grows. On the other hand you will have established key sets and characters - knowing that items have been broadcast and viewed without complaints for letters is reassuring.

If it’s an A List cast with high profile in key roles then clearances can get even more complex as their relationships with brands outside of your production starts to come into play.

Authentic vs fictional worlds

Worlds based on real life, with real people in them, generally come with a higher risk of complaint. If you are creating a world or telling a story that is entirely fictional - e.g., a fantasy world, a period drama, or a historical drama where the characters are not real people – the risk of complaints about factual inaccuracies, misrepresentation, or defamation is much lower. The same goes for products within that world; for example, a fictional brand of soft drink within a completely fictional world has almost no chance of complaint whereas a real brand of soft drink in a contemporary setting comes with all sorts of considerations - and Ofcom guidance.

Summary

Distributor or Platform set the top-level guidelines based on how much risk they’re comfortable with.
Production Company – Their Business Affairs team interprets those guidelines, influenced by the company’s culture and past experiences.
Production Team – On set, decisions are made based on what’s worked before and what’s practical at the time.

Who takes on the legal risk depends on the deal. For Originals, it’s usually the distributor. For Partner-Managed, Co-Productions or Indies the production company carries the risk.
Other things that can affect the risk profile include, Context, Budget & Profile, Authenticity –
Each project is different, so it helps to go in with a flexible mindset and understand which of these cues apply to your new production —