Most schools need to make the most of their assets, and hiring out school facilities to a film production company sounds tempting. However, it needs to be considered very carefully. Here we offer advice to schools considering this and there is more to it than you may think.
With increased financial pressures and long periods where school facilities and sites are unoccupied by staff and pupils, we are increasingly hearing from more of our school clients looking to dip their toe into the filming world and explore the earning potential of their physical assets. This is particularly the case over the summer months.
Usually we find that a school is approached by a production company – either directly or via a third party (often freelance / independent) location agent – looking for a specific site or location to use. It is often at (very) short notice, and this can mean that the school is in reactive mode and either permits the filming without a contract in place, or simply signs up to the location agent / production company’s standard terms provided. Please don’t!
Is this something which the school should be doing?
Stepping back from the obvious financial incentive of filming work, opening up the school site and facilities is not without its risks – eg financially (in terms of possible damage to property, personal injury, damage to reputation etc) and safeguarding (if pupils are on site at the time). Filming is an unusual type of "venue hire" which is often less controllable for the school in terms of access / use, and, therefore, it is important to give thought to the areas of the school to be used, how this / these site(s) will be accessed, and how this will interfere (or not) with the functioning of the school on that particular day / week. You may decide that these risks outweigh the fee being offered, or these may mean that the school is still keen to forge ahead, but only for the right fee (see further below).
First, let’s look at this on the production company’s side. It may sound obvious to impress the importance of the school being clear on who it is contracting with, and to make sure that the contractual documents reflect this accurately (ie the party to the location agreement is who you expect it to be). However, this is often overlooked.
Often you will be corresponding with a location agent or third party, but they will often not be the entity coming on site to operate the filming, or the entity "on the hook" if things go wrong. Sometimes (usually for big budget productions) special "one-off" production companies are set up for the specific project, which may have no assets or real financial standing in their own right.
As such, it is really important that the school fully understands who it is contracting with, and also that this is mirrored and reflected consistently in the insurance carried (see further below regarding insurance).
If you have any concerns, don’t be afraid to ask questions, and a letter of guarantee from a parent company can be something helpful to ask for to give that additional assurance.
On the flip-side, do think carefully about the appropriate contracting party of the school. The majority of independent schools are charities and, in very broad terms, venue hire for the purposes of this sort of filming activity will be non-charitable trading and should be run through a trading subsidiary. As ever, things may not always be that simple and we recommend legal advice is taken as there can be unintended tax traps here.
The school must make sure that it fully understands what the filming will involve, and what the school is exposing itself to in exchange for the fees. As mentioned above, the key risks we are typically concerned about are financial (in terms of possible damage to property, personal injury, damage to reputation, etc) and safeguarding (if pupils are on site at the time).
Our approach is always put the production company under an obligation to provide full details of the film in advance – including (but not limited to):
- A full synopsis.
- Details of any potentially hazardous action or materials that may need to be used as part of the action.
- A copy of a risk assessment undertaken in relation to the filming.
Any special effects must always be authorised in advance. The access to the site should then only be permitted so long as the activity corresponds with what the school has been told and expects the filming to involve. Ideally the location agreement would give the school a right to interrupt / suspend filming if it is not in accordance with this information disclosed in advance, or if the school otherwise sees a threat of danger or damage to people or its premises.
Who, where and when?
The scale of the filming, the size of the cast and crew and the degree of "on location" facilities (food trucks, washrooms, toilets, makeup trailers, etc) will have a large effect on the impact on the site – in terms of wear and tear and traffic, and the areas of wear and tear and traffic, and the areas of the site which will be impacted.
"The fee should be determined by reference to the degree of "wear and tear" and risk that the school is undertaking – ie a cast of several hundred and associated facilities (toilets, canteen etc) coming on site, and risky stunts or effects taking place should command a much higher rate."
An important aspect of this is where the location unit and facilities will all be based, which areas will be used for the filming location, and how this will be accessed. Our approach is to set out these different rights of use and access clearly in the contract – often referring to a colour-coded plan or map so that there is no room for ambiguity and potential dispute later down the line.
This then helpfully sets up a structure for when such areas can be used and accessed, usually referred to as the "permitted hours" (beyond which there is often a basis to charge "overrun fees").
Ultimately, filming activity is all about managing risks. It is important to make sure that none of the planned filming falls foul of any of the restrictions and conditions contained within the school’s own insurance policy (or indeed through any other restrictions that may affect the site, eg if the buildings are listed, but that is not for this article). An early conversation with the school’s insurance broker is never a bad first step.
Any restrictions or conditions need to be clearly mirrored in the location agreement. In addition, the school’s broker should be able to give you good advice regarding the types and amount of cover which needs to be held by the production company before they come on site, and they should also be able to give you details of any restrictions which you need to impose – for example, in terms of electricity and power usage, naked flames, smoke effects, etc.
We would always recommend asking to see evidence of insurance being in place before the production company is allowed on site.
Third party rights and clearances
It is important that the school makes it clear that the clearance of any third party rights is the responsibility of the production company. For example, if filming is taking place inside the school buildings with artwork or sculptures in shot, which are still within copyright – the school needs to be clear that it is not giving / has not obtained the required permissions from the copyright owner. If a production company is not willing to take on the clearance responsibility, then it may take the decision to ask for the item to be moved (sometimes no mean feat!) or simply choose a different camera angle to remove the item from shot.
The same goes for artists' rights and making sure that there is no way in which the school can be held responsible for clearing the rights of those participating in the filming. This should be a clear production company responsibility. That said, production companies are typically well set up to ensure these clearances and discharge this responsibility, which may of course include those from the school’s own pupils and staff if they are to feature in the filming.
Within the school environment there are inevitable safeguarding considerations that must be addressed. There must be an overarching user agreement between the school and the party they are contracting with (which was explained above). In addition, the third party should present:
- Their safeguarding policy / statement.
- Child protection policies (which should be inspected as needed).
- Evidence of suitable safer recruitment checks on all adult leaders.
- Evidence of staff safeguarding training.
- Risk assessments.
- Any qualifications (if appropriate).
- Evidence of appropriate first aid qualifications.
- Appropriate insurance (although as above, this may be for liability rather than safeguarding).
From a practical perspective, a member of the school may like to have a general conversation with the third party’s leader to ensure they understand any potential safeguarding risks and how to mitigate them.
Be clear about what the school will not permit under any circumstances. For example, if fireworks can never be permitted (eg if this is a restriction under, for example, a head lease of the land) then this needs to be reflected and clearly stated as a restriction in the location agreement. Ultimately, you know the stresses and strains your site can take, and the location agreement is your opportunity to help manage the appropriate use of the site.
Damage and liability
Damage to school property is the most likely risk associated with filming and this can be costly to repair or replace. Notwithstanding the obligation to carry appropriate insurances, the production company should always be under an obligation to cover the costs of reinstating the premises to the state they were in immediately prior to the hire, and sometimes responsible for arranging those repairs (depending on the degree of control the school wishes to have). A condition report prepared immediately prior to the hire can often be useful to refer back to.
We have discussed risk in general terms above, and the liability associated with the filming should be pushed on to the production company as much as possible – with as little liability as possible assumed by the school under the location agreement. It can sometimes be helpful to limit the school’s liability to the amount of the fees paid by the production company.
In our experience, most schools tend to undersell the value of their site. Location agents spend days and weeks (and sometimes months) sourcing the ideal locations for the filming of their specific project. As such, it is likely that the school has been chosen or approached for a specific reason – perhaps the vaulted ceiling in the chapel, the cantilevered staircase in the main hallway, or huge sports pitches very closely accessible to a major motorway. Whatever it may be – find out what it is, as it will give the school a better idea of the value in the hire. The fee should also be determined by reference to the degree of "wear and tear" and risk that the school is undertaking – ie a cast of several hundred and associated facilities (toilets, canteen etc) coming on site, and risky stunts or effects taking place should command a much higher rate.
Location fees are typically charged on a daily rate (with a reduced rate for set up / de-rigging, and a higher rate for shoot days when filming is actually taking place), and only for access / use between specific hours (the "permitted hours" mentioned earlier). The fee to be paid is a total of these daily rates, which we would always recommend is paid in full in advance of the production company coming on site.
If the filming overruns and the production company wishes to have access to the site over and above the agreed hire period, then this should always be at the school’s discretion, and we would also recommend pushing for overrun fees.
Although the financial incentive can be attractive, there is risk and liability at stake for the school. In an ideal world the school would have its own standard location agreement on file which can be provided to the production company but, failing that, please do make sure that there is a contract of some description in place which you have reviewed and considered and (ideally) sought legal advice on.
If you find yourselves in this boat, we hope that this article (although by no means exhaustive!) gives you some food for thought and some helpful tips.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
Please note this content was originally published in the Summer 2022 edition of the Independent Schools’ Bursars Association (ISBA) termly magazine, “The Bursar’s Review”, and is reproduced with the kind permission of ISBA.
© Farrer & Co LLP, October 2022