Monday, July 25, 2011

Can I Expose Exxon in My Documentary?

Dear Rich: I am making an independent film about life on our ranch with ExxonMobil. I had a blog for a few years and youtube page. For three years, I filmed lots of Exxon activities on the land that is owned by my husband. About a six months into my blog writing, ExxonMobil sued me for tortious interference saying "my shenanigans raised their operating costs" because they had increased inspections from regulators. So, I am aware of how they can be big bullies with their lawyers. However, when I was not intimidated, they just backed off and I kept filming and writing. I never got any releases from Exxon workers or subcontractors but I have the permission of the land owner (my family). Of course, everything has Exxon stickers, etc. I even interview the people working there. Exxon's partners (El Paso Corp) sued me for tortious interference and exposing trade secrets on my blog. But, we made an agreed judgement where those claims were dismissed with prejudice. I am planning to make my movie free and put it on iTunes and the Internet. I have this idea that free speech is more protected than commercial speech. But, I don't know if that is true and where I got this idea. I also think that people are less likely to sue me if they think there is no money in sales to fight over. What do you think? We admire anyone who has something to say and doesn't let other people stop them from saying it. But we're also protective of anyone who calls themselves a Dear Rich reader, so we'll provide the legal rules with a caveat that you're already probably aware of --  free speech will protect your rights, but proving you have those rights may prove to be a burden. There is some recent good news for you. Last month, Texas passed its version of an anti-SLAPP law (as explained here). Anti-Slapp laws even the playing field by stopping lawsuits that are used to censor speech. That law could prove helpful if the claims brought against you are trivial or have no legal basis. Anyway, here are the legal rules.
  • Copyright - Because you did all the filming, we don't see much of an issue with copyright. If you are quoting from Exxon's written materials, using their photos, or video, that's an infringement but we think you have a strong fair use claim. However, as we always note, fair use can only ultimately be excused by a court which means you're spending money on lawyers.
  • Trademarks - We don't see much in the way of trademark issues. The reproduction of trademarks in an informational film about Exxon is permitted under first amendment principles and we discussed those issues here. These rules regarding informational uses would protect you against claims for trademark infringement and trademark dilution. Our only suggestion would be to avoid modifying the logos.
  • Privacy/Publicity Rights - Because your film is a documentary (and it's not a commercial endeavor), you may be able get away without releases as you are skirting right of publicity issues. However, without a release, the people portrayed in your film can possibly argue the film violates their right to privacy, or alternatively, it defames them. These aren't likely claims if you make a fair factual film, but as you know, employees who are concerned about retaining employment may regret their statements or wish to recant them. In your defense, you may be able to claim that their permission is implied by the fact that they talked to you and were aware of who you were, and that the material was being filmed. (In the future, you should consider getting a video release. While the camera is rolling, explain what you're doing and what the video will be used for and ask for authorization to use the material in your film. We explain more of these releases in our Getting Permission book.)
  • Trade Secrets - You're familiar with this one. When you disclose confidential business information that you acquired by an unlawful means, a company can claim that you stole their trade secrets. So, if someone has stolen trade secrets from Exxon and they give them to you and you publish them, you could be enjoined (stopped) from distributing them. As you know, this is a gray area encouraging litigation because only a court can ultimately sort out what qualifies as a trade secret
  • Contract Claims - You're already familiar with tortious interference -- when you're accused of coming between two parties to a contract to undermine their dealings with each other -- another gray area of law in which a he said/she said battle can drag on in the courts. Your settlement agreements may also establish some contractual limitations on your future behavior (although it doesn't sound like it from your description).
  • Defamation/Trade Libel -- If you include untrue statements that cause harm to Exxon's business reputation (or to any of their executives or employees), you may expose yourself to defamation claims.
  • Likelihood of Being Sued When There are No Profits -- You asked if you were a likely target if you had no profits. Profits probably only matter when discussing copyright, trademark and contract claims. And Exxon may not care about your profits, anyway. They may be more concerned about stopping the film (getting an injunction). You could be personally liable for defamation, right of publicity or other tort claims. Some people who make documentary films attempt to shield their personal assets by creating an LLC or corporation to produce, own, and distribute the film.