Attorney Donald E. Bertrand
Originally published in Volume 18, Number 3 of the Entertainment, Arts an d Sports
Law Journal, (Fall/Winter, 2007), a publication of the Entertainment, Arts and Sports
Law Section of the New York State Bar Association.”

New York City Proposes Revised Film Permit Rules
In reaction to a groundswell of adverse filmmaker
New York City, the Mayor’s Office of Film, Theatre and
and on October 29th announced a set of proposed rules.
The hearing on such new rules was scheduled for December.
While the writer is pleased that the initial proposal
constraints, concern remains that the rulemaking process
itself can be improved to better assure minimally obstructive
constraint on filmmaking as a valued “free speech”
activity.

The following excerpt from the writer’s earlier comments
to the MOFTB seeks a rule development process
on filmmaking activity consistent with government’s
recognized role of assuring public order and safety. The
writer suggests consideration of procedural devices employed
in an analogous area of law where “minimal impact”
namely in the area of Environmental Impact regulation,
and also suggests lessons to be learned from recent cases
in our own profession—attorney advertising.
Mayor’s Office of Film, Theatre and Broadcasting

“Filming should be viewed as a protected public right
see the people’s ‘public property.’” Any adopted rules
should (1) fairly be aimed at timeliness, (2) have the least
intrusive adverse impact on freedom of speech consistent
with the aim of public safety, and (3) bear practical and
reasonable limit to the strain on City resources. The proposed
permit rules, in my view, have an unduly intrusive
and chilling effect on filming capabilities not minimally
required to protect the public’s welfare and safety. The
mere conjecture of possible harms is not sufficient to
impose a system of prior restraint or pre-publication
censorship. I therefore recommend a more detailed,
documented and public rule-making process. The process
should require the review, consideration and publication
of comparative law alternatives that would be less harmful
value. Such system should be mindful of the required
narrow tailoring of laws designed to limit, curtail, control
or otherwise regulate speech conduct, and should be at
least as thorough and diligent as the process required for
protection of another valued national interest, namely
protection of our environment. Through Environmental
Impact Statements required under federal law, detailed
documentation is required of all considerations involved.
Here, in adopting a film permit process, we are talking
of assuring the least intrusive impact on an even more
cherished and fundamental value, namely “freedom of
speech.”

As counsel providing entertainment and business
development law support services to filmmakers and
others in New York, I write this letter requesting that the
proposed rules be subject to withdrawal pending further
documented study. In my work I also serve as the Legal
Coordinator for a major filmmaking group in New York,
known as the New York Film Synergy group, consisting
of over 200 members. However, in writing this letter no
consensus as to its contents has been secured from the
group, and I am thus solely responsible for its contents.
My particular request is that, in the interest of “good
government,” the proposed written regulation be withdrawn
and subject to detailed, comparative law study,
fact-finding, documentation, hearings and report consistent
with law processes found in other regulatory areas
having significant effect on cherished national interests
or values, including American rights of liberty, assembly,
communication and speech. As you are aware, laws impacting
First Amendment rights of free speech are constitutionally
required to be narrowly drawn. Likewise, in
efforts to protect our environment, Environmental Impact
Statements are required to assure rigorous fact-finding
and report, with full airing and documentation of less
intrusive alternatives to the proposed action. See generally,
U.S. Environmental Protection Agency discussion
found at the following Web site address: http://www.
epa.gov/compliance/nepa/index.html.

It is also instructive to consider a most timely, recent
New York U.S. district court case on the “freedom of
speech” issue. It concerns attorney advertising. The case
outlines the constitutionally required standards of certainty
of narrowly tailored rules in applying controls and
constraints impacting attorneys’ First Amendment free
speech rights in advertising their legal services./footnote 1.
The case declared certain portions of the new advertising rules
unconstitutional for many of the same reasons that may
confront the current MOFTB proposed rules, in failing to
provide minimally intrusive control and prior restraint in
this most cherished and valued area of speech liberty. To
assure a favorable result for the new film rules I therefore
recommend public consideration, discussion and report
on less intrusive alternatives having a less chilling effect
on filmmaker freedoms to fi lm, and thus having lesser
constraint on the public’s right to see, hear, speak and
know.

Such deliberate approach would further help serve
the filmmaking community and the public more generally
by airing the availability and consideration of
alternative regulations. While New York with California
may be the hub of the entertainment industry, value can
be gained by the careful evaluation and public consideration
of the particular laws adopted in other locales in
an effort to find less intrusive filmmaking controls. Such
findings would be followed by documentation of the
reasons such regulatory schemes are or are not suitable
for implementation in New York. This process should
be welcomed by your office as an opportunity to build
support and general consensus as to the considerations
involved and necessity for the particular rules ultimately
adopted. Filmmakers would also thereby be actively
engaged in educating and informing themselves during
such review process, making the rule necessity better
understood and thus more easily enforced.

I am aware of other filming locales in U.S. cities that
have fundamentally different variations on such significant
filmmaking rule items as:
1. existence or absence of insurance requirements;
2. definition of regulated filmmaking; some limiting
to “commercial” films only;
3. time period for approvals to be granted;
4. exemptions for “documentaries” and other special
matter; and
5. specific filming conduct guidelines when permits
are granted, as well as degree of specificity.

Any detailed comparative law study should also
analyze the insurance claims history of filmmaking damages
and harms to people and property that occasions the
need for a one million dollar insurance requirement from
even the most casual filmmaker. As you are aware, insurance
is a mere pooling of risk and insurance fees to cover
actual ultimate damage costs. The question is thus fairly
raised as to whether smaller independent filmmakers
should be asked to contribute, and in what proportion, to
insurance fees to cover insurance losses from larger scale
productions where no special set-up or shoot scenarios
are involved. A detailed study and publication of actual
risk and loss results may produce a more discernable,
accepted and understandable manner of insurance cost
allocation, apportionment or exemption, based on real
facts, documentation, experience and report.

In general, I believe that the fundamental reason for
a “permit” process requiring pre-shoot, case-by-case review,
as opposed to detailed standard written guidelines,
is that any particular film project may require special
considerations that the MOFTB cannot pre-determine by
explicit rule. The MOFTB thus is presented an opportunity
during case review to apply such valued knowledge
and experience to anticipate and resolve any such special
issues. However, most films will not fall in this “special
needs” category. It thus might be prudent and possible to
replace the permit process with strict shooting rules, coupled
with mere Notice requirement, for such categories of
filmmaking as fall within such “safe harbor” guidelines as
do not involve “special” considerations requiring specialized
permits. Such “safe harbor” filming could, instead,
be governed by a system of mere pre-Notice without
necessity of prior case review.

The filmmaker is ultimately the “eyes of the community”
and the eyes for those of us who cannot go out
and discover things in person. Our history as a Nation is
replete with examples of the importance of a free press,
circumscribed by only the most limited rules required
to assure the public’s safety and fundamental fairness.
Mere convenience and the absence of irritation is alone
not enough to otherwise circumscribe and control this
fundamental freedom.

I end this comment with a concluding request that
New York’s legislative council not, by mere delegation to
MOFTB, abrogate its responsibility for knowledge and
regulatory oversight in this area so fundamental to speech
liberty. While it may be true that a specialized office like
MOFTB is likely to have special expertise and knowledge
in this area, our legislators too must be clear that they
have a fundamental and important responsibility in this
area of speech regulation and “permitted” speech activity.

Endnote
1. Alexander v. Cahill, No. 5:07-CV-117 (N.D.N.Y July 23, 2007).
After having spent many years as corporate counsel
in the financial services sector, Donald E. Bertrand has
transitioned to an intellectual property, business development
and entertainment law practice with an office
located in West Haven, Connecticut. Licensed in New
York, Massachusetts and Connecticut, his law office
serves the many diverse developmental and representational
needs of producers, writers, directors, filmmakers,
musicians, studios and creative talent in the entertainment
sector. Among the author’s industry associations
are membership in the Entertainment, Arts and Sports
Law Section of the New York State Bar Association, Legal
Coordinator of the NYC Film Synergy Group, New
England Coordinator for the Institute for International
Film Financing, member of the Arts Council of Greater
New Haven and member of the “Grammy Awards” Recording
Academy, Moderator of SongsInLitigation.com
Web site blog. He also owns his own documentary fi lm
production company established in Connecticut, Cat’s
Eye View Productions, LLC. The author may be reached
at (203) 430-3141, donbertrand@comcast.net, or via www.
ctLawHaven.com.