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Filmmakers and writers often let the contract and business details be a second – or third or forth priority, which is unfortunate. Neglecting contracts and business formalities may prevent getting investors into a movie, or may cause a host of other problems that mean a film cannot get interest or distribution.

What follows is a brief list of  “what and why” film and writing business details that must be done, from the outset, to minimize obstacles to a film or project’s success.

- Form a Production Company through which the film must be made. Why? A host of reasons. First, that will be the legal entity into which development/investment money is deposited. Why not take money/investments personally? Because of the second primary reason – liability. Liability in film development and production can come from multiple angles – from the U.S. Securities and Exchange Commission for taking investments without the proper paperwork (a “prospectus” or “private placement memorandum” – VERY different from a “business plan”), from an accident to the cast or crew on set, or to a bystander not part of the cast or crew (think a lighting element falling onto a passerby), or to the production “losing” funds needed to pay cast and crew.

This “parade of horribles” isn’t fiction – it happens all the time. And if it happens without the legal protection of an LLC or similar legally separate production company, the legal liability will likely fall personally onto the producers and those heading up the project, and potentially onto the investors personally – meaning that personal assets will be responsible for whatever harm or legal claims.

The third reason is that the legal entity will be the “person” (a legal “person” under the law) that contracts with all those involved in the film – from the producer(s), directors, cast and crew, transportation, catering, etc. If anything goes sideways with these contracts, it is the legal person that is held accountable instead of the actual persons heading up and investing in the project.

- Contract with the writer(s) and/or legal acquisition of the script or story through a literary acquisition agreement (a/k/a an “option/purchase” agreement). Failure to do this means that the production does not have formal rights to the intellectual property it is making – meaning the writer/creator may have the ability to withdraw his material and prevent the production from doing anything commercial with footage already shot. So it is critical that this be accomplished before any production – or even development – takes place.

- Production contracts. Like it or not, a film – or a script written on spec – is a business. A writer makes a product (the script or story), or many people come together to make a product (the film), which hopefully will be sold in one form or another, resulting in a financial return that will make everyone involved happy. Perhaps that happiness will be manifest in the ability to eat higher quality raman noodles; or perhaps the ability to make another film – or obtain a return on investment – or result in children being fed and college funds being strengthened.

But a script or film is a business, and as such there are contracts that must be used in the making of the product. What contracts depend on the activity (writing versus filmmaking), budget and the type of production (feature versus documentary, for example). But the principal is the same – contracts that clearly state who owns what, who has rights to what, profit/interest divisions, etc.

Essentially the who, what, when, where, why (perhaps) and how much regarding the business transactions involved.  These may include: the script/story option purchase agreement, cast and crew agreements, talent/interviewee release agreements, name and likeness releases, licensing agreements for use of the intellectual property of others (music, photographs, products, film or video clips (no – YouTube does not mean it’s in the public domain)), location agreements, craft services contracts, transportation agreements, insurance (workers comp, liability, errors and omissions, defamation protection), sponsorship and product placement agreements, distribution (foreign and domestic) agreements, appropriate trademark registrations, and the list goes on and on and on.

Failure to use appropriate contracts and follow reasonable business procedures will put the whole project in danger.

Kafee: “Mortal danger?” Col. Jessep: “Is there another kind?”

Keep your project out of danger – focus on the appropriate contracts and business formalities from the outset. Thereby clearing the way for your project to get sold and/or distributed.

The higher quality raman is truly worth it.

***

If I may be of assistance in advancing your business or entertainment project, please contact me at your convenience.

Related articles

• Book Review: The ABA’s Legal Guide to Independent Filmmaking by Michael C. Donaldson and Lisa A. Callif (blogcritics.org)
• Film Promotion Tips: How to Promote My Short Film? (brighthub.com)

A recent question asked whether a project was a permissible “parody” of a preexisting work, or whether the project was too close to the original and was therefore an impermissible rip off – a/k/a copyright infringement.

The answer can be maddeningly complex, and frustratingly (or entertainingly) fact specific.

First the basics: An “idea” is not copyright protectable – an “idea” is too general.

What is copyright protectable is the specific execution of an idea.

A “comedy about a family” is not copyright protectable – it’s just an idea, and far too general. But the specific characters and setting and plot and other myriad details of a specific family, such as The Simpsons, are copyright protectable; because of the specific execution of the details of the idea. And therefore another specific, unique execution of the same idea is also separately, independently, copyright protectable, such as The Family Guy.

Each specific execution is protected from being copied without the authorization of the owner.

But beyond those general rules, the U.S. Copyright Act excuses certain circumstances that would otherwise be impermissible copying.

One of those certain circumstances is what is commonly known as “fair use.” More accurately, the “fair use defense,” because technically it is a legal defense to having been sued for copyright infringement.

Parody is one of those “fair uses.” But not a specifically listed use – or even a clearly referenced use. So much for the basics – now onto the specifics.

Or at least the basics… of the specifics.

Four factors are considered in analyzing whether a use was a “fair use.”
1. The purpose and character of the use of the original copyrighted work – commercial or non-commercial; whether a Section 107 favored purpose – criticism, comment, scholarship, research, news reporting or teaching; the degree of transformation from the purpose of the original to the purpose of the new work;
2. The nature of the copyrighted work – certain types of work are more deserving of protection than others;
3. The amount and substantiality of the portion used of the copyrighted work – in relation to the whole of the copied work; and
4. The effect on the potential market or value of the copyrighted work.

An interlude – Mr. Webster’s definition of “parody” – “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule; a feeble or ridiculous imitation.” Synonyms include: burlesque, caricature, put-on, rib, send-up, spoof, takeoff, travesty.

So by it’s very nature, a parody MUST closely resemble or reference the original enough for the audience to recall the original, but not so much as to actually BE infringement – thereby “fair use.”

But because parody takes so many forms, bright line, preemptive rules are next to impossible.

Nevertheless, to qualify as a parody the new work PROBABLY should, at the least, (referencing the fair use rules above)
1. aim for comment and/or criticism – not necessarily of the original work, but of something that is shown by the contrast between the original and the parody; and therefore is transformative from the purpose of the original to a new purpose (the original was serious, the new is silly). For example…

A federal court found that one of these photos was a permissible fair use parody of the other. Although very similar in a number of respects, details of lighting, shading, and facial expression made one a parody, as opposed to an impermissible copy.

(But which is the parody…?) (What made you choose the one you chose?)

2. regarding the nature of the copyrighted original work…? OK, a bit of a blind alley here. Admittedly this fair use factor is of little use in determining parody – as even the U.S. Supreme Court agrees (in the “2 Live Crew” case).
3. use an amount and substantiality of the original as is necessary to recall and reference the original, but then inserting sufficient originality (and presumably originality that is mocking or critiquing or deriding or insulting or jeering or taunting or in some way chiding) as to separate the intended parody from the purpose of the original.

The photos above differ in very subtle but very significant ways – sufficient to qualify as parody in that instance.

This one is particularly hard – because it’s a bit like trying to define “funny.” Sometimes a very tricky thing to explain:
Interlude Part Deaux: Tommy DeVito: … I’m funny how, I mean funny like I’m a clown, I amuse you? I make you laugh, I’m here to fuckin’ amuse you? What do you mean funny, funny how? How am I funny?
Henry Hill: Just… you know, how you tell the story, what?
Tommy DeVito: No, no, I don’t know, you said it. How do I know? You said I’m funny. How the fuck am I funny, what the fuck is so funny about me? Tell me, tell me what’s funny!

And, Interlude: The Final Insult: A mashup of the Charles Schultz Peanuts characters giving voice to the GoodFellas dialog above. The Peanuts characters, the video of the Peanuts characters and the dialog from Goodfellas are each separately copyright protected content. So is the mashup a copyright violation, or permissible parody?

And is it funny?   (if you answered “no,” seek counseling).

And the last of the fair use rules; 4. the effect of the use on the potential market for or value of the original work.

But this too is of only limited use in determining parody because usually the owner of the original work would not grant a license (a purchased permission) to the parody artist; so an uncompensated fair use of the original material would not deprive the holder of the original work from a payment; the original material’s owner wouldn’t take the money even if it was offered.

Therefore fair use reference of the original in the parody typically would not affect the market or value of the original.

Parody – it’s just that simple!

Obviously not at all simple.

Which is why it may be important to involve an entertainment attorney early in your creative process, before you have spent months or years writing the script, or developing and producing the film – only to find out that it is NOT a fair use parody. But is instead an impermissible copyright violation, likely to be shut down the moment it sees the light of day.

Additional (and dense) reading:

Luther R. Campbell aka Luke Skyywalker, et. al., Petitioners v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164, 127 L.Ed.2d 500 (S.Ct. 1994);

Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2nd Cir. 1998)

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

**

Disclaimer: The above is for general information purposes only, is not legal advice and does not create any attorney/client relationship. Please seek legal counsel regarding your specific projects and needs.

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.

When you go out into the world you often meet the nicest people. And being prepared to meet those nice people is important – that old chestnut about only having one opportunity to make a first impression.

Assuming an introduction leads to conversation and some semblance of rapport, it is customary – make that STRONGLY ADVISABLE – to exchange contact information. Doing so in a professional and businesslike manner will foster that good first impression.

A simple business card is the preferred method.

Scribbling your contact details on a cocktail napkin is not. Nor is the impotent statement “I don’t have any cards; I probably should get some…”

Get some business cards!

It has never been easier or cheaper. Here are just a few online options:

http://gotprint.net/g/welcome.do

http://us.moo.com/

http://www.vistaprint.com

http://businesscards24.com/

I used to hate networking. Now I’m a big fan – great things can come of it.

Be ready. Get some business cards!

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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.

On Saturday, May 15, the Northwest Screenwriters Guild presents an informative and thought-provoking two-part session with veteran Hollywood television writers and producers Patric M. Verrone (also the immediate past president of the WGA West), and Maiya Williams.

Don’t forget to RSVP or purchase your tickets.

http://www.nwsg.org/events.html

Location:
Sorento Hotel
900 Madison Street
Seattle, WA 98104
Cost:
NWSG Members: FREE
Student Rate: $10
Partner Film Org Members: $10
General Public/Non-Members: $15

On Saturday, May 15, the Northwest Screenwriters Guild presents an informative and thought-provoking two-part session with veteran Hollywood television writers and producers Patric M. Verrone (also the immediate past president of the WGA West), and Maiya Williams.

I hope to see you there.

http://www.nwsg.org/events.html

Location:
Sorento Hotel
900 Madison Street
Seattle, WA 98104
Cost:
NWSG Members: FREE
Student Rate: $10
Partner Film Org Members: $10
General Public/Non-Members: $15