Sony Pictures: Zero Dark Thirty

I’m proud to have been quoted in the International Business Times regarding Academy Award winning film, “Zero Dark Thirty,” which used a telephone message from a victim of 9/11, seemingly without the consent of the victim’s grieving family.

Interesting article.
http://www.ibtimes.com/did-zero-dark-thirty-use-final-phone-call-911-victim-without-permission-1106130

And here’s my contribution to:

Whether or not Mary Fetchet [the victim's grieving Mother] could bring a successful legal case against the filmmakers is hard to say, but legal options in situations such as this are tricky.

Lemoine added that he sympathizes with Fetchet, and acknowledged that a legal analysis of her rights seems cold in light of her obvious — and understandable — emotional distress.

Fashion Care Laundromat, Albany, N.Y. - sprocket hole and layered film (Photo credit: chuckthewriter)

I often receive calls from creatives with business and legal questions about their project. Many thinly funded project leaders balk when they find out that an attorney (including yours truly) charges from $375 per hour and up  – to negotiate deals or assist with disputes, draft entertainment or business contracts or settlements, do copyright or life rights clearance work, assist in obtaining life rights and rights of publicity, file Trademark applications, work on some other intellectual property issue or problem or handle the myriad other needs that are necessary to: develop and produce a film, TV project, pilot, or reality program; develop a smartphone app or game; protect music and publishing rights; protect, option or sell a script; sell photographs, etc., etc., etc.

While I sympathize with the thinly funded creative project, the fact is the creative can’t afford NOT to hire an attorney to do what is needed. A few examples:

- a group of friends decide to write a script and develop a film, and shoot a sizzle reel to help raise money to produce the project. Problems presented? Without a legal structure such as an LLC or corporation, they may all be subject to personal liability if anyone sues… for anything; without proper contracts, the rights to the script, dialog, characters, plot, art direction, costumes, special effects, footage, sound recordings, talent’s performances are not vested in – that is, “owned” by – any single person or entity — meaning the rights to the various content are so split and fractured the project likely can NEVER be used by anyone for a commercial purpose. Or perhaps ANY purpose, commercial or not.

- a writer bases a script on a real person for whom the writer does not have the “life rights.” Problem? After toiling away for months or years on the script, the writer can’t do ANYTHING with the script until that little “life rights” issue is taken care of.

- adaptation of a preexisting work – a book, comic, film, or riff on someone else’s intellectual property. Same problem – without getting the rights to adapt the prior work, he who is doing the adapting can’t do ANYTHING with the work product until working out that little “adaptation rights” issue.

There are thousands of variations to these and similar scenarios.

In the attempt to save perhaps as little as a few hundred dollars on legal advice or properly drafted contracts, the creative has wasted months or years of their own time, and potentially the time and effort of all those working on the project as well.

And pulling random contracts off the internet is equally effective. The non-entertainment attorney has little concept of what they are NOT getting via the “free” internet contract. Omissions from the “free” contract may be TERMINAL to a project – but that may not be realized until far down the line, after hours and weeks and months – or years, of blood, sweat and tears.

Don’t skimp on legal advice and properly drafted agreements.

Get the needed advice and legal work at the outset of the project.

I will happily accept credit card payment for the help you need. Many other entertainment attorneys will as well.

So what do entertainment attorneys cost? A small price, considering their involvement may mean the difference between being able to utilize and prosper from your project, versus having wasted a wealth of time, effort, and creativity.

***

If I may be of assistance in the development of your entertainment, media, video game or app project, or in the development and growth of your business, please call or email at your convenience.

Gano Lemoine

Related articles

• What do movie producers do? (gointothestory.blcklst.com)

Sign up for Pilar Alessandr’aScreenplay Adaptation Workshop on December 12th, and get a special bonus… ME!

December 12th, 7PM to 10:30PM, in Sherman Oaks, CA.

Screenwriting teacher Pilar Alessandra will instruct on the screen adaptation of a play, comic or book, helping you find the right story, structure and style for your project — ultimately guiding you toward developing it for the big screen.

I will be on hand to deliver a primer on life rights, rights of publicity, and copyright licenses needed to make the adaptation yours.

See the link below for more info.

Pilar’s “On The Page” Website – to sign up for the class.

My legal practice is a mix of business clients and entertainment clients, so I come across many people that are growing their endeavor from an early stage. That early stage is frequently a natural progression from a unique combination of passion, interest and skill toward (hopefully) a profession – a going concern – whether that is a business of some sort, or a successful film, writing or music career, or the like.

That transition into a “going concern” is incredibly difficult for many reasons, not the least of which is the difficulty many entrepreneurs find in demanding value for their skill, service or idea. Too often entrepreneurs treat their “it”, whatever it may be, not as a business, but as the uncompensated passion from which the “it” evolved.

In doing so, they hold themselves back – they stifle their own growth into a going concern.

Here are a few common pitfalls to avoid.

After reading these suggestions you can push back from these difficulties with a simple phrase – “I wish I could do that, but my lawyer says I can’t.” (Feel free to substitute “business manager”, “accountant” or “soothsayer” if it helps get the message across).  Somehow blaming the bad news on a trusted advisor makes the refusal more palatable to them that’s hearing it.

1. Do not give “it” away – whatever “it” is.        Whether you are producing a widget, selling a thing-a-ma-jig, or building a client base,  it always seems that the intended customer wants it, initially, for free. Beware – and resist this as much as possible.  Admittedly this may be the most difficult of these pitfalls to avoid. Every entrepreneur has to “give away” some of their time, advice, know how, product, samples, skills, etc., to prove to the world that they have something of value that should be paid for. Granted.

But as the old country wisdom goes, “why buy the cow if the milk’s for free?”

Resist the give-away. If what you are offering has value, require that its value be recognized. If a “free sample” has to be given, fine. Just keep it to a minimum, and be clear in your communication that very quickly the value must be recognized – and paid.

Anyone that expects otherwise is unreasonable – and should be passed by quickly and without regret.

2. Confirm that value in a clear writing – always.     Early entrepreneurs often find it difficult insisting that an agreement be put in writing. They often feel that insisting on a writing shows distrust of the opposite party, and therefore may sour the new relationship.

That is looking at a written agreement from the wrong end.  First and foremost, forming a written agreement is a process that makes the parties focus on the details of their intended arrangement – clarifies the deal and the details of the deal – so as to avoid misunderstandings later.  Simply going through the process of discussing and committing to writing what each party intends will help avoid future misunderstandings and mistakes.

Focus on the who, what, when, where, why (sometimes), and how of the transaction.  How will the performance unfold – multiple stages, milestones and approvals leading to the next stage? How will payment unfold – 1, 2, 3 or more installments as performance goes forward?

If you’re finding it difficult to put your understanding in writing, it may be that the transaction is unclear. But it must be. Otherwise the situation is an invitation to problems, disagreement and miscommunication – i.e. disappointment and mistrust by one or all.

3. Beware “friend” pricing .     Much of an entrepreneur’s early success may come from friends, family or acquaintances  - and that’s great and necessary.  But with that comes the danger of giving a price or terms that are, frankly, unfair and unsustainable.

For example, quoting a price for a service that – without the friend even having requested a discount – is steeply discounted from the standard price. The person giving the quote just negotiated against himself because of the “guilt” of giving the friend a “standard” (and presumably fair) price – for example, quoting a $25,000 job for say, $18,000 – a $7,000 discount off the top – as a sort of favor. Albeit one that wasn’t even requested.

Try to think of that “friend discount” this way. What is the value of what you have to offer? And therefore, what is the discount off of the “standard” rate? (here $7,000).

Independent of this transaction, if you were to go to that friend and say, “Friend, would you do me the favor ofgiving me $7,000? Please? As a gift?” What would the answer most likely be?

But in underpricing the actual value of what you have to offer, you have volunteered to do exactly that.

I’m not suggesting you do not provide “friend” pricing – just be well aware of what you are doing when you do it. Make the decision consciously, and without the cloud of guilt merely because the potential new customer is a friend.

When they come to you as a customer or client, their role has shifted, and your judgment must shift to treating yourself and your business fairly.

4.  Where is the business plan?     Many new business owners dismiss the need for a business plan until someone demands one – a bank or potential investor.

That is certainly understandable. Business plans are tedious and time consuming to put together. No fun. And many people do not have a clear understanding of what a business plan is.

But more dauntingly, business plans require the fledgling business to focus on many scary and nebulous concepts: is there a demand for what I’m offering, is it enough of a demand on which to base a business (in other words, “what is my market”), what are my costs, my expenses, overhead, and therefore profits, and over a one, two, three or longer timeline (in other words, “projected profits/losses”), who are my competitors and can they respond to my presence, how much capital do I need, and how long before I am profitable, and therefore, can I last that long, etc.

But much like the process of forming a written agreement, one of the most beneficial functions of a business plan is in forcing the business to focus on all of the relevant factors. On what must be done, and known, to continue in business – and hopefully move to profitability.

These pitfalls are applicable to businesses and entertainment professionals alike.

The simple fact is that one must treat “it” like a business to become a professional.

I’m looking forward to being a panelist at the Scriptwriters Network Entertainment Attorney Panel – about the law and business of screenwriting – August 13, 2011, 1PM.

Come on out and join us on the Universal Studios Backlot.

http://www.scriptwritersnetwork.org/event20110813.html

Universal Studios Backlot
Rehearsal Hall 3269
Universal City, CA 91608
Any questions, email the Scriptwriters Network at universal@scriptwritersnetwork.org.

Saturday I attended the 2010 USC Institute on Entertainment Law & Business – terrific speakers on the state and future of the industry. The quality of the topics was exceeded only by the high caliber and knowledge of the speakers.

Highlights included…

• The section on the Asian film market. While it’s accurate to say that China and India are a “developing” film market for the American and European film industries, it is also a gross understatement. These countries are already a huge market opportunity for the right films. They will grow exponentially in a very short time. And they are beginning to be enter the arena for American film investment.

• The luncheon keynote by Sony’s Chairman & CEO, Michael Lynton, whose wide ranging conversation reflected on the past, and informed about the future of film, television, new media, 3D in theaters and homes, and how the new generation of entertainment consumers will interact with media in ways we can’t yet imagine.

• The segment on digital distribution and the evolution from the DVD model, to Netflix/Redbox, to Video-on-Demand, purchase vs. rental/timed access, and all the many permutations beyond – multiple devices, revenue models, and where it’s all headed.

• The session on Negotiating TV Deals with Media Giants – authoritative advice and opinion from those representing talent, and counterpoint from representatives of two media giants, Twentieth Century Fox Television and CBS Television.

A terrific day of deepening knowledge and meeting others in the industry.

I even met an attorney from Louisiana who is the cousin of a college roommate! Weird.

My interview with screenwriting teacher and consultant Pilar Alessandra is now up and available!

Our wide ranging conversation was focused on Legal and Business Do’s and Don’ts for screenwriters, and covered many hypotheticals and real world, practical obstacles faced by screenwriters, filmmakers and other creative professionals.

Pilar’s “On The Page” Podcast is a constant source of great information about the craft and business of screenwriting.

From substantive writing lessons, to the information shared by her writer, producer and director guests (and the occasional entertainment attorney), the podcast is a must for those trying to elevate their talent and knowledge. I’ve been a longtime listener, and have found the information invaluable.

www.onthepage.tv

My podcast episode is Episode 162, available through iTunes. Full access to this, and all other OnThePage episodes requires a subscription – well worth the meagre cost considering the wealth of screenwriting instruction the Podcast delivers.

Thanks again Pilar! I throughly enjoyed it.

This week I had the honor of being interviewed on Pilar Alessandra’s excellent Podcast “On The Page,” a fantastic source of information about the craft and business of screenwriting.

www.onthepage.tv

The topic for the interview was “Legal and Business Do’s and Don’ts for Screenwriters,” although we had a wide ranging discussion covering life rights, the newly released movie “The Social Network,” WGA versus U.S. Copyright office script registration, story and idea theft, and plenty of other information useful to writers and filmmakers alike.

The interview will air on October 15th, via the On The Page website and through iTunes.

Thanks Pilar! it was a pleasure.

Whether you are a producer, director, screenwriter, novelist, or photographer, it is imperative you stay focused on copyright, privacy and publicity clearance issues.

Having an unlicensed piece of footage in your film may mean the difference between a sale or distribution deal, or not. Making a person the subject of your story without having the appropriate signed releases or agreements may mean you are working on a story that someone else can stop you from selling or publishing.

Here is a partial list of issues to be mindful of as your production moves forward:

Writers
Does your story involve real people or real life events? Have you obtained their life rights or story rights through a well drafted, signed agreement, in writing? Is the person “recognizable” in your story? Is the person a “public person” or a “private person?” If a public person, has the subject signed a well drafted agreement pertaining to their right to publicity? Does any of the information or points in the work invoke issues of defamation, libel, slander or product defamation?

Have you written into your story any intellectual property of another – words, characters, songs, song lyrics, images, quotes, etc.? Are any of these elements in the “public domain?”

Note that the “public domain” does NOT mean “publicly available” or “out there on the internet.”

And “fair use” does not mean that simply because something can be easily grabbed off the internet that it becomes “fair use” material in a new creative work. Possibly, but very possibly NOT. Nor does “fair use” allow use of the works of another simply because your project is low budget, or not intended for commercial distribution.

Producers and Directors, Photographers and Graphic Artists
Are you certain your writer had clearance for everything that made it into their script or story? If not, the mistake becomes your problem as you take the writing into the next medium.

Is your director, cinematographer or anyone else involved in capturing the images of the shoot under contract – a well drafted contract? Have all of the on-mic and on-camera talent signed well drafted releases or contracts? Does your audio or video contain any work that may be the copyright protected material of another? Do you have a release or license for such materials? Are any of those elements in the “public domain?” Do any elements of the work relate to real people or real life events? If so, see the relevant questions for the writers above.

Does your work contain any images or clips from radio, tv, studios, networks, the internet, songs, performances, photographs, paintings, etc.? Do you have releases or licenses for such works? Are any of these in the “public domain?”

Few of these questions offer bright line answers, and most involve a tricky and complicated analysis of the law and the facts particular to each situation and instance.

Overlooking or ignoring these issues could mean finishing the project only to find that it cannot be optioned, sold, released or distributed because an inherent clearance problem is imbedded into the work. Worst still could be the potential for a lawsuit because of something contained in the work – irrespective of whether it has been optioned, sold, released or distributed.

All of these issues are best dealt with early on, and by involving an attorney knowledgable in these areas.

The project and fortune you save may be your own!

**
As an entertainment attorney, my focus is protecting and advancing your project. Please contact me at your convenience if I may be of assistance.

Image via Wikipedia

Before you start – or have someone else start – filming, or writing, or composing, or doing whatever creative thing that’s being contemplated – get the necessary contracts drafted and signed!

At first blush, this advice may seem elementary and far too simple. But in fact it happens so often that producers, directors, writers, musicians and others in creative businesses execute the creative work before nailing down the business details.

Nailing down those business details, and recording them in a signed writing, is a very important action – particularly in businesses that deal in the creative.

Why? Because legal rights to intellectual property (such as visual images, writings, music, etc.) are usually created at the time of the creation, and therefore often vest in (become owned by) the creator at that moment, unless a contract or agreement makes clear that the creation belongs to or is for the benefit of another.

So while it may be the intention of a producer to own the script and story a writer is busily writing, without the proper contract in place the producer may not own anything when the script is finished. It may in fact be the writer’s characters and story and script, with the writer free to do with it as she wishes.

And while it may be the intention of a model to own the rights to the images shot by the photographer, without something in writing before the photographer shoots the images, it may very well be that the model doesn’t have the copyright to those images. She may have the right to object to the commercial use of her image, based on a right to privacy or publicity, but what she intended to have was the copyright – the full and complete ownership of the photos.

Similarly, a producer may intend to own the story and images from a film shoot, but without the proper “work for hire” contracts, it may be that the producer owns none of the above at the end of the day.

The same may result from music composed without the proper “work for hire” contracts, and myriad other situations involving creative works.

And it happens ALL THE TIME. And results in problems after the fact ALL THE TIME.

Save yourself hours of problem solving and worlds of heartache – put an entertainment attorney to good use. Spend a little time and a modest amount of your project funds on the legal protection of your project, keeping the rights and ownership as you intend.

That modest sum spent on solid contracts and agreements will mean keeping your project yours, and being able to market and exploit the project as intended – as opposed to perhaps losing control over what may have consumed scores of hours, and a fair amount of blood, sweat, tears and talent.

As an entertainment attorney, my focus is protecting and advancing your project. Please contact me at your convenience if I may be of assistance.