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  • The blog posts and information on this site is/are for general informational purposes only. The information contained herein is not intended to be complete or exhaustive, and may have been superseded by changes in the law. The information on this site does not constitute legal advice, nor does it form any attorney/client relationship between this Firm and the reader. Please seek legal counsel regarding your specific issues, projects and needs.

Archive for the ‘Fair Use’ Category

Filmmaker & Creatives Business Practices – 4 Must Do’s
Tuesday, June 4th, 2013

The unglamorous side of wildlife filmmaking!

The unglamorous side of wildlife filmmaking! (Photo credit: Paul Williams (Iron Ammonite))

Aspiring filmmakers and creatives often let the contract and business details be an afterthought, thinking “that’s not fun. Or creative. And I don’t have the budget for that un-fun, un-creative stuff.  I’m working with my friends… it’ll all be fine.”

But they’re unlikely to do so again after the many problems that arise (which they always do) and perhaps render their hard work practically and commercially unusable. Neglecting contracts and business formalities may prevent getting investors for your project, or may cause a host of other problems that mean a film or creative project cannot get interest or distribution.

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

1.  Form a Production Company through which the film must be made. Why?

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”), or from an accident involving 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 on the producers and those heading up the project, and potentially onto the investors – 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.

2. Get a contract with the writer(s) for the legal acquisition of the script or story –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.

Think that you are “friends with the writer” and you’re therefore “in this together?” Are you willing to bet the entire project and all your hard work on that assumption? What is it that they say when you “ass-u-me” something?

Creative partnerships crumble all the time. Without a written agreement in place from the VERY beginning, the entire project is at risk.

3. Investments – get lawyer drafted investment documents. Or risk having to refund all investments, fines, jail time, and lawsuits by the investors themselves.

Under the SEC and state securities rules, if you have taken someone’s money and have given them an expectation of a “return” on that money, you’ve probably sold a “security.”

Yes, even selling shares of your little film may well constitute a “security” in the eyes of the federal and state governments. That doesn’t mean you can’t take such investments. But it does mean that if you do so without following the proper legal requirements, you may have to give back ALL of the money taken for the project (yes, all investments – not just the one that the gov’ment found out about), and it may mean fines or even jail time.

And independent of those terrible consequences, failing to have the right legal language in investment documents leaves the production open to lawsuits by the investors if they become dissatisfied with… all sorts of things – how you’ve spent the money, how long it has taken to get a return on the money, the size of the return (or lack thereof).

Proper investment documents are as much for the protection of the film and filmmakers as they are for the protection of the investors.

4.  Production contracts – use them – ALWAYS. Without exception!   Like it or not, a film is a business.  Even the “auteur,” if he hopes to continue making filmic masterpieces, cannot ignore the business realities that filmmaking is expensive (even in this digital age), it takes money, and money rarely comes to one who does not handle it in a businesslike manner.

So even first effort indie films are a business – a proving ground to show that you can handle the business, artistic and technical demands of being a filmmaker.  And as such there are contracts that MUST be used in the work of this business; contracts that clearly state who owns what, who has rights to what, profit/interest divisions, etc. The who, what, when, where, why (perhaps) and how much regarding the business transactions involved: 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.

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Ed Sullivan clip and the Fair Use Analysis
Saturday, May 4th, 2013

A recent (March 2013) opinion by the U.S. Ninth Circuit Court of Appeals (covering the West Coast and many of Western states) provides an excellent analysis of U.S. copyright law and the fair use defense.

The Four Seasons

Cover of The Four Seasons

In SOFA Entertainment, Inc., v. Dodger Productions, Inc., the plaintiff, SOFA Entertainment, held the copyright to The Ed Sullivan Show, Ed Sullivan being the iconic maker of music and entertainment careers in the 50′s and 60′s. Dodger Productions produced the live stage musical Jersey Boys, which presented in a morphed live stage musical / documentary style, the formation, success and eventual break-up of the 60′s rock ‘n roll group, The Four Seasons.

At one moment in the Jersey Boys stage show, a brief video clip of The Ed Sullivan show was shown on stage, depicting Ed introducing The Four Seasons. Following that, live performers portraying The Four Seasons began a Four Seasons musical number on stage.

In the stage production, the Ed Sullivan clip is used to emphasize the historical and real life importance of Sullivan’s introduction of The Four Seasons, thereby showing the group’s importance in American music, and particularly in response to the then-occuring British invasion.

Ed Sullivan

Ed Sullivan (Photo credit: Wikipedia)

The lawsuit arose as Dodger Productions had not licensed the clip of Sullivan from SOFA Entertainment. SOFA sued Dodger alleging copyright infringement.

In a very clearly reasoned opinion, the Ninth Circuit laid out the fair use analysis. The four simple criteria of the test, however, belies an often tricky and nuanced question, which turns on the specific facts of each specific use of copyrighted material. The SOFA court even noted, “Many fair use cases still manage to approach ‘the metaphysics of the law…’”

The basic fair use test is as follows:

1. what is the purpose and character of the use (of another’s copyright protected material), including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and,

4. the effect of the use upon the potential market for or value of the copyrighted work.

Despite 4 seemingly simple factors, the inquiry within the inquiry goes deeper down the rabbit hole.

Regarding factor #1, the “purpose and character of the use,” the central inquiry is whether the new work is “transformative.” Does the new work “add something new” to the existing work – new expression, meaning or message?

In the Jersey Boys musical, the Court found that the production had used the clip as a “biographical anchor,” using the importance and relevance of an introduction on The Ed Sullivan show to demonstrate “evidence of the band’s enduring prominence in American music.”

Transformative? Yes. Element 1, satisfied in favor of fair use.

Factor #2 – The nature of the copyrighted work, recognizes that some works, “generally creative works, like fictional stories – ‘are closer to the core of intended copyright protection than others.’” The Court found that while the entire Ed Sullivan episode, or perhaps the performances contained therein, may have been more at the core of copyright, the brief clip at issue conveyed mainly factual information – who was about to perform.

By contrast, the Court may have reached a different conclusion on this factor had the clip been one of the creative performances in the episode, as opposed to this clip being more factual in nature.

Element 2, satisfied in favor of fair use.

Factor #3 is the amount and substantiality of the portion used – the qualitative amount and qualitative value of the original work used in relation to the defendant’s justification for the use.

SOFA admitted that the 7 second clip used was quantitatively insignificant, but argued that Dodger had attempted to capitalize on the central and most beloved part of The Ed Sullivan show, Sullivan’s introduction of popular new rock and roll acts.

The Court found that, because of the brevity of the clip and the simple factual information conveyed in the introduction, it was doubtful whether the clip alone qualified for copyright protection. Moreover, the Court found SOFA’s attempt to rely on Sullivan’s “trademark gesticulation and style” as an element of copyrightable “distinctive expression” to be misplaced.

“It is Sullivan’s charismatic personality that SOFA seeks to protect. Charisma, however, is not copyrightable.”

Element 3, satisfied.

Factor #4 – the market effect; whether the supposedly fair use had a negative impact on the market for the original work and the market for derivative works (other works based on the original work), including whether the supposedly fair use became “unrestricted and widespread.”

Review of this factor, in part, reflects back to the first element, and whether the new use was “transformative.” If the new use was “transformative,” it would perhaps not have a negative effect on the market for the original material. “Where the secondary use [the allegedly fair use - here, the clip used in the stage show] is not a substitute for the original and does not deprive the copyright holder of a derivative use, the fourth factor weighs in favor of fair use. … When the second use is transformative, market substitution is at least less certain.”

The Court found that Jersey Boys was not a substitute for The Ed Sullivan Show, the 7 second clip only appeared once in the stage production, the stage production was not being reproduced on DVD, which would have allowed for repeated viewing of the clip, and that Dodger’s use advanced only its own creation without reasonable threat to SOFA’s business model.

This particular finding does seem to ignore that part of SOFA’s business model was to license clips of its intellectual property, and Dodger’s “free” use deprived SOFA of revenue it would have  earned had Dodger paid to license the clip.

But no matter. According to the Court, element 4, satisfied.

Dodger’s use of the 7 second clip was deemed fair use.

The cost of Dodger proving its case – $150,000 in attorney’s fees and costs (at least). This is known because SOFA had lost a similar case previously, so the Court awarded Dodger’s attorney’s fees and costs, noting that SOFA should have known its claims in this case were likely to fail based on the outcome of the previous case.

Had SOFA not lost in a previous and similar case, it is entirely possible that Dodger would NOT have been awarded its attorneys fees and costs, thereby having paid $150,000 to defend its “fair use” of a 7 second clip it likely could have licensed for a few thousand dollars.

So while this case may support a project’s claim that their use of someone else’s copyright protected material is “fair use,” it must be considered whether a project can afford to fight that legal fight – even if certain of victory. Which, in litigation, is never certain.

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Gano Lemoine Quoted in International Business Times!
Thursday, February 28th, 2013

Photo: Sony Pictures

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.

“Generally, U.S. copyright law protects ‘original works of authorship’ that are fixed in a tangible form of expression,” said Gano Lemoine, a Los Angeles-based entertainment attorney. “Copyright law typically does not protect ‘improvisational speeches’ that have not been written or recorded. It is possible that the recording of Bradley Fetchet’s phone call from the World Trade Center was a copyright-protectable work, which would allow the copyright holder to prohibit its use without permission.”

But that right to prohibit use can be waived, Lemoine said, if the owner fails to take appropriate actions to preserve the copyright. In Fetchet’s case, the Daily News article noted that she “shared the [audio] message in past scenarios, including with the 9/11 Commission.”

“It may be that by providing her recording of her son’s message to government investigators and others, she may have unwittingly put the recording of her son into the public domain,” Lemoine added, “thereby losing any legal right to enjoin the filmmakers from using the audio, or otherwise seek damages.”

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.

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You can’t afford NOT to hire an entertainment lawyer.
Tuesday, February 26th, 2013

Fashion Care Laundromat, Albany, N.Y. - sprock...

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

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Screenplay Adaptation, w/ Pilar Alessandra, and ME!
Tuesday, December 4th, 2012

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.

Are you treating it like a business?
Friday, November 16th, 2012

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.

“Percy Jackson” film not substantially similar…
Sunday, September 16th, 2012

Yet another example of how a similar idea – perhaps a VERY similar idea, is insufficient basis for a successful copyright infringement or idea theft lawsuit. It is the very specific execution of the idea that is protectable, NOT the idea itself (unless there is a solid contractual or quasi-contract theory of theft).

Authors fails to show \”substantial similarity\” to their own work.

Top 4 Filmmaker “Must Do” Practices and Why !
Wednesday, April 11th, 2012

Aspiring filmmakers often let the contract and business details of film production be an afterthought, thinking “that’s not fun. Or creative. And I don’t have the budget for that un-fun, un-creative stuff.  I’m working with my friends… it’ll all be fine.”

But they’re unlikely to do so again after the many problems arise (which they always do) and perhaps render their hard work practically and commercially unusable. Neglecting contracts and business formalities may prevent getting investors for your film, or may cause a host of other problems that mean a film cannot get interest or distribution.

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

1.  Form a Production Company through which the film must be made. Why?

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”), or from an accident involving 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 on the producers and those heading up the project, and potentially onto the investors – 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.

2. Get a contract with the writer(s) for the legal acquisition of the script or story –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.

Think that you are “friends with the writer” and you’re therefore “in this together?” Are you willing to bet the entire project and all your hard work on that assumption? What is it that they say when you “ass-u-me” something?

Creative partnerships crumble all the time. Without a written agreement in place from the VERY beginning, the entire project is at risk.

3. Investments – get lawyer drafted investment documents. Or risk having to refund all investments, fines, jail time, and lawsuits by the investors themselves.

Under the SEC and state securities rules, if you have taken someone’s money and have given them an expectation of a “return” on that money, you’ve probably sold a “security.”

Yes, even selling shares of your little film may well constitute a “security” in the eyes of the federal and state governments. That doesn’t mean you can’t take such investments. But it does mean that if you do so without following the proper legal requirements, you may have to give back ALL of the money taken for the project (yes, all investments – not just the one that the gov’ment found out about), and it may mean fines or even jail time.

And independent of those terrible consequences, failing to have the right legal language in investment documents leaves the production open to lawsuits by the investors if they become dissatisfied with… all sorts of things – how you’ve spent the money, how long it has taken to get a return on the money, the size of the return (or lack thereof).

Proper investment documents are as much for the protection of the film and filmmakers as they are for the protection of the investors.

4.  Production contracts – use them – ALWAYS. Without exception!   Like it or not, a film is a business.  Even the “auteur,” if he hopes to continue making filmic masterpieces, cannot ignore the business realities that filmmaking is expensive (even in this digital age), it takes money, and money rarely comes to one who does not handle it in a businesslike manner.

So even first effort indie films are a business – a proving ground to show that you can handle the business, artistic and technical demands of being a filmmaker.  And as such there are contracts that MUST be used in the work of this business; contracts that clearly state who owns what, who has rights to what, profit/interest divisions, etc. The who, what, when, where, why (perhaps) and how much regarding the business transactions involved: 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.

Join me at the Screenwriters Network Attorney Panel
Wednesday, July 6th, 2011

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.

Contracts & Business Needs of Film Production – and why.
Friday, March 11th, 2011

AktNotarjalny-1923

Image via Wikipedia

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.

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

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